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2011 DIGILAW 1513 (BOM)

Rajkumar Kishanlal Awasthi v. Bagve

2011-12-12

A.S.OKA

body2011
JUDGMENT: 1. By this contempt petition, the Petitioner has alleged breach of the order dated 29th May, 2007 passed by the First Appellate Authority and the Deputy Commissioner of Police, Circle-III, Mumbai. The order is passed by the said Appellate Authority under the provisions of the Right to Information Act, 2005 (hereinafter referred to as “the said Act”). By the said order, copies of the certain documents were ordered to be provided to the Petitioner. The issue which arises for consideration is whether an Appellate Authority under the said Act is a Court within the meaning of the Contempt of Courts Act, 1971 (hereinafter referred to as “the said Act of 1971”). Under Section 2(b) of the said Act of 1971, it is provided that a willful disobedience to any judgment or order or process of a Court is a Civil Contempt. 2. The learned counsel appearing for the Petitioner invited attention of the Court to Section 19 of the said Act. The submission of the learned counsel appearing for the Petitioner is that the powers of adjudication have been vested in the Appellate Authority. Her submission is that the Appellate Authority is empowered to decide the rights between the parties after giving an opportunity of being heard to the parties. The learned counsel appearing for the Petitioner submitted that the Appellate Authority has thus all the trappings of a Court for the purposes of Section 2(b) of the said Act of 1971. The learned counsel pointed out that under the said Act, even a second appeal is provided against the decision in the first appeal and that the said appeal is maintainable before the State Information Commission. The learned counsel pointed out that as the First Appellate Authority has all the trappings of the Court including the right to penalize for the breach of its order. Therefore, a breach of the order of the Appellate Authority will be the breach of the order of the Court within the meaning of the said Act. The learned counsel relied upon a decision of the Full Bench of the Gujarat High Court in the case of Shaikh Mohammedbhikhan Hussainbhai and etc. Vs. The Manager, Chandrabhanu Cinema and others etc., [1986 Cri.L.J. 1543]. The learned counsel relied upon a decision of the Full Bench of the Gujarat High Court in the case of Shaikh Mohammedbhikhan Hussainbhai and etc. Vs. The Manager, Chandrabhanu Cinema and others etc., [1986 Cri.L.J. 1543]. The learned counsel submitted that all the tests laid down by the Full Bench of the Gujarat High Court in paragraph No.23 of the said decision are applicable to the present case. The learned counsel also relied upon a decision of the Division Bench of the Orissa High Court in the case of K.C.Nanda Vs. Certificate Officer [1971 Cri.L.J. 742]. The learned counsel invited attention of the Court to the definition of the Court under the Indian Penal Code. The learned counsel also relied upon the definition of the word “Judge” and “Court of Justice”. Lastly, the learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Brajnandan Sinha Vs. Jyoti Narain [ AIR 1956 SC 66 ]. She pointed out that the Apex Court was dealing with the question whether the Commissioner under the Public Servants (Inquiries) Act, 1850 was a “Court” under Section 2 of the Contempt of Courts Act, 1952. The learned counsel relied upon various paragraphs of the said judgment starting from paragraph No.15 of the said decision. 3. I have given careful consideration to the submissions. It will be necessary to make a reference to the decision of the Apex Court in the case of Jagadguru Annadanishwara Maha Swamiji Vs. V.C.Allipur and another [(2009) 4 Supreme Court Cass 625] : [2009 ALL MR SCR 1477]. The Apex Court considered the judgment of this Court as well as its own judgment in the case of Bharat Bank Ltd. Vs. Employees [ AIR 1950 SC 188 ]. Paragraph No.9 of the said decision reads thus: “ 9. In Bharat Bank Ltd. v. Employees this Court opined: (AIR pp. 190 & 195, paras 7 & 23) “7.Now there can be no doubt that the Industrial Tribunal has, to use a wellknown expression, “all the trappings of a court' and performs functions which cannot but be regarded as judicial.... * * * 23. ... There can be no doubt that to be a court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. * * * 23. ... There can be no doubt that to be a court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. However, by agreement between the parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a court. It appears to me that before a person or persons can be said to continue a court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State. In R. v. London County Council Scrutton, L.J. Gave the following meaning to the word 'court' or 'judicial authority': (KB p.233) '... It is not necessary that it should be a court in the sense in which this Court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a court; if it is a tribunal which has to decide rights after hearing evidence and opposition...' As pointed out in picturesque language by Lord Sankey, L.C. In Shell Co. of Australia Ltd. v. Federal Taxation Commr., there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial power. ... It was pointed out in the above case that a tribunal is not necessary a court in this strict sense because it gives a final decision, nor because it hears witnesses on oath, nor because two or more contending parties appear before it between whom it has to decide, nor because it gives decision which affect the rights of subjects not because there is an appeal to a court, nor because it is a body to which a matter is referred by another body.” (Underlines supplied) Thus, the Apex Court quoted with approval a decision of the British Court. 4. It will be also necessary to make a reference to another decision of the Apex Court in the case of K.Shamrao and others Vs. Assistant Charity Commissioner [(2003) 3 Supreme Court Cases 563]: [2003 ALL MR (Cri) 823 (S.C.)]. 4. It will be also necessary to make a reference to another decision of the Apex Court in the case of K.Shamrao and others Vs. Assistant Charity Commissioner [(2003) 3 Supreme Court Cases 563]: [2003 ALL MR (Cri) 823 (S.C.)]. In the said decision, the Apex Court referred to its earlier decision in the case of Brajnandan Sinha (supra) relied upon by the Petitioner. The Apex Court dealt with an issue whether the Deputy Charity Commissioner or the Assistant Charity Commissioner exercising powers under the Bombay Public Trusts Act, 1950 is a Court within the meaning of Section 2(b) of the said Act of 1971. Paragraph Nos.7 and 8 of the decision of the Apex Court in the case of K.Shamrao and others [2003 ALL MR (Cri) 823 (S.C.)] (supra) read thus: “7. In Brajnandan Sinha v. Jyoti Narain considering the question whether a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a court within the meaning of the Contempt of Courts Act, 1952, reference was made to the decision in Bharat Bank case and various other decisions and it was held by this Court that in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. 8. In Virindar Kumar Satyawadi v. State of Punjab it was laid down by this Court that what distinguishes a court from a quasijudicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a court.” (Underlines supplied) While holding that the Assistant Charity Commissioner or the Deputy Charity Commissioner is a Court, the Apex Court observed that the persons holding the said posts have to be either a Judicial Officer or a Member of the Bar. Paragraph Nos.15 to 17 of the said decision read thus: “15. Under Section 72, any person aggrieved by the decision of the Charity Commissioner under various provisions mentioned therein or on the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the court to set aside the said decision. It also, inter alia, provides that an appeal shall lie to the High Court, against the decision of the Court under subsection (2) as if such decision was a decree from which an appeal ordinarily lies. The matters relating to the public trust in respect whereof the jurisdiction is conferred on the officers appointed under the Act, but for the bar of jurisdiction of Civil Court, would be triable by the Civil Court as provided in Section 92 of the Code of Civil Procedure. A person to be appointed as a Deputy Charity Commissioner and or the Assistant Charity Commissioner, as provided in Section 5(2) of the Act, shall be either a judicial officer or a member of the bar. The officer is, therefore, required to have a legal background. As already noticed, the Assistant Charity Commissioner, in the present case, was a serving judicial officer of State Judicial Services whose services had been placed at the disposal of the Government to be appointed as an Assistant Charity Commissioner. 16. The officer is, therefore, required to have a legal background. As already noticed, the Assistant Charity Commissioner, in the present case, was a serving judicial officer of State Judicial Services whose services had been placed at the disposal of the Government to be appointed as an Assistant Charity Commissioner. 16. The scheme of the Act, the powers conferred on the Assistant Charity Commissioner and the perusal of the aforesaid provisions of the Act clearly show that the Assistant Charity Commissioner has to be a judicial officer or an officer with a legal background; has to hear parties wherever dispute is raised with regard to existence of a public trust or with regard to a property being trust property or otherwise and then give a definitive judgment after taking evidence having regard to the facts of the case and by application of law. The judgment is final unless interfered with in appeal or thereafter tested in appeal before the High Court. The jurisdiction of the Civil Court has been barred in the matters inquired into and decided by the Assistant Charity Commissioner. 17. The aforesaid provisions make it clear that the Assistant Charity Commissioner has not only the trapping of a judicial tribunal but also has power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary Civil Court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted.” (Underlines supplied) 5. In paragraph No.8, the Apex Court considered its decision in the case of Vrindar Kumar Satyawadi Vs. State of Punjab [1956 SC 153]. In paragraph No.8, the Apex Court considered its decision in the case of Vrindar Kumar Satyawadi Vs. State of Punjab [1956 SC 153]. One of the tests laid down by the Apex Court is that to enable a judicial Tribunal to be a Court within the meaning of the said Act of 1971, there must be a power to give decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement. In the case of Vrindar Kumar Satyawadi (supra), the Apex Court has observed that what distinguishes a Court from quasijudicial Tribunal is that, it is charged with a duty to decide the disputes in judicial manner and declare the rights of the parties by a definitive judgment. 6. Lastly, it will be necessary to make a reference to the decision of this Court (Coram: R.M.Lodha,J as his Lordship then was) in the case of Dhondu Hanmant Reshim Vs. State of Maharashtra and another [ 1997 (3) Mh.L.J. 344 ] [1997 (3) ALL MR 550] . The issue before this Court was whether the Collector exercising powers under Section 50(3) of the Maharashtra Land Revenue Code, 1966 of removal of encroachment made on the Government land as well as the Appellate Authority hearing the appeals under Section 50(5) of the said Code can be said to be the Court as contemplated by the said Act of 1971. A reference will have to be made in paragraph No.8 of the said decision which reads thus: “8. The expression “Court” is distinct and separate from a tribunal. A tribunal may have power to discharge quasi judicial functions as well as administrative functions but a Court is one which is vested with the judicial power inherent only in the Court and not in the tribunal. A tribunal may have trappings of the Court but that does not make tribunal a Court which is constituted by the State vested with power to discharge judicial functions. The character of determining an issue or adjudicating a dispute by itself would not make the tribunal a Court unless it has power to give decision or a definite judgment which has finality and authoritativeness.” (Underline supplied) This Court by relying upon a decision of the Privy Council observed that an Administrative Tribunal may act judicially but still remains an Administrative Tribunal as distinct from a Court strictly so called. In paragraph No.16 of the said decision, the learned Judge has observed thus: “ 16. Under subsection (3) of section 50 the Collector is empowered to prohibit or require the abatement or removal of encroachments on the land vested in the Government by issuing notice to such person and in lieu service thereof. The order passed by the Collector under section 50(3) is appealable and subject to revision in accordance with the provisions of the Code. The Divisional Commissioner, or for that matter the Additional Commissioner, is an appellate authority to hear and decide the appeal against the order passed by the Collector under subsection (3) of section 50. The power which is required to be exercised by the Collector under subsection (3) of section 50 or by the appellate authority under subsection (5) of section 50 is definitely not a judicial power invested in these authorities by the State. The Collector under the Maharashtra Land Revenue Code exercising the power under section 50(3) as well as the appellate authority hearing the appeals against the order passed by the Collector under section 50(5) apparently cannot fall in the hierarchy of courts as is contemplated in its terms. Basically they discharge administrative functions and at best some time may discharge functions akin to quasi judicial functions. But that does not make either the Collector or the Additional Commissioner the Court as is contemplated in its term or under the Contempt of Courts Act. Merely because the Collector is expected to pass the order of removal of encroachment after following principles of natural justice i.e. giving notice to the encroaches as required under subsection (3) of section 50, such power cannot be said to be in the discharge of judicial functions of Court. Similarly, the appellate authority who hears the appeals against the order of Collector under subsection (3) of section 50 and passes the order thereon, cannot be said to have been entrusted with the judicial functions of the Court. The order, that may be passed by the Collector or the appellate authority under section 50(3) or (5) as the case may be may affect the civil rights of the affected persons but that would not render the Collector or such appellate authority a Court. The order, that may be passed by the Collector or the appellate authority under section 50(3) or (5) as the case may be may affect the civil rights of the affected persons but that would not render the Collector or such appellate authority a Court. Merely because the Collector under subsection (3) of section 50 has to give notice and hold an enquiry whether the land vested in the Government has been encroached upon or not, such order cannot be said to be a decision given by Court in discharge of judicial functions not is such order final and decisive.” (Underline supplied) In fact, this Court by relying upon the observations of the Privy Council (1931 Appeal Cases 275) observed that an Administrative Tribunal may act judicially, but still it remains an Administrative Tribunal as distinct from a Court strictly called. This Court further observed that mere externals do not make a direction to an Administrative Officer by an ad-hoc Tribunal an exercise by a Tribunal of judicial power. Even the Full Bench of Gujarat High Court in the case of Shaikh Mohammed bhikhan Hussainbhai (supra) has held that an authority can be a Court provided the manner of exercise of power must partake of essential attributes of a Court. 7. Now coming back to the present case, Section 19 confers right of preferring first appeal to a person who does not receive decision in the time specified in Sub-Section (1) of clause (a) of Sub-Section (3) of Section 7 or is aggrieved by the decision of Public Information Officer. When the Public Information Officer denies information, an appeal is competent before the First Appellate Authority. Essentially, the power of the Appellate Authority is to direct the Public Information Officer to provide information. The Appellate Authority has power to hear the parties and direct that the Appellant is entitled to information sought by him. The vesting of the power to decide whether the information should be provided or not as per the request made under Section 6 of the said Act would not make the Appellate Authority a Court within the meaning of the said Act of 1971. The Appellate Authority under the said Act cannot be said to have a power to give a judgment which has finality and authoritativeness. The Appellate Authority under the said Act cannot be said to have a power to give a judgment which has finality and authoritativeness. It is not possible to accept that the Appellate Authorities under the said Act are charged with a duty to decide the disputes in a judicial manner and to declare the rights of the parties by a judgment. Even if the Appellate Authority under the said Act may act judicially, it does not become a Court. The Appellate Authority under the said Act cannot be said to have been entrusted with the judicial functions of a Court. The Appellate Authority does not have power to give a definitive judgment after considering the evidence having regard to the facts of the case and by application of law. Applying the tests laid down by the Apex Court and by this Court, the Appellate Authority may be a quasi Judicial Authority, but by no stretch of imagination, it can be said to be a Court within the meaning of Section 2(b) of the said Act of 1971. Therefore, in this case, the contempt petition is not competent and the same is rejected only on the ground that the First Appellate Authority is not a Court within the meaning of Section 2(b) of the said Act of 1971 and therefore, willful breach of the orders of the First Appellate Authority is not a civil contempt. Contempt Petition Rejected.