Wednesday 20 March 2013

Whether Contempt power is attracted in case of disobedience of administrative orders of charity commissioner?


It cannot be disputed that the Apex Court has held
that   the   Assistant   Charity   Commissioner   appointed   under
Section 5 of the Bombay Public Trusts Act is a ‘Court’ for
:the purposes of the Contempt of Courts Act.  The question is
while   exercising   jurisdiction   under   Section   41A   of   the
Bombay   Public   Trusts   Act,   whether   the   Charity
Commissioner   acts   as   a   ‘Court’   and   exercises   judicial   or
quasi judicial power.  This Court has already taken a view in
the case of Damodar v. Dy. Charity Commissioner, reported
in  2011(6)   Mh.L.J.   431,   and  Vanmala  v.  Dy.   Charity
Commissioner,   reported   in  2012(3)   Mh.L.J.   594,   that   the
power conferred by Section 41A of the Bombay Public Trusts
Act  is   purely   an   administrative   power   and  it  is   neither   a judicial or quasi judicial power. Hence, in such proceedings,
the Charity Commissioner does not act as a  ‘Court’ within
the meaning of the Contempt of Courts Act.  The provision of
Section 2(b) of the Contempt of Courts Act is not attracted.:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CONTEMPT PETITION NO.227 OF 2012

 Budhasao Sitaramsao Dhenge, V.G. Katgaye,

Coram : R.K. Deshpande, J.
Citation;2013(2) MH L J 220


1. The  complaint  in this   contempt   petition  is   about
willful   disobedience/breach   of  the   orders   dated   28­5­2012
and   4­6­2012   passed   by   the   learned   Joint   Charity
Commissioner,   Nagpur,   below   Exhibits   20   and   31
respectively in exercise of his jurisdiction under Section 41A
of the Bombay Public Trusts Act, 1950 in the proceedings,
i.e. Application No.3 of 2010.  
2. Assuming   that   there   is   non­compliance   or
disobedience   of   such   order,   the   question   is   whether   the
provision   of  Section   2(b)  of the  Contempt   of Courts  Act,
1971   is   attracted   or   not.   The   reliance   is   placed   by   Shri
Chandurkar, the learned counsel for the petitioners, upon the
decision of the Apex Court in the case of  K. Shamrao and

others  v.  Assistant   Charity   Commissioner,   reported   in
(2003) 3 SCC 563.   He has urged that the Apex Court has
held   that   the   Assistant   Charity   Commissioner   appointed
under Section 5 of the Bombay Public Trusts Act, 1950 is a
‘Court’ for the purposes of the Contempt of Courts Act.  He
further submits that Section 2(b) of the Contempt of Courts
Act does not make any distinction between the orders passed
in   exercise   of   administrative   power   and   judicial   or   quasi
judicial power.  Hence, the provision of Section 2(b) of the
Contempt of Courts Act is attracted.
3. The provision of Section 2(b) of the Contempt of
Courts Act being relevant, is reproduced below :
“2(b).  “civil contempt” means wilful disobedience
to any judgment, decree, direction, order, writ or
other  process  of  a Court   or wilful  breach   of  an

undertaking given to a Court.”
It is obvious from the aforesaid provision that it is only the
judgment, decree, direction, order, writ or other process of
the Court or willful breach of the undertaking given to the
Court, which attracts civil contempt.  Necessarily, therefore,
it is the  direction  or the  order  passed in  quasi judicial  or
judicial  proceedings  by a  ‘Court’, which would attract the
definition of ‘civil contempt’ under the Contempt of Courts
Act.    It is not the direction  or  order  passed in exercise of
administrative power, which is contemplated by Section 2(b)
of the Contempt of Courts Act.
4. It cannot be disputed that the Apex Court has held
that   the   Assistant   Charity   Commissioner   appointed   under
Section 5 of the Bombay Public Trusts Act is a ‘Court’ for

the purposes of the Contempt of Courts Act.  The question is
while   exercising   jurisdiction   under   Section   41A   of   the
Bombay   Public   Trusts   Act,   whether   the   Charity
Commissioner   acts   as   a   ‘Court’   and   exercises   judicial   or
quasi judicial power.  This Court has already taken a view in
the case of Damodar v. Dy. Charity Commissioner, reported
in  2011(6)   Mh.L.J.   431,   and  Vanmala  v.  Dy.   Charity
Commissioner,   reported   in  2012(3)   Mh.L.J.   594,   that   the
power conferred by Section 41A of the Bombay Public Trusts
Act  is   purely   an   administrative   power   and  it  is   neither   a
judicial or quasi judicial power. Hence, in such proceedings,
the Charity Commissioner does not act as a  ‘Court’ within
the meaning of the Contempt of Courts Act.  The provision of
Section 2(b) of the Contempt of Courts Act is not attracted.

5. In   view   of   above,   the   contempt   petition   is
dismissed. 



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