# G BARADAKANTA MISHRA, EX-COMMISSIONER OF ENDOWMENTS v. BHIMSEN DIXIT

- **Citation:** [1973] 2 S.C.R. 495
- **Court:** Supreme Court of India
- **Decided:** 1972-09-29
- **Case number:** Criminal Appeal No. 312 of 1971
- **Bench:** J.M. Shelat, S. N. Dwivedi Andy. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-baradakanta-mishra-ex-commissioner-of-endowments-v-bhimsen-dixit-5868
- **Pages:** 7

## Headnote

Orissa Hindu Religious Endowments Act- APJ1ointment of interim
trustee under s. 41 without enquiry-High Court's decision on the identical
point not followed in bad faith by Comml,'!Sioner of Endowments in revision an1ounts to contempt-Bonafide but erroneous ·distinguishing of a
binding precedent not contempt.
Under S. 27 of the Orissa Hindu Religious Endowments Act, the
Additional Assistant Commissioner of Hindu Religious Endowments, appointed an interim trustee of two deities in a village in Orissa. The person
in charge of the deities made an objection under S. 41 of the said Act,
that since the deities were consecrated under a private endowment, the
Act did not apply to the facts of the case. The Additionai Assistant Commissloner rejected the objection without making any inquiry under S.41.
The objector filed a revision under s. 9 of the said Act, before the appellant.
During the period between the rejection of the objection and the filing
of the revision, the Orissa High Court in Bhramarbar Santra & Ors. v.
State of Orissa and
Others,
I.L.R.
1970 Cuttack 54 decided the
identical question and (the High Court) held that the Assistant Commissioner cannot appoint an interim trustee under s. 27 until he has held
an inquiry under s. 41 and has found that there was no heriditary trustee
of the religious institution.
At the hearing of the revision, the said decision of the High Court
was cited before the appellant, but the appellant did not follow it and disn1issed the revision.
The applicant filed a writ petition, in the High Court against this order.
The Division Bench on hearing the applicant issued notice to contempt
of the High Court to the applicant. The High Court took exception to
the following sentence occurring at the end of paragraph 2 jn hi~ order :-
"Further, against the order we have moved the Supreme Court,
and as such, the matter can be safely deemed to be sub-judice."
and held .that the appellant was guilty of contempt of Court. On appeal
before this Court, 11 :-VM contended tha~ the appellant was not guilty of
contempt of court, tor, the sentence m the appellant's order. ·neither
mterfered with the administration of justice, nor scandalised
the
High
Court.
Dismissing the appeal,
.
HELD.: (I) Contempt ~f court is disObe.die.nce to the court by acting
m. opposition to the a!'thority, 1us1Ice and d1gmty thereof, it signifies the
\\Illtul dJSregard or d1sobed1ence of the court's order. It also signified
such conduct as fends to bring the authority of the court and the administration of law into disrepute, Oswald's Contempt of Court, 1910 Edn, pp.
H
5-6 referred to. [-196 DJ
· Iii) _It is.• common-place that. whe:e the superior court's order staying
l-'roceed1ngs 1s disobeyed by the 1nfenor court to '"°·horn it is addre.lsed,
Jhe latter court commits contempt of court for it acts in disobedience to
496
SUPREME COURT REPORTS
[1973) 2 s.c.R',
the authority of the former court. The act of disobedrence. is calculated to
undermine public respect for the superior court and to jeopardise the preservation of .Jaw and order. [496 EJ
(iii) The r.ppellant is guilty of contempt. Firstly, on the date of the
order, nolbing was pending in the Supreme Court; only a. petition
was
pending
in the High Court form
a certificate to appeal
to the Supreme Court from the decision in Bhramarbar Santra's Case. The
appellant has thus made a wrong statement of fact. Secondly, the use of
the word "we" is also significant. It indicates tl)at the appellant identified
himself as a litigant in the case and did not. observe due detachment and
decorum as a quasi-judicial authority. Lastly, it is nor possible to believe
that the appellant, who had 23 years of judicial experience,· could have
entertained the view that as soon as a petition for certificate to apJ?eal
to the Supreme Court was fiiled in the High Court against the decision,
the binding· character of the decision disappeared. It is, therefore;. clear
that the appellant deliberately avoided to

## Text

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BARADAKANTA MISHRA,
EX-COMMISSIONER OF ENDOWMENTS
v.
BHIMSEN DIXIT
September 29, 1972
495
[J.M. SHELAT, S. N. DWIVEDI ANDY. V. CHANDRACHUD, JJ.)
Orissa Hindu Religious Endowments Act- APJ1ointment of interim
trustee under s. 41 without enquiry-High Court's decision on the identical
point not followed in bad faith by Comml,'!Sioner of Endowments in revision an1ounts to contempt-Bonafide but erroneous ·distinguishing of a
binding precedent not contempt.
Under S. 27 of the Orissa Hindu Religious Endowments Act, the
Additional Assistant Commissioner of Hindu Religious Endowments, appointed an interim trustee of two deities in a village in Orissa. The person
in charge of the deities made an objection under S. 41 of the said Act,
that since the deities were consecrated under a private endowment, the
Act did not apply to the facts of the case. The Additionai Assistant Commissloner rejected the objection without making any inquiry under S.41.
The objector filed a revision under s. 9 of the said Act, before the appellant.
During the period between the rejection of the objection and the filing
of the revision, the Orissa High Court in Bhramarbar Santra & Ors. v.
State of Orissa and
Others,
I.L.R.
1970 Cuttack 54 decided the
identical question and (the High Court) held that the Assistant Commissioner cannot appoint an interim trustee under s. 27 until he has held
an inquiry under s. 41 and has found that there was no heriditary trustee
of the religious institution.
At the hearing of the revision, the said decision of the High Court
was cited before the appellant, but the appellant did not follow it and disn1issed the revision.
The applicant filed a writ petition, in the High Court against this order.
The Division Bench on hearing the applicant issued notice to contempt
of the High Court to the applicant. The High Court took exception to
the following sentence occurring at the end of paragraph 2 jn hi~ order :-
"Further, against the order we have moved the Supreme Court,
and as such, the matter can be safely deemed to be sub-judice."
and held .that the appellant was guilty of contempt of Court. On appeal
before this Court, 11 :-VM contended tha~ the appellant was not guilty of
contempt of court, tor, the sentence m the appellant's order. ·neither
mterfered with the administration of justice, nor scandalised
the
High
Court.
Dismissing the appeal,
.
HELD.: (I) Contempt ~f court is disObe.die.nce to the court by acting
m. opposition to the a!'thority, 1us1Ice and d1gmty thereof, it signifies the
\\Illtul dJSregard or d1sobed1ence of the court's order. It also signified
such conduct as fends to bring the authority of the court and the administration of law into disrepute, Oswald's Contempt of Court, 1910 Edn, pp.
H
5-6 referred to. [-196 DJ
· Iii) _It is.• common-place that. whe:e the superior court's order staying
l-'roceed1ngs 1s disobeyed by the 1nfenor court to '"°·horn it is addre.lsed,
Jhe latter court commits contempt of court for it acts in disobedience to
496
SUPREME COURT REPORTS
[1973) 2 s.c.R',
the authority of the former court. The act of disobedrence. is calculated to
undermine public respect for the superior court and to jeopardise the preservation of .Jaw and order. [496 EJ
(iii) The r.ppellant is guilty of contempt. Firstly, on the date of the
order, nolbing was pending in the Supreme Court; only a. petition
was
pending
in the High Court form
a certificate to appeal
to the Supreme Court from the decision in Bhramarbar Santra's Case. The
appellant has thus made a wrong statement of fact. Secondly, the use of
the word "we" is also significant. It indicates tl)at the appellant identified
himself as a litigant in the case and did not. observe due detachment and
decorum as a quasi-judicial authority. Lastly, it is nor possible to believe
that the appellant, who had 23 years of judicial experience,· could have
entertained the view that as soon as a petition for certificate to apJ?eal
to the Supreme Court was fiiled in the High Court against the decision,
the binding· character of the decision disappeared. It is, therefore;. clear
that the appellant deliberately avoided to follow the High Court's decision
by giving wrong and illegitimate reasons and that his conduct is 'clearly
mala-fide'.. [496 OJ
Under Art. 227 of the Constitution, th• High Court is vested with. the
power of superintendence over the Courts and tribunr.!s in the State. Acting
as a quasi-judicial authority, the appellant was also subject to the super'
intendence of the High Court. Accordingly, the decisions of the High
Court were binding on him. He could not get away from them by adducing factually wrong and illegitimate reasons. The conduct of the appellant in not following the previous decision of the High Court is- calculated.
to create confusion in the administration of la\\', which \rill undermine
respect for law laid on by the High Court and impair the constitutional
authority of the High Court. Therefore, the High Court has rightly found.
the appellant guilty of contempt. A bonafide but mistaken act of disting'
uishing a binding precedent does not amount to contempt. [500 BJ
Emt India Commercial Co. Ltd .. Calcutta & Am-. v. The Collector of
Customs, Calcutta,. [19631 3 S.C.R. 338, 'referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
312 of 1971.
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Appeal by special leave from the Judgment and order dated
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July 8. 1971 of the Orissa High Court in Original Criminal Misc.
case No. 9 of 1970.
C. K. Daphtary, A. K. Verma and B. P. Singh, foir the appellant.
Lal Narain Sinha, Solicitor-General of India and U. P. Singh,
G
for respondent No. 2.
The Judgment of the Court was delivered by
Dw1vEm,.J. The appellant is a member of ~he Superior Judictal
Service of the State of Orissa,
He was at one time officiating
as District Judge. · At the relevant time he was filn~tioning as
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Commissioner of Hindu Religious Endowmi;nts, . Onssa. . '.fhe
office of the Commisisoner is created by the Onssa Hmdu Religious
Endowments Act.
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ll. MISHRA l'. H. D!Xll (D11fredi, /.)
497
In .-ilbge Sanabagalpur there are two deities. The Additional
Assistant CommissioPer of Hindu Religious Endowments took
action under s. 27 of the said Act for appointing an interim trustee
of the deities. The person incharge of the deities made an objec•
tion unde1' s. 41 of the s:1id Act that the Act did not apply as the
deities were consecrated under a private endowment made by him.
The Additional Assistant Commissioner rejected the objection by
im order dated July 26, 1967.
Without making any inquiry
under s . .+I. he held that prima facie there was a public endowment. He did not appoint the objector as a trustee of the deities.
The objector filed a revision under s. 9 o{ the said Act before
the appellant.
During the period intervening 'between the rejection of the
objection by the Addi. Assistant Commissioner and the filing of
the revision by the objector, the identical issue was raised before
the Orissa High Court in Bhramarbar Santra and others v. State
of Orissa and others( 1). In that case the High Court held that
the Asstt. Commissioner cannot appoint an interim trustee under
s. 27 of the said Act until he has held an inquiry under s. 41 ancl
has found that there was no hereditary trustee of the
religious
institution ...
At the hearing of the revision the aforesaid decision was cited
before the appellant by the applicant. After hearing the parties,
the appellant made the following order :
"1. .... It is said on behalf of the petitioner that
he has filed a petition under section 41 of the Act. But
no evidence is produced tci that effect, thereby d:sclosing
that their plea is humbug. The next argument rs that
the · karned Assistant Commissioner should have first
decided that the institution has no hereditary trustee.
The Assistant Commissione·r has impliedly done so.
2. The next argument that without a final declaration as to the nature of the institution, no appointment
under Section 27 can be made, does not seem to be
correct.
The decision in the High Court on Bantala
case would not be applicable to this instance. Further
against the order, .we have moved the Supreme Court, and.
as such, the matter can be safely deemed to be subjudice.
3. In order to establish that the petitioner is the
her~ditary trustee, he has to file an application under
section 41 of the Act. No doubt the coμrt can initiate
such a proceeding,
But we should not do it where the
institution appears to be safely a public one. in this instance, a Siva temple."
fl) 1.L R. 1970 Cutfnck 54.
498
SUPREME COURT REPORTS
[1973] 2 S.C.R.
. The applicant filed a writ petition in the High Court against
this order. The Division Bench, on hearing the applicant, issued
notice for contempt of the High Court to the appellant. The High
Court took exception to the following sentence occurring at the
end of paragraph 2 in his order : "Further against the order we
have moved the Supreme Court, and as su'ch, the matter can be
safely deemed to be sub judice."
The appellant appeared before the High Court in response
to the notice.
According to him the apparently objectionable
sentence in his order "was not at a!l the basis for (his) decision."
He said that the revision was dismissed by him after distinguishing
the case before him from the facts of Bhramabar Santra.( 1 )
He
further pleaded "that under the Constitution the decisions of the
Supreme Court are law of the land. So, I bonafide, was of the
opinion that when a matter is under appeal, or otherwise before
the Supreme Court, the point of law, becomes subj1,1dice and only
a decision of the Supreme Court in the matter, wodld be binding
on the Subordinate Court.." It was also pleaded tliat the proceeding before him was an administrative proceeding and that the
act of not following the decision of the High Court in such a
proceeding "may not amount to contempt of court."
The High Court did not accept his pleas in justification. It
was held that the appellant "refused to follow" the decision in
Bhramarbar Santra and others.(') The High Court further held
that "we do not find any trace of bonafides of the contemner in
the order dated 19th January, 1970.
. ..... The contemner is a
senior judicial officer who has already put in 23 years of service;
having been recruited as a Munsif he has now risen to the rank
of District Judge. We regret to find that though he has functioned
as a judicial officer for about 23 years he has not been able to
pick up the approach and attitude of a judicial officer and has
actuated. by the bias so often manifested in action of the executive
today while disposing of a judicial· proceeding and when found
fault with has come up with the stand that he was acting administratively."
After examining the matter further, 1he High Court 5aid :
"The conduct of the contemner far from being bonafide is clearly
a malafide one and he intentionally avoided to follow the decision
of this Court by advancing grounds which were most inappropriate." On that view of the matter the High Court found him
guilty of contempt of court and admonished him in open court and
directed him to pay Rs. 301) as costs of the proceedings.
Shri Daphtary, counsel for the appellant. rightly did not seek
to support the justificatory pleas. His argu•nent now is that the
(I) I.LR. 1970 Cuttack 54.
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B. MISHRA V. B, DIXIT (Dwivedi, J.)
499
appellant is not guilty of contempt of Court, for the sentence in
the appellant's order; found objectionable by the High Court,
Ii~ither interferes with the administration of justice nor scandaJises the High Court.
·
Shri Daphtary as well as the. Solicitor-General appearing for
the State have stated before us. that there is no decided case either
in support of or against the argument. But the absence of a precedent should. not preclude an act being held to be ·contempt merely
becau.e it is novel or. unusual provided it is comprehended by the
principles underl~ing .the Jaw of Contempt of Court. The absence
of precedent should' however put the court on guard that the ar!a
of contempt is not being unduly expanded ( Vide 17 Corpus Juris
Secundum 21). The present case tl'ien is to be decided on principles and analogy.
Contempt of Court is disobedience to the court, by acting in
opposition to the authority, justice and dignity thereof. It signifies
a willful disregard or· disobedience of tbe court's order; it also
signifies such conduct as tends to bring the aμthority of the. cQurt
and the administration. of)'aw il}t\l' disreP.μ,te. • ( Vide 1 'l Corpus
Juris Secundum pages S··aQt 6; :Contempt by Ed'!l'afd N.. D~gel
(.1939 Egn.) page 111 .. •Osiwfcl's Contcrilpt c{COu.rt { 1910 Edn:)
pages· s ·and 6). · ·
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· · ·
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It' is a comnionplace 'that where the superior court's oi:der
staying proceedings is disobeyed by the inferior court to' whom it
is addressed, the latter eourt commits contempt of court for 1t a9ts
in disobedience to the authority of the fotmet' ,court. . The a~t
of disobedience is calculated to undermine public respect for the
superior court and jeodardisc the preservation of law and order.
The appellant's case is to be eiramined in the light of the foregoing
principles and analogy.
The remark in the appellant's order found objectionable by
the High Court is this : "Further, against the order we have moved
the Supreme Court, and as such the matter can be safely deemed
to be subjudice." It maybe observed that on the date of the order · .
nothing was pending in the Supreme Court; only a pefo:ion was
pending in the High Court for a certificate to appeal to· the Supreme
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Court from the decision ·in Bhramarbar Sanlra.( 1) The app~Jlant
has thus made a wrong statement of fact.
Secondly, the use of
the personal pronoun "We" is also significant. It indicates that
the appellant identified himself as a Htigant in the case and did
not observe due detachment and decorum as a
quasi
judicial
authority.
Lastly, we agree with the High Court that it is not
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possible to believe that the appellant could hav~ entertained the
view that as soon as a petition for :ertificate ·lo appeal to the
(!) I.LR. 1970 Cuttack 54.
500
SUPRE~fE COURT REPORTS
[1973] 2 S.C.R.
Supre~e. Court was filed in the High Court against its decision,
A
the bmdmg character of the decision disappeared.
He has 23
yea_rs' judicial experience and he could scarcely entertain that
belief.
We agree with the High Court that the appellant delibe- ·
rately avoided to follow its decision by giving wrong and illegitimate reasons and that his conduct was "cleai:Iy mala fide".
Under Art. 227 of the Constitution, the High Court is vested
with the power of supermtendence over the courts and tribunals
in the State. Acting as a quasi judicial authority under the Orissa
Hindu Religious Endowments Act, the appellant was suiJject to the
superintendence of the High Court. Accordingly the decisions of
the High Court were binding on him.
He could not get away
from them by adducing factually wrong and illegitimate reasons ..
In East India Commercial Co. Ltd. Calcutta and Another v_ The
Collector of Customs, Calcutta(') Subba Rao J. observed :
'
"The Division Bench ·of the High Court held- that
a contravention of a condition imposed by a · lic~nce
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issued under the Act is not an offence under s. 5 of the
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Act.
This raises the question whether an administrative tribunal can ignore the law declared by the highest
court ln the State and initiate proceedings in direct violation of the law so declared. Under Art. 215, everyHigh.
Court shall be a court of record and shall have all the
powers of such a court including the power to punish
E
for contempt of itself. Under Art. 22(), it has a plenary
power to issue orders or writs for the enfo;cement of the
fundamental rights and for any other purpose to any
petson or authority, including in appropriate cases any
·Government, within its territorial jurisdiction .. Under·
Art. 227 it has jurisdiction over ail courts and tribunals ·
throughout the territories in relation to which it exercise
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jurisdiction. It would be anomalous to suggest that a
tribunal over which the High Court has superintendence
can ignore the la'w declared by that court and start proceedings in direct violation of it. If a tribunal can do
so, all ·tlie subordinate courts can equally do so, for there
is no specific provision, _just like in the case of Supreme
G
Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of
supervision conferred on a superior tribunal that .all tbe
tribunals subject to its supervision ~hould . cqnform ·to.
the l!!w laid down by it. Such 'obedien'Ce \vould also be · . '~ .·
- •
con!fucive· to their smooth· .workin.g;· ·other.Wise · there ·
:-
would be confusion in the admini.stration pf law an4.' · · · .H
r~spect for law would frret_rieyably/su_ffer."'
· , ·
(Jl [!96J] 3 S.CR: JJ~ at 366.
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The conduct of the appellant in not following the previous
decision of the High Court is calculated to create confusion in the
adwinistration of law. It will undermine respect for law laid down
by the High Court and impair the constitutional authority of the
High Court. His conduct is therefore comprehended by the principles underlying the iaw of Contempt. The analogy of the inferior
court's disobedience to the specific orde~ of a superior court also
suggests that his conduct falls within the purview of the Jaw of
Contempt.
Just as the disobedience to a specific order of the
Court undermines the authority and dignity of the court in a
particular case, similarly the deliberate and malafide conduct of
not following the Jaw laid down in the previous decision undermines the constitutional authority and respect of the Hi~h Court.
Indeed, while the former conduct has repercussions on an mdividual
case and on a limited number of persons, the latter conduct has
a much wider and more disastrous impact. It is calculated not
only to undermine the constitutional authority and respect of the
High Court, generally, but is also likely to subvert the Rule of
Law "'1d engender harassing uncertainty and confusion in the
administration of law.
Our view that deliberate and malafide conduct of not following the binding precedent of the High Court is contumacious does
not unduly enlarge the domain of contempt. It would not stifle
a bona fide act of distinguishing the binding precedent,
even
thcugh it may take out to be mistaken.
As a result of the foregoing discussion, we think that the
High Court has rightly found the appellant guilty of contempt.
So wi: dismiss the appeal.
s.c.
A11pea/ dismissed.