-1- IN THE HIGH COURT OF BOMBAY AT GOA CONTEMPT PETITION NO. 8 OF 2001 Antonio Sequeira Coutinho Pereira, residing at Mayem, Bicholim, Goa. ...... Petitioner V e r s u s 1. Shri Prakash Fadte, Minister for Forests & Town & Country Planning, Government of Goa, Secretariat, Panaji, Goa. 2. Shri Manohar Parrikar, Chief Minister of Goa, Secretariat, Panaji, Goa. 3. State of Goa Through its Chief Secretary, Secretariat, Panaji, Goa. Mr. S. K. Kakodkar, Senior Advocate with Mr. V. R. Tamba and Mr. Rama Rivankar, Advocates for the Petitioner. Mr. V. P. Thali, Advocate for the respondent no.2. Ms. R. Chodankar, Additional Government Advocate for Respondent no.3. None present for Respondent no.1. CORAM: S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. DATE : 19 th September, 2008 . -2- JUDGMENT (Per S. C. DHARMADHIKARI, J.) This Contempt Petition is by the original Petitioner in Writ Petition no. 393/00. Although, the Order passed by this Court directs that the Writ Petition and the Contempt Petition be heard together, both sides agreed that the hearing of the Writ Petition be deferred and the Contempt Petition be taken up for disposal. We have proceeded to hear the parties only on the issue of contempt as urged in the Contempt Petition. By consent, the Writ Petition is posted for hearing and final disposal after two weeks. 2. In the Contempt Petition as well, both sides agreed before us that the issue of maintainability raised by respondent no.2 be decided and an Order be made on the said preliminary objection raised by respondent no.2. In the event, the Court holds that the Contempt Petition is maintainable, then the parties would address the Court on the issue of contempt. 3. We have proceeded on the above agreed basis. 4. The Contempt Petition sets out that the Petitioner had filed Writ Petition no. 393/00, which was directed against the Notification dated 10.11.00 of the Government of Goa published in Official Gazette Series II No. 32 Extraordinary no. 2 of the said date. -3- 5. Prior thereto, on 10.05.00, the Government of Goa by a notification, set up a Commission of inquiry for the purpose of making inquiry into the property of the late Count of Mayem. The Commission of inquiry was to be presided over by a retired Judge of this Court. The time limits were set up for submission of report and we are not concerned with the extensions granted to the said Commission. 6. It is alleged in the Contempt Petition that this Commission was set up by the Government which was led by one Mr. Sardinha. It was a Government which included rebel Congress M.L.A.s and the Bharatiya Janata Party. It was a coalition Government. The Commission was appointed as the matter was of public importance and the allegations were that Custodians of evacuee properties connived with some industrialists, bureaucrats, encroachers, politicians, etc. in order to plunder the estate of late Count of Mayem. The petition alleges that several attempts were made to thwart the proceedings before the Commission. The Commission was functioning and about 55 witnesses including the Contempt Petitioner were examined. Some more witnesses were being summoned and were to attend the proceedings on 13.11.00. -4- 7. Prior thereto, on 24.10.00, second Respondent, Manohar Parrikar was sworn in as Chief Minister of Goa and he headed a B.J.P. Government. The first Respondent to the Contempt Petition is a MLA of the B.J.P. elected from Mayem Constituency. It is alleged that in order to end the proceedings before the Commission and ultimately preventing it from inquiring into the allegations that the impugned notification dated 10.11.00 came to be issued. The Commission was wound up and that is how the Writ Petition had to be filed. 8. We are not concerned with the allegations in the Writ Petition inasmuch as all that the petitioner alleges in this petition is that since the filing of the petition, he has been subjected to various threats of personal and bodily harm so also dire consequences. The allegation is that the petitioner was not permitted to prosecute the petition in the light of the threats. The threats were given by the supporters of respondent nos. 1 and 2 and at their instigation. In Para 8 and 9 of this Contempt Petition, these allegations are made. It is further alleged that since the petitioner did not succumb to the threats, respondent nos. 1 and 2 issued him a notice for breach of privilege and contempt of the Goa Legislative Assembly for certain statements made by the petitioner in the Writ Petition. The petitioner has received notice from the Under Secretary, Goa Legislature in that behalf. -5- 9. The petitioner clarifies that at no stage and at no time he made any statement amounting to breach of privilege of the Goa Legislative Assembly. The Notices are nothing but threats to the petitioner by respondent nos. 1 and 2 and they are exerting pressure so that he withdraws the Writ Petition and does not proceed with it. 10. In Paragraph no. 11, 12, 13 and 14 of the Petition, this is what is alleged : “11. The Petitioner submits that the said conduct of the Respondents 1 and 2 amounts to gross interference in due course of judicial proceedings. The petitioner further submits that the said threat and conduct of the Respondents 1 and 2 tends to interfere with and to obstruct the administration of justice and due process of law. Even otherwise and said conduct of the Respondents 1 and 2 amounts to gross contempt of this Hon'ble Court. The said action impinges and interferes with the Petitioner's right to approach this Hon'ble Court for redress of his grievances and amounts to using extra constitutional pressure on the litigant who has exercised his legal right to move this Hon'ble Court to seek justice. It is obvious that the Respondents 1 and 2 apprehend that in case the Silva Commission -6- of Inquiry is revived and the impugned notification it set aside then the action of the Custodians with connivance of some industrialists, encroachers, bureaucrats and politicians in their nefarious activities would be exposed. 12. It is therefore submitted that this Hon'ble Court should inquire into the matter and if found guilty, take action against the Respondents 1 and 2 under the Contempt of Court's Act 1971 and/or under Article 215 of the Constitution of India and/or such other General Law of contempt as this Hon'ble Court thinks fit and proper. 13. The petitioner has submitted a copy of this petition to the Advocate General to give his consent in writing under Section 15 of the Contempt of Court's Act 1971 and have pointed out the urgency of the matter but has not so far received his consent. 14. The Petitioner further submit that in view of the gross nature of the contempt, this Hon'ble High Court should suo moto inquire into the allegations made in this petition either under Section 15 of the Contempt of the Court's Act 1971 or exercise the power under Article 215 of the Constitution of India to uphold the dignity of the judiciary and the right of persons to approach this Hon'ble Court for -7- seeking justice and not be pressurized and threatened.” 11. It is in these circumstances that the petitioner prays that respondent nos. 1 and 2 be prosecuted under Contempt of Court's Act 1971 for their acts alleged in the Contempt Petition and which amount to interfering with and obstructing the administration of justice and due process of law. 12. It is undisputed before us that this is a petition alleging Criminal Contempt. In Para 13 of the petition which is reproduced above, the petitioner states that a copy of the Contempt Petition was submitted to the then Advocate General to give his consent in writing but the consent was not received till the date of institution of the Contempt Petition. 13. This Contempt Petition was instituted on 02.04.01 by the petitioner who has verified and affirmed on oath the allegations therein. 14. On 04.04.01, this Contempt Petition was placed before a Division Bench of this Court and it passed the following order : “P.C. We have heard the learned Senior Counsel for the -8- petitioner and it is transpired during the course of his address to us that the petitioner has already applied to the learned Advocate General for permission as required under Rule 5(c), Part II of the Contempt of Courts (Bombay High Court) Rules, 1994 which have been framed to regulate proceedings for contempt under Article 215 of the Constitution of India as well as the Contempt of Courts Act, 1971. Such an application has been received by the Advocate General's Officer on or about 02.04.01 and it is still pending for his considerations obviously. It would be, therefore, desirable that the petition is adjourned till 23rd April, 2001, awaiting orders to be passed by the learned Advocate General. Stand Over to 23.04.01.” 15. On 30.04.01, on which date this Contempt Petition was adjourned, the following Order was passed : “P.C. Heard Shri Dara Zaiwala, learned Senior Advocate for the Petitioner and Shri V. P. Thali, learned Advocate for the Respondent no.2. During the pendency of Writ Petition No. 393/2000, the Respondent nos. 1 and 2 have approached the Secretary of the Goa Legislative Assembly vide their letters dated 16th February, 2001 and 28th February, 2001 respectively giving a -9- notice of breach of privilege and contempt of the House under Rule 76 of the Rules or Procedure and Conduct of Business of the Goa Legislative Assembly against the Petitioner. We are satisfied that the case of contempt, prima facie, has been made out against the Respondent nos. 1 and 2 within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 and Article 215 of the Constitution and to take cognizance under Sections 12 and 15 of the said Act. Hence Rule. To be heard with Writ Petition no. 393/00.” 16. Our attention, thereafter, have been invited to an Order dated 22.07.08, passed by a Division Bench of this Court pointing out to the Order reproduced above and directing respondents to file reply to the Contempt Petition in the light of the Order passed by this Court admitting the Contempt Petition. The reply/affidavit was to be filed within three weeks and it is common ground that the time came to be extended after which, only respondent no.2 has filed a reply/affidavit. 17. The reply/affidavit of respondent no.2 is setting out the preliminary objection. The preliminary objection essentially highlighted before us is that the Contempt Petition ought to have been filed with the -10- consent of the Advocate General in writing. The Contempt Petition alleging a Criminal Contempt having not been filed with consent in writing of the Advocate General could not have been entertained and registered by this Court. It is contended that consent of the Advocate General is mandatory for taking cognizance of a Criminal Contempt. Section 15 of The Contempt of Courts Act, 1971, so also The Contempt of Courts (Bombay High Court) Rules, 1994, are referred to and it is urged that the Contempt Petition be dismissed on this ground alone. 18. The reply on merits is without prejudice to the preliminary objections and it is urged that the preliminary objections shall not be deemed to have been waived only because the reply on merits is filed in the Court. 19. We have heard Shri Kakodkar, learned Senior Counsel appearing for the Petitioner and Mr. Thali, learned Counsel appearing for respondent no.2 on the preliminary objections. 20. Mr. Kakodkar contended before us that the issue of maintainability of the Contempt Petition now cannot be raised. He invited out attention to the Oder dated 30.04.01, which has been reproduced above. It is urged by Shri Kakodkar that respondent no.2 had appeared when this -11- Court issued Rule on the Contempt Petition. There does not appear to be any argument on the point of maintainability. There is no objection raised to the Court taking cognizance of the Contempt Petition even without the consent of the Advocate General. Now, the issue of consent being mandatory and a prerequisite to the Contempt Petition being instituted and taken cognizance of , cannot be raised. The said objection is deemed to have been waived. He submits that the issue of maintainability, therefore, stands concluded. 21. In any event and in the alternative, Mr. Kakodkar submits that when the Court has found, prima facie, case of contempt and admitted the Contempt Petition, then, it is clear that the Court has taken cognizance of the matter on its own. Once the Court has taken action on its own, then, the issue of consent of the Advocate General pales into insignificance and is wholly irrelevant. This is, therefore, a Suo Moto Contempt Petition. Inviting our attention to the averments in the Contempt Petition, Mr. Kakodkar submits that in the petition itself, the petitioner has prayed that this Court should take notice of the Contempt Suo Moto and initiate proceedings under the Contempt of Courts Act, 1971. The Order passed on 30.04.01 is in consonance therewith and, therefore, the issue of maintainability does not arise. -12- 22. Mr. Kakodkar submits that when this Court passed the above Orders, the Judgment of the Hon'ble Supreme Court in the case of Bal Thackrey v. Harish Pimpalkhute & Ors. (2005) 1 S.C.C. 254, for short, Bal Thackrey, was not pronounced and delivered. However, the Judgment of the two Judge Bench of the Hon'ble Supreme Court in the case of P. N. Duda v. P. Shiv Shanker & Ors. (1988) 3 S.C.C. 167 was in the field. Replying upon the observations therein, so also in the earlier decisions, that the Division Bench has passed the above re­produced Order. There is no difference in the legal position even after the Judgment in Bal Thackrey's case . It is urged by Shri Kakodkar that the manner in which cognizance is taken, is a technical and procedural matter. There is no question of the proceedings being held to be not maintainable merely because there is non­compliance with the procedure laid down in that behalf. All that Bal Thackrey's case would emphasize is that when the proceedings are initiated Suo Moto there must be set Rules or Procedure and as far as possible, there should be strict adherence therewith. The Delhi High Court's Contempt Rules and Procedural aspects are quoted with approval in Bal Thackrey's case. That means the Chief Justice should initiate a Suo Moto contempt action after the matter is brought to his notice. Merely because such Rules are not in force in Bombay High Court, it does not mean that the Contempt Petition cannot be construed -13- as a Suo Moto Petition or that it is not maintainable. The Contempt Petition was admitted by a Division Bench presided over by the Senior Administrative Judge and, therefore, there is a complete compliance with the Rules then prevailing. The Contempt Petition is thus a Suo Moto Contempt Petition and the ruling in Bal Thackrey's case would not in any manner be applicable. For all these reasons, he urges that the Contempt Petition be held to be maintainable. Moreso, when the Advocate General had also appeared, when the above reproduced Orders were passed and he did not seek an adjournment nor sought time to consider the matter. His presence being very much noted in the Order, the requirement of this consent no longer subsists and hence even otherwise the Contempt Petition is maintainable. Shri Kakodkar has placed reliance upon a decision of learned Single Judge of this Court so also the Supreme Court decision in Bal Thackrey's case. 23. On the other hand, Shri Thali, appearing for respondent no.2, would urge that the issue of maintainability of the Contempt Petition in the light of the admitted and undisputed legal position, so also the facts emerging from the record, cannot be said to be concluded in any manner. He submits that the objection raised goes to the root of the matter. That apart, he submits that merely because respondent no.2 was present when the Order was passed by this Court admitting the Contempt Petition, it does not mean -14- that he has raised a preliminary objection or that the same is duly considered and answered against him. He submits that there is nothing in the Order which would indicate that this Court has gone into the issue of maintainability. He submits that when the Division Bench passed the Order, it had before it the pronouncement of the Division Bench of this Court at Nagpur in Bal Thackrey's case so also the Supreme Court decision in P. N. Duda's case, the legal position has been clarified thereafter. In such circumstances, the respondent no.2 is not precluded from raising the preliminary objection which, in any event, he had no opportunity to raise earlier. It is raised by him on affidavit and, therefore, this Court can very well go into the same and answer it. 24. Mr. Thali pointed out that the Contempt Pettion, read as a whole, is a petition by the writ petitioner. It is by a private party. It is not a matter where a private party has brought to the notice of this Court the issue raised in the Contempt Petition and thereafter the Court noticing the said issue, proceeded to take action. In other words, there is nothing in the petition and the Order passed which would indicate that this is a Suo Moto Contempt Petition. He submits that the Petition is filed and is being prosecuted by a private party who has already approached this Court in writ jurisdiction. It is his personal and private cause. He has purportedly been -15- threatened by supporters of respondent nos. 1 and 2 and that is how he has approached this Court alleging criminal contempt. Admittedly, there is no consent of the Advocate General obtained by him. There is no question of waiver thereof once it is mandatory prerequisite in law. He submits that this is not a Suo Moto Contempt Petition. Merely alleging and stating in the petition that the Court can take, alternatively Suo Moto action, is not enough. The record must indicate that the Court has acted Suo Moto and not on a petition by a party. The record must indicate that before the Contempt Petition was filed, some information or material is there which indicates that the Court took cognizance and decided to initiate Suo Moto action. Neither is there anything in the record which would indicate that the Contempt Petition is a Suo Moto proceeding nor is there anything in the Orders of this Court indicating the same. Even the notices issued to parties are on this Contempt Petition filed by a private party. In these circumstances, the law laid down in Bal Thackrey's case would squarely apply. For these reasons, the petition be dismissed as not maintainable. 25. For properly appreciating these contentions, it would be advantageous to refer to The Contempt of Courts Act, 1971. Since it is not in dispute that this is a petition alleging criminal contempt, we need not refer to the provisions and definitions in that behalf. Section 15 is the relevant -16- provision and it is reading thus : “15. Cognizance of criminal contempt in other cases.­(1) In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by­ (a) the Advocate­General, or (b) any other person, with the consent in writing to the Advocate­General, [or] (c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer. (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate­General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation.­ In this section, the expression “Advocate­General” means­ (a) in relation to the Supreme Court, the -17- Attorney­General or the Solicitor­General; (b) in relation to the High Court, the Advocate­ General of the State or any of the States for which the High Court has been established; (c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.” 26. A bare perusal of the same would indicate that in the case of criminal contempt, other than the one referred to in Section 14, the Supreme Court or the High Court may take action on its own or on a motion made by (a) the Advocate General or (b) any other person with the consent in writing of the Advocate General or in relation to the High Court or Union Territory of Delhi, the requirement is stipulated in sub­clause (c). Thus, High Court may take action on its own motion or on a motion made by the Advocate General himself or any other person with his consent in writing. The later part of this provision is not material for the purposes of deciding the preliminary objection. In the case of P.N. Duda v. P. Shiv Shanker & Ors. (supra), the Supreme Court refused to initiate Contempt Petition both under Section 15 (1)(a) and (b) of the Act read with the Supreme Court Contempt of Court Rules. It set out reasons for not doing so. While setting out reasons, the Supreme Court also held that no case was made out on merits. The -18- conclusions in that behalf of the two Judges constituting the Bench would show that both agreed that the Contempt Petition should be dismissed. 27. Sabyasachi Mukharji, J, as His Lordship then was, had gone through the entire speech delivered by P. Shiv Shanker who was then the Law Minister of India and in Para 7 observed that the petitioner Duda brought the newspaper version of the speech to the notice of the Bench and made allegations against P. Shiv Shanker. That Shri Duda did by addressing a letter. Therefore, the application for initiation of contempt was made and P. N. Duda, P. Shiv Shanker and the Attorney General and the Solicitor General were made parties together with the Editor of the newspaper. The application was moved before the Court and notice was directed to be issued to the above parties. The notice was confined to the question as to whether action should be initiated on the petition of Shri Duda and an Advocate was appointed as Amicus Curiae by the Court. Thereafter, P. Shiv Shanker filed his response and raised the issue of maintainability of the Contempt Petition by urging that the same was filed without the consent of the Attorney General and Solicitor General and, therefore, it was liable to be dismissed. From a reading of Para 8 of the Judgment rendered by His Lordship Mukharji, J, it is clear that he dealt upon the contents of the speech and whether that makes out a case of criminal contempt and has not considered -19- the issue of maintainability. The other learned Judge of the Bench S. Ranganathan, J, as His Lordship then was, went ahead and rendered his opinion on the issue of maintainability. Our attention was invited to paragraph 54 and 55 of this Judgment so also Para 61 and the conclusions of His Lordship Ranganathan, J. From a perusal of these paragraphs together with the Judgment of Justice Mukharji