Malojirao Shitole v. C.G. Matkar And Anr.

1. By this application, the petitioner prays for the issue of a rule against the non-applicants for having committed contempt of this Court by issuing a notification No. 66 dated 4.12.1952, published in the Extra-ordinary Gazette of 4.12.1952 appointing 4.12.1952 as the date of resumption of all Jagir lands in the State of Madhya Bharat under Section 3(1) of the Madhya Bharat Abolition of Jagirs Act, 1951 and directing that "on and from the above date of resumption" all Jagir lands mentioned in the schedule annexed to the notification shall stand resumed to the State.

2. The background of this application, briefly stated is that sometime in December 1951 the petitioner and other persons filed applications under Article 226 of the Constitution of India challenging the validity of the Madhya Bharat Abolition of Jagirs Act (Act No. 28 of 1951). On the admission of those applications, this Court issued an order on 7.12.1951 restraining the State from giving effect to or acting in any manner by virtue of or under the Act, till the disposal of those petitions. The petitions were decided on 4.12.1952. It was held by this Court that the Act with the exception of certain provisions of Schedule 1 of the Act was valid. The petitioner was also granted leave to appeal to the Supreme Court. The order of this Court disposing of the applications under Article 226 was pronounced at about 11.30 a.m. on 4.12.1952. Immediately afterwards an application was presented to this Court on behalf of the petitioner praying that the status quo be maintained and the State be prohibited from issuing any notification under Section 3(1) of the Act till the disposal of the appeal which the petitioner proposed to file in the Supreme Court or at least till such time within which the petitioner could obtain an order of injunction from the Supreme Court.

The Advocate-General who was present in the Court at the time of the presentation of the said application, took notice of it. In order to enable the learned Advocate-General to reply to the application, we directed that the petition would be heard later in the day at 2.30 p.m. During the interval between the presentation of the application praying for a prohibitory order, and its hearing the Government issued the notification referred to above. The application for a temporary prohibitory order was dismissed by us on the ground that we had no jurisdiction to grant the order after the disposal of the applications under Article 226. We also observed that the petition praying for an order restraining the Government from issuing any notification, under Section 3(1) of the Act, had become infructuous as the Government had already issued the notification. The petitioner now complains that the issue of the notification constitutes a contempt of this Court.

3. Learned Counsel for the petitioner firstly urged that the notification in question would in law be deemed to have come into force from the midnight of 3.12.1952 and that as during the midnight of 3.12.1952 and the pronouncement of this Court's order on 4.12.1952 at about 11.30 a.m., the prohibitory order made by this Court in 1951 was operative, the issue of the notification constituted a breach of the order issued by this Court restraining the State from issuing any notification under Section 3(1) of the Act till the disposal of the application under Article 226. It was secondly urged that by issuing the notification the opponents 'tied down' the hands of this Court and interfered with the freedom of this Court in passing appropriate orders on the application made after the disposal of the petitions under Article 226 for a temporary order restraining the State from issuing any notification under Section 3(1) of the Act.

4. On giving my careful and prolonged consideration to the contentions advanced on behalf of the petitioner, I have come to the conclusion that this application must be rejected. The contention that inasmuch as the notification issued on 4.12.1952 would be deemed to have become operative from the midnight of 3rd December, it constitutes a breach of the prohibitory order of this Court which was then in force, is easily disposed of, if the terms of the prohibitory orders are borne in mind. By the order dated 7.12.1951 this Court directed the Government to forbear only until the disposal of the application under Article 226 from giving effect to or acting in any manner by virtue of or under the Madhya Bharat Abolition of Jagirs Act. The order did not prohibit the Government from exercising its powers under the Act after the disposal of the applications under Article 226 and from issuing a notification having such legal effect as has been attributed by the learned Counsel to the notification of 4th December. Therefore, I am at a loss to understand how the notification in question amounts to a disobedience of the prohibitory order of 7.12.1951. Even if the prohibitory order of 7.12.1951 is read as preventing the Government from issuing after the disposal of the applications under Article 226, a notification resuming Jagirs from the midnight of 3.12.1952, learned Counsel must show that the notification of 4.12.1952 has clearly that effect and there has been a wilful breach of the prohibitory order. It is well settled that the jurisdiction in respect of contempt proceedings should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.

Learned Counsel for the applicant took it for granted that the proposition that the notification issued on 4.12.1952 became operative from the midnight of 3.12.1952 was plain beyond argument. In my opinion the question is not free from doubt or difficulty. The rule laid down in Section 5(3) of the General Clauses Act 1897 does not afford; much help as it only applies to the construction of Acts and Regulations and is not made applicable to any notification that may be issued under an Act. The question as to when the notification in question can be said to have come into force has to be decided on the general principles. The notification in question no doubt appoints 4.12.1952 as the date of resumption of all Jagir lands and says "on and from the above date of resumption" all Jagir lands mentioned in the schedule shall stand resumed to the State. But there has been a great diversity of opinion as regards the legal effect of the use of the words "on and from" and the word "from" with reference to the computation of time and as to whether it must be treated as inclusive or exclusive of a terminus a quo. Some of the earlier English cases attempted to lay down hard and last rules on the point. But later on, it was realised that no universal rule could be laid down on the question as to whether in computing time from an act or event, the first day, that is, the day on which the act was done was included or excluded.

In - Lester v. Garland (1803) 33 ER 748 (A), Sir William Grant M.R. on a consideration of various earlier authorities observed as follows:

It is not necessary to lay down any general rule upon this subject; but upon technical reasoning I rather think it would be more easy to maintain that the day of an act done or an event happening ought in all cases to be excluded than it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. The effect is to render it a sort of indivisible point so that any act done in the compass of it is no more referable to any one, than to any other portion of it, but the act and the day are co-extensive; and therefore the act cannot properly be said to be passed until the day is passed. But it is not necessary to lay down any general rule; whichsoever way it should be laid down, cases would occur, the reason of which would require exceptions to be made.

5. Again in - re North; Ex parte Hasluek (1895) 2 QB 264 (B), Smith L.J. said that "in the reckoning of time each case must depend on its own circumstances and subject, matter". To the same effect are the observations of Kelly C.B. in - Isaacs v. Roya Insurance Co. (1870) 18 W R 982 (C) and of Chitty J. in - Railway Sleepers Supply Co. In re (1895) 29 Ch D 204 (D). In Stroud's Judicial Dictionary, it is said that "from" is akin to "after" and when used with reference to computation of time, for example, from a seated day prima facie excludes the day of the date. There is also authority to say that the words "from" and "on and from" have the same meaning. See - Sidebotham v. Holland (1895) 1 QB 373 (E). My object in referring to those various authorities is only to show that the question whether the day on wrack* the notification was issued is to be included or excluded and whether the notification became operative at midnight of the 3rd December 1952 does not admit of a clear and easy answer, and that being so, the petitioner cannot say that there is a clear case of wilful, disobedience for this Court to exercise the Extraordinary jurisdiction that it possesses in matters of contempt. The petitioner is not entitled to invoke this special jurisdiction of the High Court by way of proceedings for contempt of court for a decision on the important and complicated collateral question as to when the notification became operative.

6. The petitioner's contention that the act of the Government in issuing the notification after receiving a notice of the petitioner's application praying for a prohibitory order and before its hearing amounts to a contempt of court, involves the assumption that, the presentation of an application for stay or for a temporary injunction and the giving of the notice of the same to the opposite party itself operates as a stay order or a temporary injunction till the hearing of the application. I know of no authority for any such assumption. No doubt by the issue of the notification the petitioner's application for a prohibitory order was rendered infructuous. But to say that even in the absence of any interim prohibitory order from the Court, or of an undertaking by a party, it is not (sic) contempt for the party to do any act resulting in some proceedings pending before the Court being rendered infructuous and that if lie does, then the act amounts to an interference with the course of justice, is to assort the proposition that a party should anticipate orders of this Court even in his legitimate actions. Such a proposition appears to me wholly unwarranted, No authority was cited by learned Counsel for the petitioner in support of his contention. But I think it is relevant here to refer to a decision of the Rangoon High Court in - S.P.L.P. Narayanan Chettyar v. Doraikkannu 1941 Rang LR 747 (F), which dealt with a problem somewhat similar to the one before us. In that case the Court came to a decision to appoint a receiver but did not name any officer t>r individual as receiver. In the meantime a party who was aware of the Court's decision to appoint a receiver collected and disbursed moneys which it was intended the receiver should collect and disburse, and thus rendered the appointment of a Receiver ineffective to a certain extent. Thereafter, contempt proceedings were instituted against the party collecting the rent.

It was held by the Rangoon High Court that for a party bound by a judgment to do anything Which would make that judgment ineffective, was not in itself a contempt of court and, therefore, the act of the person, who was a party to the proceedings and who knew of the decision of the 1 Court to appoint a receiver, in collecting and disbursing moneys did not amount to a contempt of court. The same principle applies here 'a fortiori'. Learned Counsel for the petitioner characterised she action of the Government in issuing the notification as one done in "ugly haste". The action of the Government may be undignified, ill-advised, ill-considered and done in an indecent hurry. But on such considerations of propriety the jurisdiction of this Court to commit for contempt cannot be exercised. It must be remembered that the application for the grant of an order restraining the State from issuing any notification tinder Section 3(1) of the Act was dismissed by us also on the ground that we had no jurisdiction to make any such order after the disposal of the petitions under Article 226. It cannot, therefore, be maintained that the Issue of the notification by the Government caused a real prejudice to the applicant and thus there was a substantial Interference with the due course of Justice. The fact that If a different view had been taken by the Court on the question of Jurisdiction, then the Court would have found Itself hampered by the notification In Issuing the prohibitory order prayed for and that the notification, therefore, theoretically tendered to Interfere with the administration of Justice is not, in my opinion, sufficient to hold that the issue of the notification constitutes such a contempt as this Court would be Justified in dealing with summarily in the exercise of its jurisdiction in contempt. As was said by Rankin C.J. in - Anantalal v. A.H. Watson AIR 1931 Cal 257 (G):

The Court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court's action is a practical purpose, and it is reasonably clear, on the authorities, that this Court will not exercise its jurisdiction upon a mere question of propriety.

7. It has been stated in para. 13 of the petition that the Government conceived of the idea of issuing the notification long before the delivery of the order of this Court disposing of the petitions under Article 223 and accordingly set its machinery in motion to prepare the matter for exercising the power under Section 3 of the Act and the date of the notification was "wrongly given as 4.12.1952". I do not see anything wrong in a party keeping himself in readiness, with an intelligent anticipation of the Court's order, to take a particular action. The petitioner does not allege that the notification bearing the date 4.12.1952 was actually issued and published before the delivery of this Court's order with regard to the petitioners under Article 226. The petitioner also complains in para. 16 that the Government have by issuing a press communique attempted to nullify the Supreme Court's order restraining the State from proceeding further under the Act. As to this, it is sufficient to say that the petitioner should address the complaint to the Supreme Court and not to this Court.

8. For the above reasons, I am of the opinion that this application should be dismissed.

Shinde, C.J.

9. I agree.

Chaturvedi, J.

10. I concur.