# THAKUR JUGAL KISHORE SINHA v. SITAMARW CENTRAL CO-OPERATIVE BANK LTD. & ANR

- **Citation:** [1967] 3 S.C.R. 163
- **Court:** Supreme Court of India
- **Decided:** 1967-03-13
- **Case number:** Criminal Appeal No. 18 of 1965
- **Bench:** J. M. Shblat, G. K. Mittbr
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-jugal-kishore-sinha-v-sitamarw-central-co-operative-bank-ltd-anr-4192
- **Pages:** 18

## Headnote

Bihar and Orissa Co-operative Societies Act, 1935-Asslstant Reglstrtlf'
Co-operative Societies acting
under s. 48-Whether a court-Whether
subordinate to the High Court for the purpose of contempt of Courts Act,
1952, •. 3.
The apeellant in an appeal to the Joint Registrar of Co-operative
Societies B1har alleged that the Assistant Registrar in deciding a matter
against him under s. 48 of the Bihar and Orissa Co-operative Societies
Act 1935 had discriminated against the appellant and had used double
standards. In proceedings under the Contempt of Courts Act the High
Court of Patna held the appellant guilty.
Appeal :-Vith .certificate W'.15
filed in this Court. The questions that fell to: conSider~tlon were : (1)
whether the Assistant Registrar of· Co-operative Soc1et1es was a court
within the meaning of the Contempt of Courts Act 1952; (ii) If a court,
whether it was a court subordinate to the Patna High Court; (iii} whether
the words used by the appellant in his appeal amounted to contempt.
HELD : The appellant had been rightly convicted.
(i) The Assistant Registrar was functioning as a court in deciding the
dispute in question.
His a'djudication was not based upon a private refe·
rence nor was his decision arrived at in a summary manner, but with all
the parapharnalia of a court and the powers of an ordinary civil court of
the land. [173 El
(Decision confined to cases under the Bihar Act only). [180 G]
Brajnandan Sinha v,. Joyti Narain, (1955] 2 S.C.R. 955 and Shri Virin·
dar Kumar Satyawadi v. The State of Punjab, [1955] 2 S.C.R .. 1013, relied on.
Shell Co. of Australia v. Federal Coommissioner of Taxation, [1931]
A.C. 275, Bharat Bank Lim#ed v. Employees of Bharat Bank Ltd. [1950]
S.C.R. 459, Maqbool Hussain v. State of Bombay, [1963] S.C.R. 730,
C:ooper v. Wilson, [1937] 2 K.B. 309, Huddart, Parker & Co. v. Moorehead, ( 1909) 8 C.L.R. 330, Malabar Hill Co-operative Housing Society
v. K. L. Gauba, A.I.R. 1964 Bom. 147, Raja Himanshu Dhar Sing/1 v
Kunwar B. P. Sinha, 1962 All. L.J. 57, Sukhdeo v. Brij Bhushan, A.I.R:
1951 All. 667, In re Annamalai, A.l.R. 1953 Madras 362 Kapur Singh
v. lag_at Narain, A.LR. 1951 Punj. 49,
Lakhama Pesha ~.
VenkatraD
Swamirao, A.LR.
1955 Bom.
103, Budhi Nath Iha v. Manila! Jadav,
A.I.R. 1960 Patna 361 and State of Uttar Pradesh v. Ratan Shukla, A.I.R.
1956 AU. 258, referred to.
(H) The Assistant Registrar was a court subordinate to the High Court
for the purpose of s. 3 of the Contempt of Courts Act. Under Art. 227 of
the Constitution the High Court exercises judicial control over all courts
and tribunals functioning' within the limits of its territorial jurisdiction.
Subordination for the purposes of s. 3 means judicial subordination and
not subordination under the hierarchy of courts under the Civil Procedure
164
SUPREME COURT REPORTS
[1967) 3 S.C.R.
Code or the Criminal Procedure Code Article 228 of the Const:tution
A
does not indicate that unless a High Court can withdraw a case to itself
from another court for dispos;ng of a·.substantial question of law as to the
interp:etation of the Consftution the. latter court is not subordinate to
the High Court. [176 D; 179 C, F]
(iii) The words used by the appellant clearly amounted to contempt.
[166 El
It is in the interes~ of just~ce and administration of law that litigants
should show the >ame respect to a court no matter whether it is the highest in the land or whether it is one of :nferior jurisdiction only. [180 E-F]

## Text

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THAKUR JUGAL KISHORE SINHA
v.
SITAMARW CENTRAL CO-OPERATIVE BANK LTD. &
ANR.
March 13, 1967
(J. M. SHBLAT AND G. K. MITTBR, JJ.]
Bihar and Orissa Co-operative Societies Act, 1935-Asslstant Reglstrtlf'
Co-operative Societies acting
under s. 48-Whether a court-Whether
subordinate to the High Court for the purpose of contempt of Courts Act,
1952, •. 3.
The apeellant in an appeal to the Joint Registrar of Co-operative
Societies B1har alleged that the Assistant Registrar in deciding a matter
against him under s. 48 of the Bihar and Orissa Co-operative Societies
Act 1935 had discriminated against the appellant and had used double
standards. In proceedings under the Contempt of Courts Act the High
Court of Patna held the appellant guilty.
Appeal :-Vith .certificate W'.15
filed in this Court. The questions that fell to: conSider~tlon were : (1)
whether the Assistant Registrar of· Co-operative Soc1et1es was a court
within the meaning of the Contempt of Courts Act 1952; (ii) If a court,
whether it was a court subordinate to the Patna High Court; (iii} whether
the words used by the appellant in his appeal amounted to contempt.
HELD : The appellant had been rightly convicted.
(i) The Assistant Registrar was functioning as a court in deciding the
dispute in question.
His a'djudication was not based upon a private refe·
rence nor was his decision arrived at in a summary manner, but with all
the parapharnalia of a court and the powers of an ordinary civil court of
the land. [173 El
(Decision confined to cases under the Bihar Act only). [180 G]
Brajnandan Sinha v,. Joyti Narain, (1955] 2 S.C.R. 955 and Shri Virin·
dar Kumar Satyawadi v. The State of Punjab, [1955] 2 S.C.R .. 1013, relied on.
Shell Co. of Australia v. Federal Coommissioner of Taxation, [1931]
A.C. 275, Bharat Bank Lim#ed v. Employees of Bharat Bank Ltd. [1950]
S.C.R. 459, Maqbool Hussain v. State of Bombay, [1963] S.C.R. 730,
C:ooper v. Wilson, [1937] 2 K.B. 309, Huddart, Parker & Co. v. Moorehead, ( 1909) 8 C.L.R. 330, Malabar Hill Co-operative Housing Society
v. K. L. Gauba, A.I.R. 1964 Bom. 147, Raja Himanshu Dhar Sing/1 v
Kunwar B. P. Sinha, 1962 All. L.J. 57, Sukhdeo v. Brij Bhushan, A.I.R:
1951 All. 667, In re Annamalai, A.l.R. 1953 Madras 362 Kapur Singh
v. lag_at Narain, A.LR. 1951 Punj. 49,
Lakhama Pesha ~.
VenkatraD
Swamirao, A.LR.
1955 Bom.
103, Budhi Nath Iha v. Manila! Jadav,
A.I.R. 1960 Patna 361 and State of Uttar Pradesh v. Ratan Shukla, A.I.R.
1956 AU. 258, referred to.
(H) The Assistant Registrar was a court subordinate to the High Court
for the purpose of s. 3 of the Contempt of Courts Act. Under Art. 227 of
the Constitution the High Court exercises judicial control over all courts
and tribunals functioning' within the limits of its territorial jurisdiction.
Subordination for the purposes of s. 3 means judicial subordination and
not subordination under the hierarchy of courts under the Civil Procedure
164
SUPREME COURT REPORTS
[1967) 3 S.C.R.
Code or the Criminal Procedure Code Article 228 of the Const:tution
A
does not indicate that unless a High Court can withdraw a case to itself
from another court for dispos;ng of a·.substantial question of law as to the
interp:etation of the Consftution the. latter court is not subordinate to
the High Court. [176 D; 179 C, F]
(iii) The words used by the appellant clearly amounted to contempt.
[166 El
It is in the interes~ of just~ce and administration of law that litigants
should show the >ame respect to a court no matter whether it is the highest in the land or whether it is one of :nferior jurisdiction only. [180 E-F]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
18 of 1965.
•
Appeal from the judgment and order dated December 14, c
1964 of the Patna High Court in Original Criminal Misc. No. 6
of 1964.
B. P. Singh, for the appellant.
D. Goburdhun, for respondent No. 1.
U. P. Singh, for respondent No. 2.
The Judgment of the Court was delivered by
Mitter, J.
This appeal by certificate granted by the High
•Court at Patna under Art. 134 ( 1 )( c) of the Constitution is
directed against the judgment and . order of that court dated
December 14, 1964 in Criminal Miscellaneous Appeal No. 6 of
1964 whereby the appellant was found guilty of contempi of
court, i.e., of the Assistant Registrar, Co-operative Societies,
Sitamarhi Circle, exercising the powers of the Registrar, Cooperative Societies, Bihar under s. 48 of the Bihar and Orissa Cooperative Societies Act, 1935.
The three questions which were argued before us in this
appeal were :- ( 1) Whether the Assistant Registrar of Co-
·operative Societies was a court within the meaning of the Contempt of Courts Act, 1952; (2) Even if it was a court, whether
it was a court subordinate to the Patna High Court and ( 3)
whether the words used by the appellant in one of his grounds of
appeal to the Joint Registrar of Co-operative Societies, which
formed the basis of the complaint, did amount to contempt of any
court.
The facts necessary for the disposal of the appeal are as
follows. The Sitamarhi Central Co-operative Bank Ltd. (formerly
named as Sitamarhi Central Cooperative Union) was a society
registered under the Bihar and Ori~sa Co-operative Societies Act,
1935, hereinafter referred to as the Act. The appellant was the
elected Chairman of the Society and was in control of its entire
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JUGAL KISHORE v .• CO-OP, BANK (Mitter, J.)
16S·
affairs. The bank was engaged in carrying on a business inter alia
in salt, sugar and kerosene oil. It was alleged that the appellant
entrusted to one Suraj Banshi Choudhary the work of supplying
coal for which purpose he was given an advance of R$. 7 ,004-5-0
and that out of this amount a sum <>f Rs. S,014-5-9 could not be.
realised from Suraj Banshi Choudhary. Thereafter, a surcharge
proceeding under s. 40 of the Act was taken up before the Registrar of Co·operative Societies on December 22, 1953 when a
sum of Rs. 14,288-13-9 was held to be realisable from the appellant and another person.
The appellant went in appeal to the
State Government and by an order dated March 28, 1957 the
amount was reduced to Rs. 5,014-5-9. The bank was not made
a party to the appeal before the State Government and it raised.
a dispute under s. 48 of the Act that the appellant was liable for
the whole of the original amount of Rs. 14,288-13-9 on the ground
that the State Government's order being ex parte was not binding
on it. This dispute went to the Assistant Registrar of Co-operative
Societies exercising powers of the Registrar under s. 48 of the
Act.
On May 15, 1964, the Assistant Registrar decided the
matter upholding the contention of the bank and making the
appellant liable for the entire amount of Rs. 14,288-13-9. In the
meantime, however, the appellant had challenged his liability for
the amount of Rs. 5,014-5-9 as determined in appeal by the State
Government by a Writ Petition to the High Court of Patna which
was dismissed.
He then filed a title suit before the Subordinate
Judge of Muzaffarpur who decreed it in his favour and at the time
when the contempt matter was heard by the Patna High Court,
an appeal preferred by the bank from the said decree was pending
before the District Judge, Muzaffarpur. The appellant preferred
an appeal to the Joint Registrar of Co-operative Societies against
the order of the Assistant Registrar who was made respondent
No. 2 in the appeal. One of the grounds of appeal ran as
follows:-
"For that the order of respondent No. 2 is ma/a
~de inasmuch. as after receiving the order of transfer he
smgl_ed out this case out of so many for disposal before
makmg over charge and used double standard in judging the charges against the defendants Nos. 1 and 2.
It is prayed that it should be declared that the order
of the Assistant Registrar is without jurisdiction, illegal
~nd ma/a fide and heavy costs should be awarded makmg respondent No. 2 responsible mainly for such costs."
The bank filed an application in the Patna High Court on
August 14, 1964 for starting proceedings in contempt against the
appellant.
The aopellant filed a petition showing cause and in
grounds 29 and 30 of his petition, he asserted that he was within·
166
SUPREME COURT REPORTS
[1967] 3 s.c.R.
his legitimate right to call the decision of the Assistant Registrar
mala fide for the reasons given and that he had the right to criticise. the discriminatory order of the Assistant Registrar as. the said
officer had laid down two standards in judging the alleged liability
of himself and Sri Jagannath Jha by exonerating Jagannath Jha
from the liability for the entire amount of Rs. 14,288-13-9 while
holding the appellant liable for the entire amount without examining tlie up-to-date position of payment of the amounts for which
the claim had been preferred. In a supplementary affidavit filed
on October 28, 1964, the appellant further stated that the order
of. the Assistant Registrar was mala fide in that at the time when
it was made the Assistant Registrar was due for transfer and he
had picked out two or three cases out of about fifty pending before
him.
The High Court at Patna turned down all the contentions of
the appellant in an elaborate judgment and held that the appellant
was guilty of a calculated contempt. He was sentenced to undergo
simple imprisonment until the rising of the court and to pay a fine
of Rs. 200 in default whereof he was to undergo a further simple
imprisonment for two weeks.
The last of the three points urged before this Court was the
weakest to be advanced. There can be no doubt that the w0rds
used in this case in the grounds of appeal clearly amounted to
contempt of court provided the Assistant Registrar was a court
and the Contempt. of Courts Act was applicable to the facts of
the case. The Assistant Registrar was charged with having acted
ma/a fide in that he had singled out the case of the appellant out
of many for disposal and used a double standard in his adjudication against the appellant and Jagannath Jha clearly meaning
thereby that the Assistant Registrar had fallen from the path of
rectitude and had gone out of his way in taking up and disposiRg
of the case of the appellant out of many which were pending
before him and which he could not possibly have completed
because of his imminent transfer.
According to Halsbury's Laws of England (Third Edition-·
Vol. 8) at p. 7,:
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"Any act done or writing published which is calcuG
lated to bring a court or a Judge into contempt, or to
lower his authority, or to interfere with the due course
of justice or the lawful process of the court, is a contempt of court.
Any episode in the administration of
justice may, however be publicly or privately criticised,
provided that the criticism is fair and temperate and
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made in good faith.
The absence of any intention to
refer to a court is a material point in favour of a person
·alleged to be in contempt."
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JUGAL KISHORE v. CO-OP. BANK (Mitter,/.)
167
A We can find nothing exculpatory in the reply to the show cause
notice filed by the appellant before the Patna High Court. There
he sought to justify his complaint made in hi9 grounds of appeal.
The criticism of the Assistant Registrar was neither fair nor temperate nor made in good faith. The obvious aim of the appellant
m formulating his grou!Jd of appeal in the way it was done was
to show that the Assistant Registrar had acted in a manner which
was contrary to judicial probity and that he should therefore be
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penalised in costs.
The third ground therefore is devoid of any substance and
cannol be accepted.
In order to appreciate whether the Assistant Registrar was
functioning as a court, it is necessary to examine certain provisions of the Act. The Act which is both a consolidating and an
amending one was enacted to facilitate the formation, working
and consolidation of co-operative societies for the promotion of
thrift, self-help and mutual aid among agriculturists and other
persons with common needs.
S. 2 ( i) defines 'Registrar' as a
person appointed to perform the duties of a Registrar of cooperative societies under the Act. Under s. 6 ( 1) the State Government may appoint a person to be Registrar of Co-operati~
Societies for the State or any portion of it, and may appoint
persons to assist such Registrar. Under s. 6 sub-s. (2)(a) the
State Government may, by general or special order published in
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the official gazette, confer on any person appointed under
sub-s. ( 1) to assist the Registrar, all or any of the powers of the
Registrar under the Act except the powers under s. 26. Under
s. 13, the registration of a society makes it a body corporate by
the name under which it is registered, with perpetual succession
and a common seal and with power to acquire and hold property,
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to enter into contracts, to institute and defend suits and other
legal proceedings and to do all things necessary for the purposes
for which it is constituted.
Chapter V deals· with audit 1!111
inspection of societies. Under s. 33 the Registrar must audit or
cause to be audited ~y some ~rson authorised by him, the
accounts of every registered society once at least in every year.
Under sub-s. ( 4) of s. 33 the auditor has to submit a report inG
eluding therein inter alia every transaction which appears to him
to be contrary to law, the amount of any deficiency or loss which
Bf!nears to have been incurred by. the culnable negligence 8nd
misconduct of any person, the amount of anv sum which ought to
have been but has not been brought into account by anv oer~on
and an~ money .or orooertv belonlring to the society which has
bee!! m1saooroonated or fraudulently retained by any per•on
takml! nart_ in the ore;anisation or manal!ement of the sod~tv or
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bv anv oast or present officer of the societv or by any other person
S. 35 orovides for certain inquiries by the Registrar. s. 40 oro:
..
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SUPREME COUR,T .REPORTS
(1967] 3 S.C.R.
vides inter alia that where as a result of an audit under s. 33 or
an inquiry under s. 35 it appears to the Registrar that any person
who has taken part in the organisation or management of the
society or any past or present officer of the society has made any
payment which is contr!ll)' to law or by reason of his culpable
negligence or misconduct involved the society in any loss or deficiency, o~ failed to bring into account any sum which ought to
have been brought into account, or misappropriated or fraudulently retained any property of the society, he may inquire into
the conduct of such person and after giving such person an opportunity of being heard, make an order requiring him to contribute
such sum to the assets of the society. Sub-s. (3) of s. 40 provides for an appeal from the order of the Registrar to the State
Government on application made by the person or officer against
whom the order was passed.
S. 48 enumerates various kinds of
disputes touching the business of the registered society which
must be referred to the Registrar. Such disputes may be amongst
members, past members, persons claiming through members, past
members or deceased member and sureties of members, past
members or deceased members, or between the society and any
past or present officer, agent or servant of the society.
Under
sub-s. (2) the Registrar may on receipt of such reference-
( a) decide the dispute himself, or
(b) transfer it for disposal to any person exercising
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the powers of a Registrar in this behalf, or
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( c) subject to any rules, refer it for disposal to an
arbitrator or arbitrators.
Under sub-s. ( 3) the Registrar may withdraw any reference
transferred under cl. (b) of sub-s. (2) or referred under cl. (c)
of the said sub-section and deal with it in the manner provided
in the said sub-section. Under sub-s. ( 6) any person aggrieved
by any decision given in a dispute transferred or referred under
cl. (b) or (c) of sub-s. (2) may appeal to the Registrar. Sub-s.
( 7) gives the Registrar, in the case of dispute under this section,
the oower of review vested in a civil court under s. 114 and under
0. XLVII, r. 1 of the Code of Civil Procedure, 1908 as also
the inherent jurisdiction specified in s. 151 C.P.C. Sub-s. (8)
gives the Registrar the power to state a case and refer it to the
District Judge for decision whereupon the decision of the District
Judge is to be final. Under sub-s. (9) a decision of the Registrar
under this section and subject to the orders of the Registrar on
appeal or review, a decision given in a dispute transferred or
referred under cl. (b) or ( c) of sub-s. (2) is to be final.
S. 49
gives the Registrar power to summon and enforce the attendance
of witnesses and parties concerned and to examine them upon
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JUGAL KISHORE v. CO-OP. BANK (Mitter, J.)
1 fi9
oath and to compel the production of any books of account, doc?-
ments or property by the same means and so far as may be, m
the same manner as is provided in the case of a civil court under
the Code of Civil Procedure.
S. 50 authorises the Registrar in
certain ·cases to direct attachment of property of any person who
with intent to defeat or delay the execution of any order that may
be passed against him under s. 48 is about to dispose of the
whole or any part of his property or to remove any part of his
pmperty from the local limits of the jurisdiction of the Registrar.
S. 57 ( 1) provides that
" ( 1 ) Save in so far as expressly provided in this
Act, no civil or revenue court shall have any jurisdiction in respec~ of any matter concerned with the winding up or dissolution of a registered society under this
Act, or of any dispute required by section 48 a:> be
referred to the Registrar or of any proceedings, under
Chapter VII-A."
Chapter VII-A of the Act headed 'distraint' providet for recovery
of a debt or outstanding by distraining while in the possession of
the defaulter any crops or other products of the earth standing
or ungathered on the holding of the defaulter. The Chapter contains sections making elaborate provision for the sale of property
distrained.
S. 66 gives the State Government power to frame
rules for any registered society or a class of registered societies.
The latest rules are those framed in the year 1959. Rule 68 lays
down the procedure for adjudication of disputes under s. 48. It
provides for a reference to the Registrar in writing, on receipt
whereof the Registrar has to cause notiee of it to be served on
the opposite party requiring him to show cause within a specified
time. After a written statement is filed, the Registrar may decide
the dispute himself or transfer it to any person exercising the
powers of a Registrar in this behalf or to an arbitrator. There is
~!so a provision for substitution of the heirs or legal represental!ves of ~ party to the dispute who dies pending the adjudication.
The Registrar or the arbitrator is obliged to give a decision in
writing after considering the evidence adduced by the parties.
Before the Registrar or arbitrator, a party has a right to be represented by a legal practitioner.
In this case, the Assist~nt Registrar concerned, along with
sev~ral othe~ persons, was ~ven the power of the Registrar under
vanous sections of the Act mcluding s. 48 [excepting sub-ss. ( 6)
and ( 8)] by the State Government. He was not a nominee of the
Registrar.
.It will. ~e noted from the above that the jurisdiction of the
ordinary cml and revenue courts of the land is ousteel under s. 57
U Sup. CI/67-12
170
SUPREME COURT REPORTS
(1967] 3 S.C.R.
of the Act in case of disputes which fell under s. 48. A Registrar
exercising powers under s. 48 must therefore be held to discharge
the duties which would otherwise have fallen on the ordinary civil
and revenue courts of the land.
The Registrar has not merely
the trappings of a court but in many respects he is given the
same powers as are given to ordinary civil courts of the land by
the Code of Civil Procedure including the power to summon and
examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own
order and even exercise the inherent jurisdiction of courts
mentioned in s. 151 of the Code of Civil Procedure. In such
a case, there is no difficulty in holding that in adjudicating upon
a dispute referred under s. 48 of the Act, the Registrar is to all
intents and purposes, a court discharging the same functions and
duties in the same manner as a court of law is expected to do.
According to Halsbury's Laws of England (Third EditionVol. 9) at p. 342:
"Originally the term "court" meant, among other
meanings, the Sovereign's palace; it has acquired the
meaning of the place where justice is administered and,
further, has come to mean the persons who exercise .iudicial functions unde.r authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not courts, in the sense in which the term is here
employed, namely ·to denote such tribunals as exercise
jurisdiction over persons by reason of the sanction of the
law, and not merely by reason of voluntary submission
to their jurisdiction."
Again,
"The question is whether the tribunal is a court, not
whether it is a court of justice, for there are courts
which are not courts of justice. In determining whether
a tribunal is a judicial body the facts that it has been
appointed by a non-judicial authority, that it had no
power to administer. an oath, that the chairman has a
casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it
up prescribes a penalty for making false statements;
elements to be considered are (I ) the requirement for
a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that a member
of the tribunal shall not take part in any decision in
which he is personally interested, or unless he has been
present throughout the proceedings."
It is not necessary to exam,ine the question at any great length,
because of certain authoritative pronouncements of this Court.
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JUGAL KISHORE v. CO-OP. BANK (Mitter, J.)
171
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In Brajnandan Sinha y. Jyoti Narain(') the question was,
whether a commissioner appointed under the Public Servants
(Inquiries) Act, 1850 was a court within the meaning of the
Conrempt of Courts Act, 1952. There, after referring to authorities like Coke on Little~on and Stroud and Stephen, the Privy
Council decision in Shell Co. of Australia v. Federal Commise
sioner of Taxation( 2) and the earlier decisions in Bharat Bank
Limited v. Employees of Bharat Bank Ltd.(8 ), Maqbool Hussah
v. The State of Bombay(') and Cooper v. Wilson(•) it was
observed:
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"It is clear, therefore, that in order to constitute a
court in the strict sense of the term, an essential condition is that the court should have, apart from having
. some of the trappings of a judicial tribunal, power to
give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of
a judicial pronouncement."
Reference was there made to the dictum of Griffith, C.J. in
Hudd11rt, Parker & Co. v. Moorehead(•) where he said :
"I am of opinion that the words 'judicial power' as
used in section 71 of the Constitution mean the powers
which every sovereign authority must of necessity have
to decide controversies between its subjects, or between
itself and its subjects, whether the rights relate to life,
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liberty or P.roperty. The exercise of this power does not
begin until some tribunal which has power to ~ive a
binding and authoritative decision (whether subiect to
appeal or not) is called upon to take action."
Reference may also be made to the decision of this Court in
Shri Virindar Kumar Satyawadi v. The State of Punjab(7). There
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the question was, whether a returning officer acting under ss 33
~nd 36 of the ~~presentation of the People Act, 1951 and d~id
mg on the validity or otherwise of a nomination paper was not
a court within the meaning of ~s. 195(1)(b) 476 and 476-B of
the. Code of . Cri~inal Procedure. Here,
t~o, the authorities
wh.1ch were c1.ted m the case ofBrajnandan Sinha's case(') were
G
reviewed and 1t was said :
"It may be stated broadly that what distinguishes a
c~urt from a quasi-judicial tribunal is that it is charged
w1tl! a duty to. decide disputes in a judicial manner and
declare~ th~ r1g~ts. ~f parties in a definitive judgment.
-~_decide ~a Jl1d1c1al manner involves that the parties
ff
(1) [195$] 2 S.CR. 955,
(2) [1931] A.C. 275,
(3) !1951') s C.R. 4S9.
(4) [1963] s.c.R. 730.
(5) (1937) 2 K.B. 3 9, 34 .
(6) [1909] 8 C.L.R. 330, 357.
(7) [1955] 2 S.C.R. !013 at 1018,
172
SUPREME COURT REPORTS
[1967] 3 S.C.R.
are entitled as a matter of right to be heard in support of
their claim and to adduce evidence in proof of it. And
it also imports an obligation on tlle part of the autllority
to decide the matter on a consideration of the evidence
adduced and in accordance with Jaw. When a question
therefore arises as to whetller an autllority created by
an Act is a court as distinguished from a quasi-judicial
tribunal, what has to be decided is whetller having
regard to tlle provisions of the Act it possesses all the
attributes of a court."
This Court tllen went on to consider whetller tlle functions and
powers entrusted to the returning officer under tlle Act made him
a court.. It was noted tllat under s. 36(2) of tlle Act, the returning officer has to examine tlle nomination paper and decide all ·
objections which may be made thereto.
It was noted tllat tlle
power was undoubtedly judicial in character but the parties had
no right to insist on producing evidence which tlley might desire
to adduce in support of tlleir case and tllere was no machinery
provided for the summoning ·Of witnesses, or of compelling production of documents and the ret¥ming officer was entitled to act
ruo motu in tl)e matter.
The Court further remarked tllat in a
proceeding urider s. 36 there was no Us in which persons with
opposing claims were entitled to have tlleir rights adjudicated in
a judicial manner but the enquiry was such as was usually conducted by an ad hoc tribunal entrusted with a quasi-judicial pawer.
Consequently it was held that the returning officer decidmg on
the validity of a nomination paper was not a court for tlle purpose
of s. 195 ( 1 )(b) Cr.P.C. with the result that even as regards the
charge under s. 193, the order of the Magistrate was not appealable as the offence was not committed in or in relation to any
proceedings in a court.
It will not be out of place to recapitulate what was said in
Cooper v. Wilson(')and referred to in Brajnandan Sinha's case( 2).
The passage runs tllus :
"A true judicial decision presupposes an existing
dispute between two or more parties, and then involves
four requisites :- (1) The presentation (not necessarily orally) of tlleir case by tlle parties to the dispute;
(2) if the dispute between them is a question of fact.
the ascertainment of the fact by means of evidence
adduced by the parties to the dispute and often with the
assistance of argument by or on behalf of the par_ties
on the evidence; (3) if the dispute between them 1s a
question of law, the submission of legal arguments by
(i).{1937] :i K.B. 309.
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(2) [1955] 2 S.C.R. 955.
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JUGAL KISHORE v. CO-OP. BANK (Mitter, J.)
the parties; and ( 4) a decision which disposes of the
whole matter by a finding upon the facts in dispute and
an application of the law of the land to the facts so
found, including where required a ruling upon any disputed question of law."
173
In our opinion, all the above requisites 11re to be found in this
case.
The question before the Assistant Registrar was whether
the appellant and Jagannath Jha had caused loss to the bank and
whether they were liable to compensate the bank for it.
This
arose out of audit proceedings.
There was a written reference
to the Registrar. There was a dispute between the bank on the
one hand and the appellant and Jagannath Jha on the other to
be decided with the assistance of arguments and on the evidence
adduced.
The dispute was a question of law dependent on the
facts of the case and the decision disposed of the whole matter
by finding the appellant liable for the entire amount. As we have
already remarked, the Assistant Registrar had almost all the
powers which an ordinary civil court of the land would have, of
summoning witnesses, compelling production of documents,
examining witnesses on oath and coming to a conclusion on the
evidence adduced and the arguments submitted.
Under sub-r.
(10) of r. 68 the parties could be represented by legal practitioners. The result is the same as if a decree was pronounced by
a court of law. The adjudication of the Assistant Registrar was
not based upon a private reference nor was his decision arrived
at in a summary manner, but with all the paraphamalia of a
court and the powers of an ordinary civil court of the land,
We were however referred to decisions of certain High Courts
in support of the contention that the Assistant Registrar was not
a court for the purposes of the Contempt of Courts Act. The
latest of these decisions is that of the Bombay High Court in
Malabar Hill ,Co-_operative Housing\Society v. · K. L. Gauba(I).
There an applicalion was made by the society against one K. L.
Gauba for the al!eged contempt .committed by him on the third
opponent, a nmrunee '!f the Registrar, appointed under s. 54 of
the Bombay Co-operative Societies Act, 1925. The facts of the
cas: were as follows.
Gauba and his wife were members of the
~oc1ety an~ a~ the m~terial time were r,esiding in two flats in one
of the society s premises. The terms and conditions on which a
flat was allotted to the wife were that an initial oayment of
Rs:. 6,?0l had to be .made towards the qualifying shares of the
souet} and membersh10 fees and thereafter a payment of Rs. 580
per month.
Mrs. Gauba made the initial payment but failed to
rend~r ~he monthly oayments thereafter.
The society made an
apphcalion under s. 54 of the Act to the Registrar of Co-operative
(1> A.1.R. 1964 B1m. 147atIS2.
174
SUPREME COURT REPORTS
[1967] 3 S.C:R.
Societies relating to the dispute arising out of Mrs. Gauba's failure
to make the monetary payments. !he dispute was referred to
his nominee by the Registrar and the nominee made an award
directing Mrs. Gauba to pay a sum of Rs. 49,492-15 to the
society.
Being unable to recover the money, the Society made
another application to the Registrar under s. 54 of the Act praying for a direction for eviction of Mrs. Gauba from the flat in her
occupation. The Registrar, in exercise of his powers under s. 54
referred this dispute to his nominee Mr. C. P. Patel (the third
opponent to the petition before the High Court), This case was
numbered as Arbitration Case of 1961. In this arbitration case,
Gauba appeared on behalf of his wife as her agent. It appears
that Mrs. Gauba could not be served for some time and the case
had to be adjourned on certain occasions.
After a number of
adjournments, when the matter was taken up on February 15,
1962, Gauba is alleged to have abused Mr. Patel calling him
"dishonest" and "a cheat".
Mr. Gauba contended before the
High Court that on the date on which he was said to have uttered
the abuses Mr. Patel, in law, had ceased to function as a nominee
of the Registrar, that the. proceedings before Mr. Patel were in
the nature of arbitration proceedings, that Mr. Patel was not a
court within the meaning of the Contempt of Courts Act and
lastly, even if he was a court, he was not a court subordinate to
. the Bombay High Court under sub-s. (2) of s. 3-of the Contempt
of Courts Act, the alleged contempt being an ex facie contempt
amounting to an offence under s. 228 I.P .C.
On the question
as to whether Mr. Patel was functioning as a court, the Bombay
High Court came to the. conclusion that the tests laid down by
this Court in Brajnandan Sinha's case(') had not been satisfied.
According to the learned Judges, the Registrar's nominee although possessing certain trappings of a court, had no independent
seisin over the case and the power exercised by him was that of
an arbitrator enabling him to make an award.
Such an award
would not be equated wit'1 a judgment or a decision given by a
Court.
The learned Judges relied strongly on the fact that the
Registrar had power to withdraw the dispute from his nominee
and that the latter was in duty bound to decide the dispute within
two months. AlJ this, in the opinion of the learned Judges, went
io establish that the oroceedine:s were those in arbitration and
not before a court.
Aft~r referring to Brajnandan Sinha's case(')
and to Shell Co. of Australia v. Federal Commissioner of
Taxation(') the learned Judges concluded their judgment on thi&
point observing :
"Thus apart from the fact that the statute refers to
the decision of a nominee as an award in express terms,
(I} [1955] 2 S.C.R. 955,
(2) [1931] A.C. 275.
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JUGAL KISHORE v. CO-OP. BANK (Mitter, J.)
and a reference to him is a reference for his arbitration,
the provision of the Act relating to the appointment of
a nominee itself indicates that the power, which a
nominee derives for deciding the dispute, is not a power
derived by him from the State."
17 &
The next decision referred to us was that of a single Judge
of the Allahabad High Court in Raja Himanshu Dhar Singh v.
Kunwar B. P. Sinha('). In this case a dispute arising out of
certain resolutions passed by the Hind Provincial Flying Club
were referred to the Regisfrar of Co-operative Societies under the
provisions of the Co-operative Societies Act of Uttar Pradesh and
the Registrar delegated his powers to the Assistant Registrar to
arbitrate in the matter. The Assistant Registrar issued an injunction that no further meeting should be called and this direction
was flouted and disobeyed. The learned Judge came to the conclusion that "only those arbitrators can be deemed to be courts
who are appointed through a court and not those arbitrators who
function without the intervention of a court."
In our opinion, neither of these decisions lays down any
reasoning which would compel us to hold that the Assistant
Registrar of Co-operative Societies in this case was not a court.
In the Bombay case, the matter was referred to the Assistant
Registrar as a nominee who had to act· as an arbitrator and make
an award. So also in the Allahabad case, the Assistant Registrar
merely acted as an arbitrator. In the case before us, the Assistant
Registrar was discharging the functions of the Registrar under s.
6(2) of the Act under the authority of the State Government
deleg<1ting the powers of the Registrar to him.
It was sought to be argued that a reference of a dispute had
to be filed before the Registrar and under sub-s. 2 (b) of s. 48
the Registrar transferred it for disposal to the Assistant Registrar
and therefore his position was the same as that of a nominee under
the Bombay Co-operative Societies. Act.
We do not think that
that contention is sound merely because sub-s. (2)(c) of s. 48
authorises. the Registr~r to refer a dispute for disposal of an arbitrator or arbitrators. This procedure was however not adopted in this
case and we need not pause to consider what would have been the
effect if the matter had been so transferred. The Assistant Registrar had all the powers of a Registrar in this case as noted in the
delegation and he was competent to dispose of it in the same
manner as the Registrar would have done.
It is interesting to
note that under r. 68 sub-r. (10) of the Bihar and . Orissa Cooperative Societies Rules, 1959 :
"In proceedings before the Registrar or arbitrator
__ a_party may be represented by a legal practitioner."
(I) [196ljAll. L. J. S7.----
17.6
SUPREME COURT REPORTS
[1967] 3 S.C.R.
In conclusion, therefore, we must hold that the Assistant Registrar was functioning as a court in deciding the dispute between
the bank and the appellant and 1 agannath Jha.
Then comes the question as to whether the Assistant Registrar was a court subordinate to the High Court. The foundation
of the contention of the learned counsel for the appellant is provided by the difference in the wording of Arts. 227 and 228 of
the Constitution. Under sub-s. ( 1) of s. 3 of the Contempt of
Courts Act, 1952 every High Court shall have and exercise the
same jurisdiction, powers and authority, in accordance with the
same procedure and practice, in respect of contempts of courts
subordinate to it as it has and exercises in respect of contempts
of itself.
Sub-s. (2) lays down that the High Court shall not
take cognizance of a contempt alleged to have been committed
in respect of a court subordinate to it where such contempt is
an offence punishable under the Indian Penal Code .. Under Art.
227 every High Court shall have superintendence over all courts
and tribunals throughout the territories in relation to which it
exercises jurisdiction.
Under Art. 228 if the High Court is
satisfied that a cause pending in a court subordinate to it involves
a substantial question of law as to the interpretation of the Constitution the determinati.on of which is necessary for the disposal
of the case, it shall withdraw the case and may either dispose of
the case itself or determine the said question of law and · foturn
the case to the court from which the case has been so withdrawn.
On the basis of the difference in language between these two
Articles it was contended that the legislature in passing the Contempt of Courts Act in 1952 must be taken to have contemplated
the cognizance of contempts of such courts only as would be
covered by Art. 228 and not Art. 227. This has given rise to
considerable judicial conflict as we shall presently note.
In
Sukhdeo v. Brij Bhushan(') the question was whether the Panchayati Adalats constituted under the U.P. Panchayat Raj Act,
194 7 were courts within the meaning of the Contempt of Courts
Act. After an exhaustive analysis of the power of superintendence of the High Courts under successive Government of Inoia
Acts 1915, 193.S and the Constitution, a Division Bench of the
• Allahabad High Court held that that court, after the Constitution.
had the same power of superintendence which it had after the
passing of the Government of India Act, 1935 and that "in
exercis.e of it it can check the assumotion or excess of jurisdiction
bv Pancl1avati Adalats or compel them to exercise their jurisdiction and do their dutv and they were therefore, judicially subordinate to the Allahabad Hil!h Court."
In re Annamalai(') the
question was whether a civil revision petition against an order in
(I) A.1.R. 1951AU.667.
(2) A.T.R. 1953 Mad. 362.
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JUGAL KISHORE v. CO-OP. BANK (Mitter,!.)
177
the nature of an award passed by the Deputy Registrar of Cooperative Societies was entertainable by the High Court acting
under Art. 227 of the Constitution and there after examining a
number of authorities, a single Judge of the Madras Higl1 Court
concluded that the High Court had revisional jurisdiction under
A rt. 227 by way of superintendence over the judicial work of a
duly constituted . tribunal like the Deputy Registrar under the
Co-operative Societies Act.
Of course, the question the court
was immediately concerned with there was the scope of the power
of superintendence, and it was observed that :
"Superintendence includes power to guide, and
encourage Judges of the subordinate Courts, to direct
subordinate courts and tribunals to carry out its orders;
and to direct enquiry with a view to take disciplinary
action for flagrant mal-administration of justice."
It was not necessary for the purpose of that case to take note of
the difference, if any, between the words 'superintendence' and
'subordination'. In Kapur Singh v.