judgement:
No. 435 of 1958.
Appeal from the judgment and order dated September 20, 1956 of the Allahabad High Court in special Appeal No. 243 of 1955.
Naunit Lal for the appellant.
G.N. Dikshit and C. P. Lal for the Respondent.
February 8.
The following Judgment of the Court was delivered by MUDHOLKAR, J. This is an appeal by certificate from the judgment of the High Court of 107 Allahabad reversing the decision of a single Judge of that Court directing the issue of a writ of Mandamus against the respondents under article 226 of the Constitution.
The points which arise for consideration in the appeal are whether the appellant who was at the relevant time the lessee of a right to collect tolls from persons, vehicles etc., crossing the river by public ferry at Pipraghat, District Ballia was bound to allow State carriage buses belonging to the Government of Uttar Pradesh to cross the river by the ferry without collecting any toll or was entitled to claim abatement of rent from the Government under the proviso to s.15 of the Northern India Ferries Act 1878 (hereafter referred to as the Act).
In order to appreciate the points a few facts need to be stated.
There is a ferry at the village Pipragbat, district Ballia for crossing the river and the right to collect tolls in respect of that ferry is put to public auction annually.
The highest bidder at the auction gets the right.
The rent or licence fee is collected from him in monthly installments during the year with respect to which the right was purchased by the licensee.
The appellant was the highest bidder for the year 1954 and the licence fee payable by him was Rs. 31,751/ .
The practice right upto 1954 was to allow the lessee to collect a toll of Rs. 5 1 0 from every stage carriage bus.
Till March 9 of that year only privately owned stage carriage buses used to ply on the route in which the ferry crossing was comprised.
Thereafter the route has been taken over by the Roadways Department of the State of Uttar Pradesh.
From March 9 to March 16, the appellant realised tolls at Rs. 5.1 0 from the State owned stage carriage buses when he was informed by a letter by the first respondent that he should allow the Roadways buses to use the ferry for crossing and recrossing the river on credit till March 31, 1954 and should thereafter submit his bill with 108 respect to the tolls to the Roadways Department of the Government He was also informed that further orders will be issued on April 1, 1954.
The appellant accordingly allowed the Roadways buses to use the ferry for crossing and recrossing the river and submitted his bill to the Roadways Department on March 31, 1954.
That bill was, however, not paid.
On April 1, 1954 he received two communications from respondent No. 1 by one of which hi) was informed that no toll is leviable on the Roadways vehicles and by another he was asked to pay the monthly installment of the licence fee without making any deduction therefore consequent upon the exemption of the Roadways buses from tolls.
The appellant had moved the High Court of Allahabad.under article 226 of the Constitution for the issue of a writ directing the respondent "to refrain from precluding the petitioner from charging tolls from the Roadways buses", to issue a writ commanding the respondents to allow abatement to the appellant and to issue an interim direction to the respondents asking them to refrain from realising the unpaid monthly installments of the licence fees till the decision was given.
Before the petition was decided the appellant 's licence had run out and, therefore, at the hearing the appellant confined himself to one relief, that is, commanding the respondents to allow rebate one account of the exemption of the Roadways buses from liability to pay the tolls.
The petition was, however, not amended.
We may incidentally mention that apart from the reliefs above referred to, the appellant claimed two more reliefs, one of which was to pass any such other and further order as may be deemed fit and proper.
The learned single Judge of the High Court who decided the petition in the first instance came 109 to the conclusion that the appellant was entitled to abatement of rent under the third paragraph of a. 15 of the Act and directed the issue of a writ to the respondents directing them to " 'perform their statutory duty relating to abatement of rent" payable by the appellant consequent on the exemption of Roadways buses from payment of tolls under the aforesaid provision before claiming or recovering arrears of rent from him.
The respondents preferred an appeal under the Letters Patent which was heard by a Division Bench of the Allahabad High Court.
The learned Judges held that a licensee is not entitled to abatement of rent unless the Government makes a declaration under s.15 of the Act subsequent to the grant of licence to him.
It pointed out that the G.O. No. 1946/17 ,51 dated December 11, 1951 upon which reliance was placed by the learned single Judge being prior in point of time to the grant of the licence to collect tolls to the appellant, did not entitle him to claim abatement.
It, however, held that the appellant may be entitled to claim abatement of rent or licence fee under the general law but that such a relief could be claimed only in a suit but not in a proceeding under article 226 of the Constitution.
They thus allowed the appeal and dismissed the petition.
Section 15 of the Northern India Ferries Act, 1878 runs thus : "Toll., according to such rates as are from time to time fixed by the State Government, shall be levied on all persons, animals, vehi cles and other things crossing any river by a public ferry and not employed or transmitted on the public service: Provided that the State Government may from time to time, declare that any persons, animals, vehicles or other things shall be exempt from payment of such tolls.
110 Where the tolls of a ferry have been let under section 8, any such declaration, if made after the date of the lease, shall entitle the lessee to such abatement of the rent payable in respect of the tolls as may be fixed by the Commissioner of the division or such other officer as the State Government may, from time to time, appoint in this behalf by Dame or virtue of his office.
" The proviso to the section confers upon the State Government power to declare from time to time any , persons, animals, vehicles etc., exempt from payment of such tolls.
Before the question of allowing abatement of rent or licence fee can arise it must first be established that there was a valid exemption with respect to any vehicles etc., under section 15 of the Act.
The section also provides that where such declaration is made subsequent to the grant of licence to collect tolls under section 8 the licensee is entitled to abatement of rent: The Government order to which reference has been made in the two judgments of the High Court runs as follows: "Subject: Exemption from payment of toll.
I am desired to say that a question has been raised whether the Roadways Motor Vehicles should be exempt from payment of ferry tolls while crossing any river by a public ferry.
Government have given their full consideration to this matter and have come to the conclusion that the motor vehicles run by the Roadways with the operational staff accompanying them on duty fall under the exemption granted from payment of ferry toll in paragraphs 2(a) of notification No. 252/ IX 209/(10) dated March 16, 1925 111 (published on page 347 of the District, Board Manual).
2.lam, however, to observe that the passengers traveling in these vehicles with their goods and all the private goods, being transported in the Roadways trucks shall be liable to the payment of tolls as heretofore according to the rates fixed by the Local Government.
3.The District Magistrate, District Board and ferry contractors in your division may please be informed accordingly.
" It may be pointed out that this order, if what appears to be merely a communication addressed to certain authorities can be regarded as a Government order, does not, itself confer any exemption with respect to the buses run by the U. P. Roadways but sets out the opinion of the Government that such buses must be regarded as being exempted under a notification of March 16, 1925 issued under "section 15 of the Act.
That notification reads thus: "2.
The following shall be exempt from the payment of tolls: (a)All persons animals and vehicles crossing any river by a public ferry when employed or transmitted on the public or District Board service.
" Admittedly at that date the State was no running any bus services in the United Provinces (now the State of Uttar Pradesh).
May be there were no Government owned buses at all in any other province of India at that time.
Moreover it would not be reasonable to assume that a State enterprise of this kind was even in the contemplation of.
the LT.
P, Government at that time.
At that time, apart from running some railways the State had not entered the commercial field.
It is in the light of these facts that the language of the notification of March 16, 1925, must be interpreted.
112 What the notification exempts is a vehicle crossing the river on 'public or district board service '.
Could it be said that plying motor buses by way of commercial activity is running it on a public service? It is undoubtedly not easy to define what is "public service" and each activity has to be considered by itself for deciding whether it is carried on as a public service or not.
Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions.
About these there can be no doubt.
Similarly a pure business undertaking though run by the Government cannot be classified as public service.
But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category.
The mere fact that activity may be useful to the public would not necessarily render it public service.
An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private indi viduals and is carried on by government with a distinct profit motive.
It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public.
It does not, however, cease to be a com mercial activity if it is run with profit motive.
Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides.
Since that is so, it is difficult to see what difference there is between the activity carried on by private individuals and that carried on by Government.
By reason of the fact that a commercial undertaking is owned and run by the State 113 it does not ipso facto become a 'public service '.
It is not disputed before us that the Roadways department of the Government of U. P. is running a profit making and a profitable activity by excluding every kind of competition.
In the circumstances, therefore, we find it impossible to hold that its vehicles crossing over ferries can be regarded as crossing on public service.
They are, therefore, not entitled to any exemption under the notification of March 15, 192 5.
Since they are not entitled to any exemption the question of abatement of rent does not arise.
It is true that the petitioner, as already stated, confined himself at the stage of arguments in the High Court to the relief of abatement, because of change of circumstances which took place between the date of filing his petition and its hearing.
He did so evidently upon a misunder standing of the legal position with regard to the scope of the notification of March 16.
However, the appellant has raised ,in alternative contention in his Statement of the case to the effect that the Roadways buses which carry passengers are used by the Government for carrying on a commercial undertaking and that; there fore they do not come within the exemption made by the notification of the year 1925.
In view of this and of the fact that the petition which contains a prayer for grant of ,other relief ' has not been amended and is thus in its original form we see no difficulty in granting appropriate relief to the appellant.
In the result we allow the appeal and set aside the judgment of the Division Bench as well as of the single judge of the High Court of Allahabad and direct that a writ in the nature of mandamus shall issue to the respondents directing them to pay to the appellant full tolls with respect to every 114 crossing of the, Roadways buses over the ferry between March 16, 1954, and the date on which the licence in favour of the appellant expired.
The costs of the appellant here and in the High Court will be borne by the respondents.
Appeal allowed.

summary:
The appellant being the highest bidder at a public auction got the right to collect the toll in respect of ferry for crossing the river of Piprighat for the year 1954.
The practice upto 1954 was to allow the licensee to collect the toll from every stage carriage bus.
Till March of the year 1954 only privately owned stage carriage buses used to ply on the route.
Thereafter the route was taken over by the Roadways department of the State of Uttar Pradesh.
The applicant was informed inter alia that no toll was leviable on the Roadways Vehicles and was asked to pay the monthly installments of the license fee without making any deduction therefore consequent upon the exemption of the Roadways buses from tolls.
The point for consideration inter alia is whether the 106 appellant was bound to allow the state carriage buses of U.P. Government to cross the river by ferry without collecting any toll.
Held, that the notification No. 252/IX 209/(10) dated March 16, 1925 exempts a vehicle crossing the river on 'public or district board service ', and it could not be said that plying motor buses by way of commercial activity is running it on a public service.
The vehicles of the Roadways department of the Government of Uttar Pradesh crossing over ferries cannot be regarded as crossing on public service.
It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensur ing the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public, but it does not cease to be a commercial activity if it is run with profit motive.
The vehicles of the Roadways crossing the river cannot be exempted under the Notification of March 15,1925.
Held, further that activities undertaken in the exercise of the sovereign power of the state or of Governmental functions are undoubtedly to be regarded as public services but a pure business undertaking though run by the Government cannot be classified as public service.
An activity however beneficial to the people and however useful cannot reasonably be regarded as public service and cease to be a commercial undertaking if it is of a type which may be carried on by private individuals and is carried on by Government with a distinct profit motive.
By reason of the fact that a commercial undertaking is owned and run by the State, it does not ipso facto become a "public service".


judgement:
minal Appeal No. 187 of 1959.
129 Appeal by special leave from the judgment and order dated August 18, 1958, of the Punjab, High Court in Criminal Original No. 20 of 1958.
Gopal Singh and P. D. Menon, for the appellants.
R. section Gheba, for respondent No. 1. 1962.
February 8.
The Judgment of Das and Subba Rao, JJ, was delivered by Das, J., Dayal, J. delivered a separate judgment.
S.K. DAS, J. This is an appeal by special leave from the judgment and order of the Punjab High Court dated August 18, 1958 by which the said Court found the two appellants guilty of contempt of court and.
instead of committing them for such contempt, administered a warning to them and directed them to pay Rs. 50/ each as costs of the respondent Gurbachan Singh.
The two appellants before us bear the same name.
One of them was the Sub Divisional Officer, Sirsa, District Hisear and the other Naib Tehsildarcum Managing Officer, Sirsa, same district at the relevant time.
In this judgment we shall call the Sub Divisional Officer as the first appellant and the Naib Tehsildar as the second appellant.
The facts alleged against the appellants were these.
One Budh Singh, a displaced person, was allotted some land in village Jagmalera, Tehsil Sirsa, District Hissar.
The land allotted to Budh Singh was, it was stated by the appellants, forcibly occupied by the respondent Gurbachan Singh.
The respondent was not a legitimate allottee and the appellants, who were concerned in their official capacity with the allotment and management of land for displaced persons, were naturally anxious to oust the respondent and deliver possession to Budh Singh of the land allotted to him.
On May 9. 1958 appellant No. 1 made an order that Budh Singh and other allottees like him would be given possession ' of the land, allotted to them.
The date fixed for such 130 delivery of possession was May 20, 1958.
On May 16, 1958 Gurbachan Singh and a number of other persons who were similarly threatened with dispossession filed petitions to the High Court under article 226 of the Constitution challenging the legality of the action threatened against them.
These petitions were put up before the learned Chief Justice on that very day, namely, May 16, 1958, when he issued an order staying delivery of possession till May 19, 1958, when the petitions were to come up for admission before a Division Bench, On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958.
In the High Court the appellants did not dispute that the first order staying delivery of possession up to May 19, 1958 was communicated to them on May 19, 1958 on which date the notice from the High Court reached Sirsa.
It appears that a notice of the second order extending the stay of delivery possession till May 23, 1958, was not officially communicated to the appellants till May 21, 1958.
The allegation on behalf of the respondent was that on May 20, 1958, which was the relevant date, the two appellants were informed by certain interested persons, to whom we shall presently refer, that in extension of the stay order up to May 23, 1958, had been granted by the High Court ' In spite of this information, however, the second appellant, in consultation with and under instruction, of the first appellants formally dispossessed the respondent and handed over possession of the land to Budh Singh.
In these circumstances the allegation on behalf of the respondent was that the two appellants bad committed contempt of court by disobeying the order of the, High Court staving delivery of possession till May 23. 1958.
The respondent made an application, to the High (court, for taking suitable action against the two appellants.
This application was made, oil May 27, 1958.
On this application the High Court 131 issued notice and after hearing the parties, Falshaw, J. (as he then was) who dealt with the application came to the conclusion that the two appellants were aware of the order of the High Court extending the operation of the stay order and yet they disobeyed the said order by dispossessing the respondent and handing over possession to Budh Singh.
He held them guilty of contempt of court, but at the same time expressed the opinion that the appellants honestly believed that they were not bound to hold their hands in the absence of an official communication of the 'High Court 's order extending the operation of the stay order.
In this view of the matter, the learned Judge instead of committing the two appellants for contempt of court merely administered a warning to them and directed them to pay the costs of the respondent.
On behalf of the, appellants several points have been urged in support of their contention that they were not guilty of contempt of court.
Firstly, it has been contended that on the materials on the record, the High Court was wrong in proceeding on the footing that the two appellants were informed by the interested parties that an extension of the stay order up to May 23, 1958, had been granted in the case of the respondent.
It has been argued before us that on May 20, 1958, the appellants did not know that the stay order had been extended till May 23, 1958, in the writ petition filed on behalf of the respondent Gurbachan Singh, though in another case of Didar Singh relating to allotted land in the same village, the appellants were informed by an advocate that the stay order had been extended till May 23, 1958.
It has been contended before us that in the absence of positive evidence fixing the two appellants with knowledge of the extension of the stay order in the particular case of the respondent, the High Court was wrong in finding that the two appellants had willfully disobeyed the order of the High Court.
132 In order to appreciate this argument urged on behalf of the appellants it is necessary to state some more facts.
In para.
17 of the application which the respondent made to the High Court for taking necessary action against the appellants for alleged contempt of court, it was stated that at 6 30 a.m. on May 20, 1958, two persons named Bir Singh and Avtar Singh went personally to the house of appellant No. 2 and told him that the stay order had been extended by the High Court and that they had been informed by the advocate on telephone.
This allegation was supported by an affidavit made on behalf of the respondent.
Appellant No. 2, however, denied this allegation in his counter affidavit.
In paras.
18, 19 and 20 of his petition the respondent stated that at about 7 40 a.m. on May 20, 1958 a written application was filed before appellant No. 2 in which it was stated that the High Court had stayed delivery of possession till May 23, 1958; this application was drafted by an advo cate named Ganga Bishan, who acted on behalf of Didar Singh.
The application was presented to appellant No. 2 in presence of two other persons named Mastan Singh and Teja Singh.
Thereafter, an affidavit was also made on behalf of Didar Singh.
This affidavit was presented to appellant No. 2 'at about 8.15 a.m.
Thereafter, appellant No. 2 went in a 'jeep ' to appellant No. 1 in order to consult the latter.
Appellant No. 2 saw appellant No. 1 in the latter 's court room.
He came out within a few minutes, and told Ganga Bishan that the affidavit should be presented to appellant No. 1.
Thereupon, another application was written on behalf of Didar Singh and this was presented to appellant No. 1 supported by the affidavit already made on behalf of Didar Singh.
Appellant No. 1 did not, however, pass necessary orders on the application till about 10 a.m., when he made an endorsement to the effect that the Tehsildar, Sirsa, should take 133 necessary action, When the application was taken to the Tehsildar, he noted on it that the Naib Tehsildar, namely, appellant No. 2 had already left for the village to deliver possession.
Thereupon Avtar Singh, Bir Singh, Didar Singh and Mastan Singh went to village Jagmalera where the lands lay and again met appellant No. 2.
The application made to appellant No. 1 with his orders thereon was shown to appellant No. 2.
It was alleged that appellant No.2 was also shown the wording of the stay order as received by_ the party through a special messenger.
Appellant No. 2, however, replied that he had been ordered to dispossess the respondent and insisted on his proceeding with the dispossession.
In his counter affidavit appellant No. 2 admitted that on May 20, 1958 an application was presented to him by Didar Singh at about 7 40 a.m.
He further admitted that an affidavit in support of the application was also presented to him.
Appellant No. 2 then made the following significant statements.
"On receipt of these documents I told Shri Didar Singh that I could not act on the application and suspend the proceedings for dispossession unless I was shown the order of stay alleged to have been made by the High Court.
" Appellant No. 2 explained his conduct by referring to the background of quarrel and enmity between the parties which had led to several criminal cases between them.
Appellant No. 2 said in his counter affidavit that with this background of enmity he felt that though Didar Singh was an interested party, it would not be safe to accept the statements of facts contained in the application or affidavit made on behalf of Didar Singh at their face value.
Appellant No. 2 also admitted that he consulted appellant No. 1, who also advised that it would not 134 be safe, to act on the statements made in the application or affidavit.
Appellant No. 2 also admitted that Ganga Bishan Advocate, presented the applications to him.
He also admitted that the application which was filed by Ganga Bishan to appellant No. 1 was received back with the orders of appellant No. 1 thereon at about 6 p.m. on May 20, 1958, while appellant No. 2 was returning from the village.
Appellant No. 2 denied that he was shown the wording of the stay order of the High Court.
He admitted, however, that he was asked not to proceed with delivery of possession on account of the High Court.
Appellant No. 1. also made similar statements in his counter affidavit.
He admitted that at about 9 a. m. on May 20, 1958 an application supported by affidavit was made to him on behalf of Didar Singh and be then endorsed the application to the Tehsildar for necessary action.
Unfortunately, the applications which were made to appellants 1 and 2 have not been filed and we do not know the precise contents of the two applications.
We have, however, affidavits made on behalf of Didar Singh, Teja Singh, Ganga Bisban and Avtar Singh.
The learned Advocate for the parties have taken us through those affidavits.
The argument presented on behalf of the appellants is that though they knew of the extension of the stay order in Didar Singh 's case by reason of the application and affidavit filed on his behalf before them, they did not know that a similar extension of the stay order had been granted by the High Court in the other cases as well.
This argument has been pressed before us with some vehemence and we proceed now to consider it.
It is worthy of note that such an argument which goes to the very root of the matter was not presented to the High Court.
It is not disputed that ",disobedience of a judgment or order requiring a person to do any act other than the payment of money, or to 135 abstain from doing anything is a contempt of court punishable by attachment or committal" ; but disobedience, it is argued, if it is to be punishable as a contempt, must be willful ; in other words, the party against whom a proceeding by way of contempt is taken must know that order before, it can be said that he has disobeyed it.
It is somewhat surprising that if the stand of the appellants was that they did not know of the order made by the High Court on May 19, 1958, in the respondent 's case, such a point was not urged in the High Court.
Falshaw, J., (as he then was) said in his judgement that it was not in dispute before him that on the morning of May 20, 1958, both the appellants were informed that an extension of the stay order upto May, 23, 1958, had been granted by the High Court.
This state ment of the learned Judge must have reference to the case of the respondent which he was considering.
Apart, however, from the point that, such an argument on behalf of the two appellants was not presented in the High Court, it appears to us that on the affidavits made available to the Court, the only reasonable inference is that though the application and the affidavit were made on behalf of Didar Singh, both the appellants were informed that the High Court had granted an extension of the stay order in all 4 he cases.
It is admitted on both sides that there were three cases in which delivery of possession had to be given of lands in village Jagmalera.
It is also not seriously in dispute that on May 9, 1958, appellant No. 1 made an order directing that delivery of possession should be given to the allottees of their respective areas and persons in unauthorised occupation would be dispossessed.
On May 16, 1958 three writ petitions were made which were placed before the Chief Justice who made an interim order of stay lasting for three days.
On May 19, 1958 the writ petitions were placed before a Division Bench for admission and that Bench 136 extended the stay order till May 23, 1958.
These are the admitted facts.
It is also, admitted that the respondent Gurbachan Singh did not appear before the appellants on May 20, 1958, a fact which has been emphasised by the learned Advocate for the appellants.
Lot us, however, see what the affidavits filed in the case show.
Teja Singh said in his affidavit that Harbans Singh Gujral, who was the advocate acting on behalf of the petitioners in all the, cases, told him on the telephone on May 19, 1958 that the High Court had extended the stay order in all the cases upto May 23, 1958.
Teja Singh accompanied Didar Singh, Ganga Bishan, Mastan Singh and others to the village on May 20, 1958, and he said that an application was made to appellant No. 2 in which it was stated that the stay order had been extended by the High Court.
The affidavit of Ganga Bishan is very significant in this connection.
He said that on May 20, 1958, he drafted the application which was later made to appellant No. 2.
Ganga Bishan said that it was stated to appellant No. 2 that the stay order made by the High Court related to all the cases of village Jagmalera.
He further said that appellant No. 2 was informed that stay of delivery of possession had been extended by the High Court upto May 23, 1958 ; appellant No. 2, however, wanted to be ,shown the order of the High Court ; thereupon an affidavit of Didar Singh to the effect that the stay order had been extended by the High Court upto May 23, 1958, was filed.
Ganga Bishan also said that appellant No. 1 was also informed that the High Court had extended the stay order upto May 23, 1958.
The affidavits made on behalf of Didar Singh and Avtar Singh were also to the same effect.
In view of these affidavits we find it very difficult to hold that the.
appellants knew of the stay 'order only in Didar Singh 's case but did not know of the stay order in the other oases.
It is worthy of note here that 137 in the counter affidavits filed on behalf of the appellants the point was made on their behalf was that they considered it unsafe to rely on the applications and affidavits made, in view of the background of enmity between the parties.
The two appellants did not say in their counter affidavits that they came to know of the stay order only in one case and not in the others such a point does not appear to have been specifically made on behalf of the appellants at any stage of the proceedings in the High Court.
Therefore, we have come to the conclusion that the appellants knew of the order of the High Court in all the cases and it is not correct to say that the appellants knew of the order of the High Court only in one case and not in the others.
We find it difficult to believe that Ganga Bishan would not tell the appellants that the High Court had extended the stay order in all the three cases of the village Ganga Bishan says in his affidavit that he did tell the appellants of the extension of the stay order in all the three cases and there was no counter affidavits on behalf of the appellants traversing the statements made by Ganga Bishan.
We must, therefore, overrule the first point urged on behalf of the appellants.
The second point which has been urged on behalf of the appellants is that in the absence of an official communication of the order, they were justified in not acting on what they came to know from interested parties and their advocate.
The learned Advocate for the appellants has submitted that in a case of this nature, before willful disobedience of the order of the High Court could be imputed against the appellants, it was legally essential that the order should be officially communicated or served on the appellants and in the absence of such communication or service, the proceeding for contempt must fail.
We are unable to accept this contention as correct.
138 The legal position has been very succinctly put by Oswald: "The judgment or order should be served on the party personally, except in the following cases: (1) prohibitive orders, the drawing up of which is not completed; (2) orders em bodying an undertaking to do an act by a named day; (3) orders to answer interrogatories or for discovery or inspection of documents: (4) where an order for substituted service has been made; (5) where the respondent has evaded service of the order.
In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been 'granted, if it be proved that he had notice of the order aliunde, as by telegram.
or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced.
, or when the motion was made, although he left before the order was pronounced.
" (Oswald 's Contempt of Court, 3rd Edn.
199 and 203).
The order in the present case was a prohibitory order and if the appellants knew that the High Court had prohibited delivery of possession till May 23, 1958, it was undoubtedly the duty of the appellants to carry out that order.
We do not think that the appellants can take up the plea that as the order had not been officially communicated to them, they were at liberty to ignore it.
The appellants were officers whose duty it was to uphold the law and if they knew that a valid order had been made by the High Court staying delivery of possession, they disobeyed that order at their peril.
There may be circumstances where officials 139 entrusted with the duty of carrying out a legal order may have valid reasons to doubt the authenticity of the order conveyed to them by interested parties and in those circumstances it may be said that there was no willful disobedience of the order made.
We do not, however, think that the appellants in the present case had any real justification for doubting the authenticity of the order made by the High Court, even though the order had not been officially communicated to them.
The appellants knew that an interim order of stay had been made by the High Court on May 16, 1958; that order was in force till May 19, 1958.
Thereafter the appellants were informed not merely by interested parties but by an Advocate, who was an officer of the Court, that the High Court had extended the stay order upto May 23, 1958.
A formal application supported by an affidavit was made to that effect.
Despite the reason alleged by the appellants that there was a background of enmity between the parties, we do not think that the appellants have given any good reasons on which they were entitled to doubt the authenticity of the order communicated to them by Ganga Bishan, an Advocate acting on behalf of Didar Singh.
It is worthy of note that the appellants did not deliver possession in Didar Singh 's case.
They were content with delivering possession in the case of the respondent only.
Taking into considerations all these, circumstances we are satisfied that there was in this case in the eye of the law, a willful disobedience of the order of the High Court staying delivery of possession, even though the appellants might have wrongly but honestly believed that it was not safe to act on the information given to them by Ganga Bishan.
The learned Advocate for the appellants has referred us to a number of decisions, English and Indian, relating to mandatory orders, or 140 orders for the payment of money, or orders which require under the rules of the Court to be served in particular manner.
In re: Holt (an Infant)(1); Ex parte Lingley (2); In re: Tuck March vs Loosemore (3); Dwijendra Krishan Datta vs Surendra, Nath Nag Choudhury (4): and Gordon vs Gordon (5).
In those decisions it was held that it was necessary to have the order properly served before charging a person with disobedience of it.
We do not think that those decisions are in point, because we are dealing with a prohibitory order and in the matter of a prohibitory order it is well settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde.
The distinction between prohibitory orders and orders of an affirmative nature was adverted to in N. Baksi vs O. K. Ghosh (6) and a large number of decisions were referred to in support of the rule that in respect of a prohibitory order, service of the order was not essential for founding an action in contempt.
We do not think that any useful purpose will be served by examining those decisions over again.
We are content to adopt for the purposes of this case the rule as succinctly put by Oswald and quoted earlier in this judgment.
Lastly our attention has been, drawn to the statements made by the respondent in para.
22 of his petition to the effect that though appellant No. 2 made a report about delivery of possession in respect of the land of the respondent, no actual dispossession could be made because cotton crop was standing on the land and a large number of persons had gathered there.
The argument before us is that if, according to the respondent (1) (3) (5), (1946) 1 AU E.R. 246.
(2) (4) A.I.R. 1927 Calcutta 548.
(6) A.I.R. 1957 Patna 528, 141 himself, no actual dispossession took place then this is not a fit case in which action for contempt should be taken against the appellants.
It has been submitted on behalf of the appellants that contempt proceedings are of an extraordinary nature and the Court should be reluctant to exercise its extraordinary power if the action complained of is of a slight or trifling nature and does not cause any substantial loss or prejudice to the complainant.
It has been argued that if the respondent himself said that he had not been actually dispossessed, then there was no reason for proceeding against the appellants for contempt of court.
Secondly, it is pointed out that the appellants offered an apology in case the High Court held that they should have taken action on the information given to them by Ganga Bishan.
As to the second submission, it is enough to point out that in a matter relating to contempt of court, there cannotbe both justification and apology, (See M. Y.Shareef vs The Hon 'ble Judges of the High Courtof Nagpur (1).
As to the first submission wemay draw attention to the statements of appellant No. 2 in para.
21 of his affidavit in which he said that so far as the respondent 's land was concerned, possession was delivered to Budh Singh.
This statement of appellant No. 2 clearly shows that the two appellants took the very action which was prohibited by the High Court by its order dated May 19, 1958.
We are, there fore, unable to accept the submission that there was no foundation for taking action against the appellants for contempt of court.
This disposes of all the points urged on behalf of the appellants.
As to the punishment imposed, the learned Judge took into consideration that the appellants wrongly but honestly might have believed that they were not bound to hold their hands in the absence of an official communication of the order (1) ; 142 of the High Court.
That belief afforded no defence to the charge of contempt of court, but was a consideration relevant to the sentence.
In our opinion, there are no grounds for interference with the order of the High Court.
The appeal accordingly fails and is dismissed.
RAGHUBAR DAYAL, J.
I have bad the privilege of perusing the, Judgment of my learned brother section K. Das, J., but regret My inability to hold that the appellants committed contempt of Court.
I need not repeat the facts set out in the majority judgment.
No conviction for committing contempt of Court can be based on the finding of the High Court that the appellants delivered possession believing that they were not bound to hold their hands in the absence of the official communication of the High Court 's order.
The finding means that they delivered possession not in defiance of the High Court 's order, but because they honestly thought that in the absence of the official communication of the order, they could not act on the supposition that the original stay order, which was to be effective up to May 19, 1958, continued to be effective.
If in their honest opinion no stay order existed at the time, their conduct cannot be said to amount to willful disobedience of the High Court 's order extending the stay order up to May 23, 1958.
No question of willful disobedience can arise when the very existence of the order is not believed.
The question of obedience or disobedience arises only after the party knows of the order and if the party does not know the order, no such question can arise.
The allegations in the petition by the first respondents filed in the High Court, did not make out that the appellants delivered possession, the 143 delivery of which had been stayed upto May 23, 1958, by the High Court by its order dated May 19, 1958.
This is clear from the statements in paragraphs 21 and 22 of the petition.
They are : " 21.
However when actually he attempted to start the work of dispossession, he found that a large number of people were collected at the spot and apprehending that the police force already taken to the spot might not be sufficient to cope up with the situation if some trouble arose, he withdrew from the spot.
22.That although in the land possessed by the petitioner in Jag Malera, cotton crop was standing in some of the fields and no proceedings for dispossession of the petitioner could be taken by respondent No. 2 on account of the presence of a large number of persons at the spot, respondent No. 2, however, madesome report later on that the petitioner hadbeen actuary dispossessed of his lands and the same was given over to Budh Singh at the spot.
In the other cases, however, he made a report that be could not deliver possession on account of the presence of a mob at the spot and that the police force with him being too small, was not sure to cope up with the situation.
" These paragraphs can only mean that appellant No. 2 attempted to start the work of dispossession, but did not proceed further, and withdrew from the spot in view of an apprehension of breach of peace and that be made some report of a fictitious kind to the effect that the petitioner had been actually dispossessed of his land and possession had been given over to Budh Singh at the spot.
It Was emphasized that actual possession could not have be on delivered on account of the standing cotton crop.
It follows that even on the statements 144 of the first respondent in his petition for action against the appellants for contempt of Court, there was no assertion that they had disobeyed the stay order by delivering possession to Budh Singh.
In the absence of such an assertion, no action could have been taken or ought to have been taken against the appellants.
Contempt proceedings are criminal or quasi criminal proceedings.
It is essential that the accusation made against the opposite party by the petitioner for taking action against him should be precise and should ,clearly make out that the opposite party had, by some specific act, committed contempt of Court.
the conviction of the opposite party must rest on the facts alleged and proved by the petitioner.
A conviction may also rest on the sole admission of the alleged condemner if that establishes his committing contempt of Court, but, in that case, his admission should be taken as a whole and not that its incriminating part be taken out of the context and made the basis for conviction.
It is immaterial that appellant No. 2 stated in his reply that actual possession of the land in the unauthorised possession of the first respondent was delivered to Budh Singh and that at the time no cotton crop was standing and that the respondent was adopting a contradictory position.
The High Court did not give any finding on this question.
It simply said in its judgment, due to the misreading of the allegations in the petition. "In spite of this fact it is alleged that in the village the Naib Tehsildar formally dis possessed ' the present petitioner and handed over his land to one Budh Singh. " The respondent made no statement about the Naib Tehsildar formally dispossessing him and banding over the land to Budh Singh.
145 A clear cut finding on the disputed fact whether actual possession had been delivered or not is not to be given in summery proceedings for contempt of Court.
If actual possession had been delivered to Budh Singh, there must have been some good reason for the respondent not to admit it in his petition and that can only be that in any future dispute where the question of possession of the respondent or of the Budh Singh be in question, the respondent be not confronted with his own admission in his petition and affidavit accompanying it.
It may be mentioned that identical statements where made in paragaraphs 21 and 22 of the affidavit.
There might be some other reason for the respondent not to admit the delivery of possession, but it is clear that the respondent did not come to Court with clean hands and, in the circumstances, proceedings for contempt of Court on his application was wrong exercise of discretion.
However, the main fact remains that no allegation was made in the petition that the respondents had delivered possession.
The appellants were not served, by the time the delivery of possession may be supposed to have taken place, with the order of the High Court extending the stay, order up to May 23, 1958.
The telegram sent by the counsel of Gurbachan Singh from Chandigarh, reached the first appellant, the Sub Divisional Officer, at 1 30 p.m., on May 10, 1958, and any order of his on it did not reach appellant No. 2 till 6 p.m., by which time, according to him, possession had been delivered.
The formal stay order from the High Court reached much later.
It may not be necessary to serve prohibitive order on the party against whom it is granted, but that party must have notice of the order before it can be expected to obey it can be committed for contempt of Court for disobeying it.
This is what 146 Oswald states at page 203 of his book on 'Contempt of Court ', III Edition.
He says: "In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been server upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise,. " It would appear from the later part of the observation that it was sufficient that the party concerned gets notice of the prohibitive order by any means, specially by telegram or newspaper report.
is however not what was held in the cases referred to by Oswald in support of his statement.
Notice to the party concerned, of the prohibitive order, in those cases was communicated by the Court through its regular procedure or by a Solicitor of the Court.
In In re Bryant (1) the parties concerned wet,(, informed by the solicitor of the judgment debtor that the debtor had filed a liquidation petition in the London Bankruptcy Court and that application would be made at the next sitting of the Court to restrain further proceedings under the execution.
The auctioneer concerned received a telegram from Bryant 's solicitors referring to the parties to the case and stating that injunction staying sale and further proceedings Lad been granted that morning and that the order would be served as soon as possible.
The auctioneer, how ever, proceeded with the sale.
It was in these circumstances that the parties concerned were held to have disobeyed the order of the Court and to have committed its contempt.
The solicitor was an officer of the Court.
This case is no authority for the proposition that information conveyed to the party concerned (1) I.R. 147 by telegram from a person who is not an officer of the Court would amount to the requisite notice of the prohibitive order by the party concerned.
In Ex parte Langley, Ex parte Smith, In re Bishop (1) the facts were as follows.
Bishop filed a liquidation petition in the London Bankruptcy Court on August 6, 1879.
The same day the Court passed an order restraining until the 8th of September, further proceedings in several actions which had been commenced against the debtor and, inter alia restraining the sheriff of Kent, his officers and servants, from taking any further proceedings in an action which had been brought against the debtor by Messrs. Wade and Thurston.
The sheriff had fixed the sale of the attached furniture of the debtor on the 6th of August, having adjourned it from the 5th in order to afford an opportunity to the debtor to pay the debt.
Smith was he sheriff 's officer who was in charge of the sale.
His assistant, Emmerson and Langley, an auctioneer, were to carry out the sale.
Emmerson had directions to start the sale at 11 'clock and not a moment later.
Langley, however, postponed the same to 12 o 'clock, on his own responsibility, due to paucity of persons present.
Langley received a telegram from one Matthews, the manager of the hotel in which the debtor was carrying on business as a licensed victualer, saying: "Smith gone to Canterbury.
You had better stop Bale on your own account, as I know it is all right.
" The auctioneer was also informed by the debtor 's son and another person between 11 and 12 o 'clock that the debtor would come down by the mid day train from London with the money to pay the execution debt.
The sale was again put off to 1 o 'clock when it did start.
After a few lots had been sold, Emmerson received a telegram purporting to be (1) L.R. (1979) 13.Ch.
D. 110 148 from Learyod & Co., Solicitors, London, to the sheriff 's officer in possession stating: "Take notice, the London Court of Bankruptoy has made an order restraining you from selling or taking any further proceedings in the action against Bishop".
The telegram was shown to Lanoley who thought it to be a ruse on the part of the debtor but was prepared to stop the sale temporarily till instructions from Smith.
Emmerson sent a telegram to Smith saying: "Langley just received telegram to stop sale.
Shall we proceed? People are waiting your reply.
" Smith 's reply was: "If telegram to Langley does not state Defendant filed petition or money paid, sell at once" ' The sale thereafter proceeded.
Langley and Smith were committed for contempt by Bacon C J.
But on appeal they were acquitted.
James, L. J., said at page 116: "With regard to the sheriff 's officer, he does not seem to have been a party to the alleged contempt at all, because I do not think the mere fact of the telegram is sufficient to bring home to him any Participation in the supposed contempt." He further said at page 117, in considering the case of the auctioneer.
"It appears.
to me that he might have taken some steps (though I do not know what steps I should have taken if I bad been in his position) to ascertain whether an order had really been made by the Court.
Perhaps some auctioneers would have done so.
But he has taken upon himself to swear positively (and he 149 has not been cross examined) that which Lord Eldon, in Kimpton vs Eve ; , field to be sufficient.
He swears that he did not believe that there had been any proceedings whatever in the Bankruptcy Court it, or that any such order had been made.
A person in I such a position, and a sheriff 's officer is placed in great difficulty upon receiving a telegram of this kind, knowing nothing at all of the person who may have gone to the post office and sent it, a telegram which might just as well have been sent by the debtor or by Matthews, or any one else on behalf of the debtor, in the name of Messrs. Learoyd.
I am very far from saying that notice of an order cannot be given by telegram.
But it is very difficult to commit for contempt where a man says that which the auctioneer does here, under circumstances which certainly give color to his assertion, and there is some amount of probability that he may, having regard to what had already taken place that ay, not have believed that any order had been made by the Court, and have had no suspicion whatever that he was disobeying any order of the Court when he continued the sale.
" Thesinger, L. J., said at p. 119: I in no way dissent from the proposition laid down by him(Bacon, C.J.) in this case and also in In re Bryant (supra), that, under certain circumstances, a telegram may constitute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court. .But the question ineach case, and depending upon the particular circumstances of the case must be or was there or was there not such a notice given to the person who is charged with 150 contempt of Court that you can infer from the facts that he had notice in fact of the order which had been made? And, in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond reasonable doubt." He further stated at page 121: "But, on the other hand, he has positively sworn that, coupling what had happened before with the telegram, he bona fide believed that he was not bound to act upon the telegram which he had received, and that there had been no proceedings which would justify him in stopping the sale.
He has not been cross examined, and nothing has been proved to show that his affidavit is not true.
Under such circumstances the observations of Lord Eldon, in Kimpton vs Eve (supra) seem to me pertinent and material, and I may add that in a case like the present the benefit of any doubt ought to be given to the person charged with contempt.
" The further remarks of James L. J., at page 122 point out the proper way of communicating a notice about injunction orders to the parties concerned by the solicitor of the party obtaining the order from the Court.
He says: "I wish to add this, that when parties who .obtain an injunction wish to communicate it by telegram, there is a very obvious mode by which they can prevent difficulties like this.
If the solicitor, instead of telegraphing to the sheriff 's officer, were to telegraph to some solicitor as his agent at the place, and tell him to go and give notice of the order, then the person affected would have the responsibility 151 of an officer of the Court for what he was doing.
" This case well illustrates the difficulties of the parties against whom a prohibitive order is made when they are informed by a telegram about these orders having been made by the Court oven when the telegram was from a solicitor of the Court.
The difficulties would be still greater if the telegram was one from a; person who is not a solicitor and therefore an officer of the Court.
In The Seraglio(1) notice of the issue of warrant which was subsequently disobeyed was sent by telegram by the marshal to the customhouse officer at Plymouth who went on board the seraglio to inform those in charge of the ship.
The master of the Seraglio, however by the owner 's order, left Plymouth with the custom house officer on board.
The warrant was served on him subsequently.
Sir James Hannon said at page 121.
"It must be understood that a litigant cannot be disregard a notice sent to him by telegraph by an officer of the Court.
" In none of the cases referred to, a party 1s said to have received information of the Court 's injunction order through any source having no connection with the court Passing the order.
I would not like an extension if this, practice of holding a person guilty of contempt even though he is not served with the order, to cases in which his alleged knowledge of the order is dependent on the veracity of the witnesses examined by a party praying for action against the other.
Conviction for contempt of Court must depend on unimpeachable evidence of the knowledge of the alleged contemner about the order said to have been disobeyed.
In support of the note that it could be proved that the party proceeded against had notice of the (1) 152 order by newspaper report or otherwise, Oswald has referred to Daniell 's Chancery Practice, Vol '.
1, Edition 7, page 1368.
That edition is not available, but in the 8th edition of that book, Vol.
II, at page 1413, is noted the practice in urgent cases thus : "In such (urgent) cases, the practice is to serve the party enjoined personally with notice in writing that the injunction has been granted, and that the order will be drawn up and served as soon as it can be passed through the offices ; or else to procure a transcript of the minutes of the order signed by the Registrar, and to serve the same personally by delivering a copy of it, showing at the same time the original transcript so signed ; and either the notice or the copy of the minutes will be sufficient to render the defendant or other person enjoined guilty of a contempt, if he acts in opposition to the injunction.
" I do not find any reference that knowledge of the party proceeded against through a newspaper report or otherwise, and not through Court, has been considered sufficient for contempt proceedings.
Again, at page 1419, have been mentioned certain other means through which the party proceeded against could have been informed of the injunction order.
They are practically those summarized in Oswald 's note.
In the appeal before us, I am not satisfied that the appellants had been informed that the High Court had passed an order staying the delivery of possession in proceedings on the writ petition filed by respondent Gurbachan Singh.
The communication made to the appellants about the stay order of the High Court is said to be through the applications and affidavit presented by Didar Singh to the appellants on May 20, 1958, and through a 153 chit said to have come from the advocate of the High Court regarding the injunction order.
Didar Singh had put in another writ petition against his threatened dispossession by appellant No. 1 through appellant No. 2.
There is said to have been ' a third writ petition by another person praying for similar relief.
All these petitions were separately dealt with by the High Court.
Separate stay orders were passed on them.
These five affidavits, in view of their contents, are not sufficient to prove that the appellants had been informed through these documents that the High Court had extended the stay orders in all the three cases.
viz., the cases on the writ applications of Gurbachan Singh, Didar Singh and another third person.
No statement is made in any of the affidavits that the applications and affidavits presented to the appellants mentioned that the High Court had stayed the delivery of possession in all the three cases.
It is not stated by Didar Singh and Mastan Singh what was written on the chit sent by the advocate of the High Court and whether that chit related to the order in the case of Didar Singh alone or referred to the orders in all the cases.
As Didar Singh claimed a receipt for the presentation of the application and affidavit to appellant No. 2, the latter, after consulting the prosecuting inspector, went to appellant No. 1 for consultation and was advised to, return the application to Didar Singh if he insisted on getting a receipt.
The application and the affidavit were therefore then returned to one Ganga Bishan.
The chit alleged to have been sent by the High Court advocate has not been produced.
The application presented to appellant No. 2 in the village and returned by him in the Sub Divisional Officer 's Court, though presumably in possession of Didar Singh, has not been filed.
They would have indicated what their contents were.
That 154 would have been the best evidence of what was conveyed to appellants Nos. 1 and 2.
Ganga Bishan 's statement.
that he had drafted the application addressed to appellant No. 2 to the effect that the stay order issued by the High Court in Jag Malera Namdhari cases had been extended, is not the best 'evidence of what the application (a fair copy presumably), actually contained, an application which is in the possession of Didar Singh.
Of course, the application and affidavit presented to the Sub Divisional Officer, are in the possession of the State.
No attempt was made by the respondent to summon them or to file certified copies of those documents in these proceedings in the absence of the best evidence, the documents, I am not prepared to hold that the application and affidavit filed by Didar Singh must have referred to all the cases.
Normally, he had no business to refer to the stay orders in the other cases and to make prayer for the stay of delivery of possession in all the cases.
He had to restrict his application and affidavit to his own case.
Further, whatever was stated in the application and the affidavit,, in the nature of things, was not on the basis of personal knowledge of Didar Singh Didar Singh himself did not even have the telephonic communication with his counsel at Chandigarh.
The telephonic communication was between Teja Singh and that counsel.
Appellant No. 2 states and I see no reason to doubt that statement that in the background of the facts about the possession over the land he did not consider it advisable and safe to accept the statement of facts contained in the application or affidavit on its face value.
Lastly, the presence of Ganga Bishan, Advocate, on the occasions of the presenting of the application and affidavit to appellants Nos. 1 and 2, is 155 stated in all the affidavits.
But it is only in paragraph 5 of Didar Singh 's affidavit that it is stated that Babu Ganga Bishan, Advocate, presented the application and the affidavit to the Sub Divisional Officer.
Ganga Bishan himself does not state so.
It is not stated anywhere that Ganga Bishan had been engaged as counsel by Didar Singh.
It would appear a bit unusual that 'in the presence of a duly appointed advocate, applications and affidavits be presented by Didar Singh personally and not through his counsel.
On the basis of the statements and the affidavits, I am not prepared to hold that Galiga Bishan was the duly appointed counsel for Didar Singh.
He may be accompanying Didar .Singh like other persons on account of his interest in the matter.
Further, any request by him to the Sub Divisional Officer for passing the necessary orders on the application of Didar Singh, as stated by him in paragraph 3 of his affidavit, cannot lead to the conclusion that be professionally represented Didar Singh, as similar requests were made, according to his own affidavit, by the other persons also, who had accompanied Didar Singh to the Sub Divisional Officer 's Court.
The Sub Divisional Officer, therefore, could not have treated his request to be a statement of fact about the High Court 's extending the stay order up to May 23, 1958.
Ganga Bishan does not state that he told the Court that the High Court had extended the duration of the stay order or that he requested the Sub Divisional Officer, who is also the Sub Divisional Magistrate, to stay the delivery of possession in view of the application filed by Didar Singh.
He simply states: "Several requests were made to the Sub Divisional Magistrate by us that necessary orders on the application presented to 156 him be made and the Managing Officer be called back." Even if Ganga Bishan bad stated that the High Court bad extended the order, his statement too, had no better value when he could not speak about that order on the basis of personal knowledge or on the basis of any communication to him by the Advocate of the High Court.
He has not stated in his affidavit that he was present when the order was passed or that he had received any communication from the High Court Advocate.
I am therefore of opinion that his merely accompanying Didar Singh and others did not invest any greater weight to the correctness of the statements made in the application and the affidavit.
The public officers are not to blame if they do not take at face value what is contained in deliberately prepared applications and affidavits.
I have already mentioned of the way in which the crucial basic fact to be mentioned in the petition for contempt proceedings against the appellants had not been mentioned and statements were made in a way which at first sight could lead to the impression that the delivery of possession had been made in defiance of the order of the High Court.
I am therefore of opinion that it is not established the respondents did not rely on the statements in the application and the affidavit mala fide because they were bent upon delivering possession in defiance of the orders of the High Court.
I find in this case that on May 16, orders of the High Court were obtained for serving the stay order upon the appellants through the petitioner respondent, but no such order was obtained for serving the order dated May 19.
In view of the urgency of the matter, the respondent and others who bad obtained extension of the stay orders on 157 the 19th could have and should have obtained similar orders of the High Court for serving them.
If that precaution had been taken %gain on May 19, 1958, probably what happened subsequently on the spot and thereafter, would not have taken place.
I am therefore of opinion that the appellants committed no contempt of Court, and would allow their appeal.
By COURT : In accordance with the opinion of the majority, the appeal fails and is dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellants, one a Sub Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons.
The first respondent forcibly occupied the land allotted to B.
On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958.
On May 16, 1958.
the first respondent and others threatened with dispossession filed petitions in the High Court under article 226 of the constitution and obtained interim stay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Bench for admission.
On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958.
The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958.
It was alleged that on May 20, 1938, the appellants, although informed of the second stay order by certain interested persons and the Advocate for one of the parties, formally dispossessed the respondent in disobedience of the Court 's order and handed over possession of the land to B. On the complaint of the respondent the High Court field that the .appellants were guilty of contempt of Court and, instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communication.
The appellants appealed by special leave.
Held, (per Das and Subba Rao, JJ.)that in a case of contempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted.
It would be sufficient if it was proved that the party had notice of it aliunde.
N.Baksi vs O. K. (Thosh, A. T. R. (19.)7) Patn.
528, referred to.
128 There may be circumstances where officials entrusted with the carrying out of a legal order might have valid reasons to doubt The authenticity of the order conveyed to them by interested parties.
But in the present case there could hardly be any such reasons.
The appellants had really no justification for doubting the authenticity of an order communicated to them by an Advocate.
Held, further.
that in a matter relating to contempt of court, there cannot be both justification and apology.
shareef vs The Hon 'ble Judges of the High Court of Nagpur; , , referred to.
Although the appellants might have honestly believed that they were not bound to bold their band in absence of an official communication, that would be no defence to the charge of contempt of court, but only a relevant consideration in awarding the sentence.
Per Daval, J. Contempt proceedings are criminal or quasi criminal in nature and it is essential that before any action can be taken the accusation must be specified in character.
In the instant case, the respondent did not state that he was formally dispossessed.
This would 'be for some reason if actual posssssion had been delivered.
He could not be said to have come to court with clean hands.
Further, the finding of the High Court that the appellants delivered possession honestly believing that they were not bound not to do so in the absence or the official communication meant that there was no defiance of the High Court 's order.
There could be no willful disobedience since there was no belief in the existence of the order.
It may not be necessary that the party against whom a prohibitory order was made must be served with the order, but it should have notice of the order before it could be expected to obey.
Such notice must be from sources connected with the court passing the order.
The alleged knowledge of the party cannot be made, to depend on the veracity of the witnesses examined by the party praying for action.
In re Bryant L.R (1987 6) In Ex Parte Langly, Exparte Smith.
In re Bishop L. R. and The Seraglio.
L. R. , discussed.


judgement:
l Appeals Nos.
67 to 75 of 1959.
Appeals by special leave from the judgment and order dated May 7, 1954 of the U.P. Board of Revenue, in Second Appeals Nos.
53 to 61 of 1945 46.
section P. sinha, J. P. Goyal and Sadhu Singh, for the appellants.
Bishan Narain and E. L. Mehta, for the respondents.
February 15.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
These nine.
appeals, by special leave, are against the orders of the Board of Revenue, Uttar Pradesh, dismissing nine 219 second appeals filed by the appellants in circumstances hereinafter, mentioned, on the ground that the orders of the First Appellate Court in three other connected first appeals had become final and operated as res judicata.
Khub Chand had three sons Karan Singh, Hoshiar Singh and Mukhtiar Singh.
Each of these brothers instituted four suits.
Hoshiar Singh instituted suit No. 48 of 1944 under section 175 of the U.P. Tenancy Act, 1939 (U.P. XVII of 1939), against one Bhartu, suit No.49 against Har Gyan, Mukhtiar Singh and Data Ram, sons of Sis Ram, brother of Bhartu, suit No.50 against Har Gyan and Mukhtiar Singh, sons of Sis Ram, and suit No. 51 against one Banwari.
Karam Singh similarly instituted suits Nos. 63, 61, 60 and 62 against similar defendents respectively.
Mukhtiar Singh 's suits against those defendants, respectively.
were Nos.67, 65, 64 and 66.
Each of these suits was for different sets of plots.
The allegations of the plaintiffs in each suit and the contentions of the defendent in each suit were similar and therefore similar issues were framed in each suit and all the suits were tried together and were disposed of by one common judgment.
Twelve decrees were, however, prepared.
Against the twelve decrees the defendants judgment debtors in each decree filed twelve first appeals in the Court of the Additional Commissioner, Meerut Division.
The Additional Commissioner dismissed three appeals for default, These were the appeals which were filed against Hoshiar Singh, Karam Singh and Mukhtiar Singh by Banwari.
The Additional Commissioner heard the remainmg nine appeals on merits and dismissed them.
The defendants judgment debtors then filed nine second appeals before the Board of Revenue.
They were dismissed as barred by res judicata on May 7, 1954.
The applications for special leave were filed in this Court in November 1954.
Special leave was 220 granted on April 18, 1955.
By the time the appeals came up for hearing, some other events took place and as a result of them the respondents filed an application for adducing additional evidence under O.XLV, rr. 1 to 5, Supreme Court Rules in November 1959, and also included in their statement of case a narration of those events and their effect.
It appeals that the villages in which the lands in suit were situate, come under Consolidation Operations under the U.P. Consolidation of Holding.s Act, 1953(U. P. V of 1954), hereinafter called the Act, sometime in July 1954, when a declaration was issued by the State Government under s.4 of the Act to the effect that it had been decided to make a Scheme of consolidation for that area.
In December 1954, a statement of plots and tenure holders was prepared and in May 1955 a statement of proposals under s.19 was prepared; in August 1955 final statements in chak form 25 were issued.
On October 17, 1955, the State Government published a notification under s.52 of the Act.
section 52 of the Act then read: "As soon as may be after the tenure holders have entered into possession of their new holding in pursuance of ;Section 26, the State Government shall issue a notification in the Official Gazette that the Consolidation opera tions have been closed in the village and the village shall then cease to be under consolidation operation.
" It is thus seen that this village remained under Consolidation operations from some time in July 1954 to October 17, 1955.
The appellants did not file any objections before the Consolidation authorities under s.12 of the Act disputing the correctness or the nature of the entries in the statement prepared under s.11 or under s.20 against the statement of proposals prepared under s.19 221 Section 21 provides for the fixing of a date for the enforcement or the consolidation scheme.
Section 25 provides for the issuing of the allotment order showing the new fields allotted to each tenure holder in accordance with the said scheme.
Section 26 provides for the tenure holders to enter into possession of the fields allotted to them on or after a certain date.
Section 27 provides for the preparation of new village maps, khasra and the record of rights, in accordance with the Provisions of the U. P. Land Revenue Act, 1901.
Its sub s (2) provides that all entries in the record of rights prepared under sub s.(1) small be final and conclusive, Section 30 provides that the rights, title, interest and liabilities of the tenure holder in his original holding shall be extinguished and he will have the same rights, title, interest and liabilities subject to modification, if any, in the plots allotted to him under s.25 with effect from the date on which he enters into possession of the plots allotted to him.
It was contended for the respondents that in view of these consolidations operation and s.5 of the Act, as amended up to date, these appeals have become infructuous as this Court cannot pass any orders on the merits of the controversy.
The Act has been amended several times since it was origi nally enacted.
The various amendina Acts are: Act XXVI of 1954 which came into force on December 13, 1954; Act XIII of 1955 which me into force on June 10, 1955; Act XX of 1955 whcih came into force on October 21, 1955; Act XXIV of 1956 which came into force on July 3, 1956; Act XVI of 1957 which came into force on May 25, 1957 and Act XXXVIII of 1958 which came into force on November 19, 1958.
During the period the village in suit was under Consolidation Operations, the Act applicable 222 to the proceedings was the Original Act as amended by Acts XXVI of 1954 and XIII of 1955.
The other Acts came into force subsequent to the issue of the notification under s.52 of the Act.
It is necessary to bear this in mind in view of the contentions raised.
Section 5 of Act V of 1954 was as follows (1) Upon the publication of the declaration under section 4, the district or the local area; as the case may be, shall be deemed to be under consolidation operations from the date of such publication until this publication of the Notification under section 52 in the official Gazette to the effect that the consolidation operations have been closed.
(2) Where a district or any other local area is under consolidation operations, the duty of preparing and maintaining the maps the khasra and the annual register under Chapter ITI of the U.P. Land Revenue Act, 1901, shall stand transferred to the Settlement Officer (Consolidation), and thereupon all the powers conferred on the Collector, Assistant Collecter and the Tahsildar under the said Chapter shall, so long as that district or the area remains under consolidation operations be exercised respectively by the Settlement Officer (Consolidation), Consolidation Officer and the Assistant Consolidation Officer.
" Act XXVI of 1954 deleted the last portion of sub s.(2) commencing from the words "and there.
No change in this section was made by the Amending Act XIII of 1955.
There was therefore nothing in this section which in any way would have affected the hearing of these appeals, during or after the consolidation operations.
223 Section 12 of Act V of 1954 provided for the publication of the statement of plots and tenure holders prepared under section II and for filing objections disputing the correctness or nature of entries in it.
Its subsections (4), (5) and (6) were : " (4) Where the objection filed under sub section (1) involves a question of title and such question has not already been determined by a competent court, the Consolidation Officer shall refer the question for determination to the Arbitrator.
(5) All suits or proceedings in the court of first instance or appeal in which a question of title in relation to same land has been raised, shall be stayed.
(6) The decision of the Arbitrator under sub section (4) shall be final.
" There was nothing in these sub sections which provided as to how the suits or proceedings stayed been under sub section (5) would be decided or how matters in connection of which no objection bad raised under s.12 would be dealt with.
These provisions too did not affect the pending Appeals as no objection had been filed under s.12.
Act XXVI of 1954 amended sub s.(4) to the effect that the objection coming under sub s.(4) would be referred to the Civil Judge, who will then refer it to the Arbitrator, and substituted another sub section in the place of original sub s.(5).
The substituted sub s.(5) read : "(5) Upon the making of reference under sub section (4) all suits or proceedings in the Court of first instance, appeal, reference or revision in which the question of title in relation to the same land has been raised, shall be stayed." This amendment in sub s.(5) stayed the suits and 224 proceedings not only in the Courts of the first instance and appeal but also in the Courts of reference and revision, but did not affect these appeals.
Sub s.(2) of s.27 as originally enacted, was not amended up to the 17th October, 1955.
Its sub s.(2) made the entries in the record of rights Prepared under sub s.(1) final and conclusive. 'We are not concerned with its effect in these appeals.
Section 49 of the Act bars the jurisdiction of Civil Courts.
This section, before its amendment by Act XTTT of 1955, which came into force on June 10, 1955, did not bar the institution of a suit or proceedings in the, revenue court.
It did so after the amendment.
;,) appeals had been filed long before the amendment.
We may state that no objection was raised on behalf of the respondent to the effect that these appeals could not have been instituted, but we have discussed that matter, in view of the fact that the appeals were filed after the State Government had made a declaration under s.4 of the Act.
We have not been referred to any provision in these, Acts, viz. Act V of 1954, Act xxvr of 1954 and Act XIII of 1955 which would lead to the conclusion that these appeals have become infructuous.
Act XX of 1955 made an amendment in s.27 of the Act.
The amendment however does not affect the question before us.
Act XXIV of 1956 which came into force on July 3, 1956, substituted a new section 5 in the place of the old.
The substituted section 5 read : "5.
When the declaration under section 4 has been published in the Gazette, the consequences as hereinafter set forth shall, 225 from the date specified thereunder till the publication of the notification under section 52 in the Official Gazette to the effect that the consolidation operations have been closed, ensue in the area to which the declaration relates, namely ; (a) the district or the local area, as the case may be, shall be deemed to be under consolidation operations from the specified date, and the duty of preparing and maintaining the khasra and the annual Register under Chapter III of the U.P. Land Revenue Act, 1901, shall stand transferred to the Settlement Officer (Consolidation), and (b) all proceedings for the correction of any such records pending before any court or authority shall be stayed but without pre judice to the right of the persons affected to agitate the question before the Assistant Consolidation Officer under sub section (3) of Section 8, or in proceedings commenced under and in accordance with section 10" Clearly, cl.
(b) does not apply to these appeals as they have not arisen out of proceedings for the correction of village records.
Act XXIV of 1956 made certain amendments in section 11 with which we are not concerned.
We are not also concerned with the amendments this Act made in subs.
(1) of section 12.
It substituted a new sub section (5) and added sub section
These new subsections (5) and (7)are: "(5) Upon the publication of the statement under section 11, all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in respect of any plot mentioned in the statement with reference to clause (c) of sub section (1) of section II has been raised, shall be 226 stayed to the extent it relates to such plot and shall thereafter be disposed of in the manner prescribed.
(7) A question of title in respect of any plot mentioned in the statement in clause (c) Of sub section 1 of section 11, which might and ought to have been raised under subsection (1) but had not been raised, shall not be raised in any objection filed under subsection (2) of section 20, or under sub section (1) of section 34.
" It is for the first time that such suits and proceedings in the various Courts had to be stayed in which a question of title in respect of any plot mentioned in the statement with reference to el.
(c) of sub section
(1) of section 11 had been raised and that these stayed suits or proceedings were to be decided subsequently in the manner prescribed, i. e., in the manner laid down under rules framed under the Act.
These provisions of sub section
(5) do not affect the appeals as they were prospective in operation and could apply to those cases only in which at atements under section 11 were filed after the amendment had been made.
The amendments made by the other sections of this Act and Act XVI of 1957, do not affect the hearing of the appeals in any way.
Thereafter case Act XXXVIII of 1958.
This Act again substituted a new section 5, and the relevant portion of the substituted section reads: 5.Upon the publication of the notification under section 4 in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under section 52 or sub section (1) of section 6, as.
the case may 227 be, ensue in the area to which .
the declaration relates; namely x x x x x (b) (1) all proceedings for correction of the records and all suits for declaration of rights and interest over land , or for posses sion of land or for partition, pending before any authority or court, whether of first ins tance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the right or interests in dispute in the said pro ceedings or suits before the consolidation au thorities under and in accordance with the provisions of this Act and the Rules made thereunder: (ii) the findings of consolidation autho rities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned.
proceed with the proceeding or suit, as the case may be; These provisions operate prospectively.
The consequences mentioned in section 5 ensue upon the publication of the notification under section 4 in the Gazette and continue up to the publication of the notification under section 52.
They do not continue thereafter and could not operate on these cases in which the notification under section 52 was issued on the 17th October 1955.
They do not therefore bar the hearing of these appeals.
These a peals have not.
therefore become infructuous.
Sections 7, 8, 9, 10, 11, 11 A, 11 B, 12, 12 A, 12 B, 12 C and 12 D have been substituted by new section which apply to proceedings taken in consolidation operations subsequent to the coming into force of 'the Amending Act XXXVIII of 1858.
Sub section
(1) of 228 is.
12 makes it clear that the matters mentioned in that sub section cannot be raised subsequent to the date of notification under section 52.
There has been no material change made in as. 27 and 30, but section 49 now reads: "49.
Notwithstanding anything contained in any other law, for the time being in force the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
" This now provides that the adjudication of ' rights of tenure holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act.
This leads practically to the same result to which cl.
(ii) of sub section
(b) of section 5 leads to.
The provisions of this section are not expressly limited to the period between the declaration under section 4 and the notification under section 52, but can be so construed as they relate back to section 5 (b) (ii) of the Act as the declara tion and adjudication of rights have to be done in accordance with the provisions of the Act.
Further the amended provision would apply to the proceedings regarding rights in land in the area for which a declaration under section 4 has been issued after the amendment.
We are therefore of opinion that these appeals have not become infructuous.
229 On the merits, we are of opinion that the Board of Revenue erred in holding that the appeals before it were barred by res judicata.
It is essential for any previous Adjudication of a point to bar its consideration second time that, the previous adjudication must have been between the same parties and that it be with respect to the same matter.
The three suits in which judgments became final were against one Banwari and ', not against any of the present appellants.
The matter in issue in those three suits were also different 'from that in the suits which have given rise to these appeals.
Each of the twelve suits related to different plots.
A common judgment on account of similar questions being raised for decision in the different suits, does not always make that judgment amount to one judgment in those suits.
Such a judgment will ordinarily be deemed to be really so many judgments as the suits disposed of by it.
This Court expressed a similar view in Badri Narayan Singh vs Kamdeo Prasad Singh(1).
We therefore allow the appeals, set aside the order of the Court below and remand the appeals to it for further hearing and decision according to law. ' We may make it clear that it can take into consideration the effect of the Consolidation Act and proceedings thereunder, after giving an opportunity to the parties to submit what, they like in regard to them costs to abide the result.
Appeals.

summary:
K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under section 175 U. P. Tenancy Act, 1939.
Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them.
Twelve decrees were prepared and the defendants preferred twelve appeals to the Additional Commissioner.
Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits.
Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954.
In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1955, special leave was granted.
In July 1954, the villages in Which the lands in suit were situate came under consolidation operations under the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification 218 under section 52 of the Act on October 17, 1953.
The appellants did not file any objections before the consolidation authorities.
The respondent contended that in view of the consolidation operations the appeals before the Supreme Court had become infructuous.
Held, that the appeals had not become infructuous.
There was nothing in the U. P. Consolidation of Holdings Act, 1953, as it stood during the period the village in suit was under consolidation operations which could have in any way affected these appeals, during or after the consolidation operations.
The subsequent Amending Acts did not affect the appeals as they were prospective in operation and applied only to cases where the consolidation operations were started after the Amending Acts had come into force.
Held, further that the appeals before the Board of Revenue were not barred by resjudicata.
It was essential for the bar of res judicata that the previous and judication must have been between the same parties.
The three suits in which judgments had become final were against one B and not against any of the appellants .
The matter in issue in those three suits was different from that in the other nine suits as each of the suits related to different plots.
The common judgment was really twelve judgments in the twelve suits.
Badri Narayan Singh vs Kamdeo Prasad Singh, (1962) 3. section C. R. 759 referred to.