Contempt of court?
P. Venu
(Querist) 04 June 2013
This query is : Resolved
I am a public servant. My department, though an insignificant institution, has been vigorous litigant. The subject-matter of the litigation is of far-reaching impact. During 1997-2002 I had studied the subject matter with reference to the public records and had found that the Department has been pursuing misconceptions and that it has not been a responsible or honest litigant. I had apprised the authorities at all levels of the material facts. Subsequently I had come across much more starker aspects. These have been brought to the notice of the authorities. I have also published some articles highlighting the issues:
-"Wilful distortion denies to salt pan owners justice” (http://www. indiatogether.org/2008/apr/hrt-saltpan.htm);
- Contentious Rule, Incredible Verdict” (Journal of Indian Law and Society, Volume 1, 2009); (http://jils.ac.in/wp-content/uploads/2011/12/p-venu.pdf)
- “Experiments with Falsehood” (http://www.lawyersclub india.com/articles/Experiments-with-Falsehood-2047.asp).
- "Once Landholders, now Leaseholders" (http://www.lawyersclubindia.com/articles/Once-Landholders-now-Leaseholders-4832.asp#.Ua2LltIzNv8)
Some time back, some among the defendants in a suit filed by the Department had sought my assistance in placing the material facts before the Court. Hence I had filed the following petition.
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IN THE COURT OF CIVIL JUDGE SENIOR DIVISION AT PANVEL-DISTRICT – RAIGAD
Misc. Petition No. of 2011
IN
Special Civil Suit No. 84/2009
P.Venu,
Assistant Salt Commissioner,
Assistant Salt Commissioner’s Bungalow,
2-1-44/45, Madhav Nagar, Pithapuram Road,
Kakinada 533 003, Andhra Pradesh …. Petitioner
Vs.
1 The Union of India through
The Deputy Salt Commissioner,
Exchange Building, 4th Floor,
Ballard Estate, Mumbai. …. Respondent/Plaintiff
2. Ashaben Prakash Parekh
& Others …. Respondents/Defendants
Petition under Order 1, Rule 8A read with Section 151 of the Civil Procedure Code
For the reasons stated in the accompanying affidavit, the petitioner prays that this Hon’ble Court may be pleased to permit this petitioner to implead himself in the above mentioned Special Civil Suit No. 84/2009 in public interest and to allow this petitioner to present his opinion and to take part in the proceedings in accordance with law.
Dated at Kakinada on 8th December, 2011.
Petitioner
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IN THE COURT OF CIVIL JUDGE SENIOR DIVISION AT PANVEL-DISTRICT – RAIGAD
Misc. Petition No. of 2011
IN
Special Civil Suit No. 84/2009
P.Venu,
Assistant Salt Commissioner,
Assistant Salt Commissioner’s Bungalow,
2-1-44/45, Madhav Nagar, Pithapuram Road,
Kakinada 533 003, Andhra Pradesh …. Petitioner
Vs.
1 The Union of India through
The Deputy Salt Commissioner,
Exchange Building, 4th Floor,
Ballard Estate, Mumbai. …. Respondent/Plaintiff
2. Ashaben Prakash Parekh
& Others …. Respondents/Defendants
AFFIDAVIT OF P.VENU, ASSISTANT SALT COMMISSIONER IN HIS PERSONAL CAPACITY
I, P.Venu, aged 58 years, S/o Late ShriN.Parameswaran Pillai, working as Assistant Salt Commissioner in the Office of the Assistant Salt Commissioner, 2-1-44/45, Madhav Nagar do hereby solemnly affirm and sincerely state as follows:-
1. I am to submit that Shri Ganesh Janardhan Tahkur and 40 others, who are among the defendants in the above mentioned Special Civil Suit No. 84/2009,have addressed me a request seeking my assistance in placing the real facts before this Hon’ble Court. They have informed that they all are having salt pans in the suit property known as Ganesh Prasad Salt Works and these pans are belonging to their forefathers. They have stated that they have been producing salt in these salt works for the last 150 yearsand their livelihood depends on this business only. They have also informed that they are very poor and they do not have the sufficient means to plead against the Government. Hence they had sought my assistance in placing the real facts before the Hon’ble Court.
2. I had been closely associated with and well informed of subject matter of this Special CivilSuit. During the period 1998-2002, while posted in the Office of the Deputy Salt Commissioner, Mumbai, I had been in-charge of the team entrusted with the task of identifying and collecting documents and records relevant to the subject matter of the above mentioned Special Civil Suit and related matters, available with the Salt Department as well as the Department of Archives, Government of Maharashtra. The team had undertaken a systematic search of the records of the State Archives and had collected almost the complete information relating to the controversy commencing from the establishment of British Rule in the erstwhile Bombay Presidency. Copies of these documents have been obtained and kept in compilations numbering more than five hundred.
3. I have carefully gone through the plaint filed on behalf of the Plaintiff. It is stated that the averments therein are misconceived, being either errors of fact or errors of law or errors in fact as well in law. It is respectfully submitted that all errors in fact and errors in law are questions of law. A judicious decision in the present civil suit involves findings on the following among other questions of law:
(a) The defendants and their predecessors in title have been occupying the suit property for the past 150 years. They have been the first occupants of the res nullius. They have perfected their rights as shilotries who reclaimed the land, constructed the salt works and have kept it in good repair since then. Whether, the defendants are not the occupants of the suit land, as defined under the Bombay Land Revenue Code, 1879 and Maharashtra Land Revenue Code, 1966?
(b) The licence for manufacture of salt under the Bombay Salt Acts of 1873 & 1890 had been granted to the predecessors in title of the defendants in their capacity as proprietors of the private salt work. Whether, the licence granted under the said Acts do not constitute good and valid title for the ownership rights of the defendants?
(c) Section 37 of the Bombay Land Revenue Code provides only those lands which are not the property of private persons to be the property of the Government. Whether, the suit land belongs to the Government, notwithstanding the property rights of the defendants and their predecessors in title?
(d) The defendants and their predecessors have been the proprietors in occupation of the suit property for the past 150 years. Whether, the institution of the present suit is permissible by the Law of Limitation?
(e) The Bombay Salt Act of 1890 had been repealed by the Central Excise & Salt Act 1944. Licensing of salt manufacture had continued under the Central Excise Rules notified under Section 37 of the latter Act. The said rules relating to salt had become defunct because of the abolition of duty on salt with effect from 1/4/1947. Whether, continuation of the licensing system thereafter and periodical renewal and imposing of conditions through licence were legally permissible?
(f) Production and sale of salt is a normal and benign business and not a res extra commercium. Whether, the plaintiff has been competent, ever since the abolition of duty of salt, to regulate and impose restrictions on the Right to Freedom and Right to Life and Livelihood of the defendants and their predecessors in title, in the absence of any valid powers vested by law? Whether, it will not be repugnant to the Scheme of the Constitution and its command to impose regulations and restrictions on Right to Freedom and Right to Life and Livelihood of citizens not through valid laws but by private agreements?
(g) Admittedly, salt manufacture had been delicensed. Whether, is it not a defiance of the will of the Legislature for the Executive to introduce indirect licensing through backdoor by compellingsalt cultivators to enter into lease with the Government?
(h) The suit property has been in occupation of the defendants and their predecessors in title much prior to the introduction of the licensing system under Bombay Salt Act, 1873. Whether, the averment that the defendants have the right to manufacture, remove and the sale of salt in the suit property because of the licence granted by plaintiff does not amount to willful misrepresentation?
(i) The Archival records and the records of the Salt Department show that ground rent has been a levy, as a special contract in terms of Section 45 of the Bombay Land Revenue Code, in lieu of land revenue assessment. The salt officers have been collecting this levy as a matter of convenience for being credited to the accounts of the Land Revenue Department. The salt work lands under this system of revenue realization have recorded as Mithagar to distinguish this special arrangement. These lands revert to ordinary survey tenure on the cessation of the lands being used for salt cultivation. Whether, in light of the above information, the averments that Revenue Records do not show any assessment against the suit land and thatthe defendants have been paying ground rent to the Salt Department in recognition of its ownership, do not amount to willful misrepresentation?
(j) Archival records inform that the term‘private salt work’ was inclusively defined in Bombay Salt Act, 1890 as ‘the salt work not solely owned or not solely worked by the Government’ as a legal fiction or device so that relevant provisions of the Act could be extended to the Government salt works worked by lessees. Whether, the denial of title of the defendants on the basis of the legal fiction provided in a law repealed in 1944, amount to willful misrepresentation?
(k) Order No.1733-B, Rules for disposing of the Application for permission to open new Salt Works,had been notified as executive instructions having no force of law. Only the salt works at Bhandup and one salt work at Mira were opened under the said Rules on the lands acquired by the Salt Department. Whether, the averment that said rules were notified under Bombay Salt Act of 1890 do not amount to willful misrepresentation?
(l) Whether, it is in public interest for the State to institute civil action against its citizens advancing pleadings contrary its knowledge in disregard to public policy, in particular the National Litigation Policy, and recanting the scheme of the Constitution and its commands?
4. It is respectfully submitted that findings on the questions of law as above are of far reaching consequences as there are a large number of litigation of similar nature pending before different courts. The Hon’ble Court would be better placed to render justice if all the relevant information is made available to it in the proper perspective.
5. Under these circumstances, I pray that the Hon’ble Court may kindly pleased to allow me submit before it the best evidence in the subject matter of the case and to render justice.
Solemnly affirmed at Kakinada on the 8thday December, 2011 and signed his name in my presence.
Before me
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The court is yet to decide the Petition. Yesterday, I have been served a charge-sheet, inter alia, alleging that filing of the Petition amounts to misconduct.
Does this action amount to Contempt of Court? Can I initiate appropriate action in the Court?
Anirudh
(Expert) 04 June 2013
Being a public servant, you have no business whatsoever to file the affidavit at the behest of the plaintiffs, especially when they are pitted against your own department.
Undoubtedly your activities are unbecoming of a Govt. servant and you have been rightly served with a show cause notice.
What contempt of court you are talking about? There is no order passed by the Court which has been violated by the Department. Therefore there is no contempt at all in issuing a show cause notice to you for your uncalled for activities.
If you are so public spirited, then you ought to have quit your job and then taken up sides with the plaintiffs. While being in the govt., you cannot do what you have done.
V R SHROFF
(Expert) 04 June 2013
Q:Filing of the Petition amounts to misconduct.
Does this action amount to Contempt of Court? Can I initiate any action in the Court?
Ans: Nobody talking abt contempt of court, as there is no court order.
You acted ultra-vires, so it is misconduct.
R.K Nanda
(Expert) 04 June 2013
consult local lawyer.
P. Venu
(Querist) 04 June 2013
I am grateful for the opinions. However, the fact remains that a public servant is the trustee of public good and the essentials of service jurisprudence do not require him to be a willing partner to any activity which is contrary to the discipline of the Constitution or to be an enemy of the innocent citizens. Every public servant is under oath of allegiance to the Constitution and he has the duty coupled with obligation not to succumb to departmental biases which compromises the basic dictum of the interest of a welfare state being synonymous with that of the citizens.
No public institution can claim the right or the power to trick the courts through false pleadings and pollute the streams of justice. I am at loss to understand how dissociating from such acts, which are disobedience as well a crime, through lawful process could be termed as an act which is unbecoming of a public servant.
On the contrary, the allegation of misconduct and the resultant disciplinary proceedings, in my opinion, entails "criminal misconduct" as defined under Section 2(c) of the Contempt of Courts Act 1971 as the disciplinary proceedings -
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court ; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner ;
Anirudh
(Expert) 05 June 2013
If you were the public servant handling the case against the department, and if you were the one who was or under whose direction the reply to the petition/suit was being filed, you could have taken such a stand.
But, when you were no where in the picture, going and helping and aiding the litigant who is opposed to the department in which you serve, is not permissible, while you continue to be a public servant.
Whatever answers that you have to the SCN please give. I am sure you will. But your main query whether there is any contempt of court in the issuance of SCN - surely my answer is an emphatic NO.
Raj Kumar Makkad
(Expert) 15 June 2013
You have perfectly been advised by the experts.
R.K Nanda
(Expert) 18 September 2013
nothing more to add.
