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Contempt Jurisdiction is Always Discretionary, Should be Exercised Sparingly: Supreme Court

Team SoOLEGAL 18 Dec 2021 1:14pm

Contempt Jurisdiction is Always Discretionary, Should be Exercised Sparingly: Supreme Court

NEW DELHI: Noting that the contempt jurisdiction is always discretionary and should be exercised sparingly and with caution, the Supreme Court ruled that the Sri Maa Kamakhya Temple Management case is not a fit case to exercise the said Jurisdiction by punishing the members of the Kamakhya Debutter Board or ordering the return of temple funds allegedly misappropriated by the board.

On July 07th, 2015, the Supreme Court upheld the 2011 Guwahati High Court decision to restore the administration of the temple to the Bordeuri Samaj, which consisted of five main families of priests who had run the temple since time immemorial until 1998, when the Kamakhya Debutter Board was formed and took control of the Shrine. The Bordeuri Samaj filed the contempt lawsuit in response to the non – compliance with the Court’s July 07th, 2015 ruling.

The bench of Justices Ajay Rastogi and A.S. Oka was delivering the judgment on the petition under Article 129 of the Constitution read with the contempt of Courts Act, 1971 for initiating action against the respondents for violating the directions contained in this Court’s judgment dated July 07th, 2016 in Riju Prasad Sharma and Others V. State of Assam and others.

The subject at hand in the aforementioned judgment is Sri Maa Kamakhya Devalaya. The petitioner is the elected Dolois representing members of the Bordeuri Samaj of Kamakhya Devalaya, according to the case stated in the contempt petitions. According to the petitioner, the right of Bordeuri Samaj to oversee religious issues of Kamakhya Temple has been recognized from the beginning of time. Bordeuri Samaj is made up of five families, and the Dolois (head priest) is chosen from among the members of the five families. It is stated that the respondent’s nos. 1 to 4 constituted a self – styled entity under the name and style of Kamakhya Debutter Board (‘Debutter Board’) in 1998, and that they have illegally seized the power that has historically been vested in the office of Dolois.

The claimed breach in these contempt petitions is of the directive contained in the aforementioned Supreme Court Judgment dated July 07th, 2015, which reads as follows:
“73. Since the Debutter Board is occupying some part of the premises in the temple of Sri Maa Kamakhya Temple on account of interim orders of this Court, all those interim orders are now vacated. The District Administration is directed to ensure that those premises are vacated by the members or representatives of the Debutter Board at the earliest and in any case within four weeks. The premises and other properties of Sri Maa Kamakhya Temple shall, if required, be placed back within the same time in possession of the Bordeories Samaj through the last elected Dolois against receipts which shall be retained in the Office of Deputy Commissioner, Guwahati. The parties representing the Debutter Board are also directed to hand over the vacant and peaceful possession of the premises concerned and other properties of the temple, if any, within four weeks. There shall be no order as to costs.”

The bench notes that the primary grievance in the contempt petitions is that the respondent nos. 1 to 5 have not turned over control of the immovable properties, which are the two buildings indicated in paragraph 2(t) of the contempt petition, to Bordeuri Samaj. The petitioner’s second issue is that the temple’s numerous moveable possessions, as mentioned in the representation dated August 3rd, 2015, have not been turned over to him. The third complaint is that, despite the fact that, according to the statement of accounts provided on behalf of the Debutter Board, it had a surplus cash amount of not less that Rs. 11 crores that belonged to the Deity, it was not paid. Finally, a complaint is made that the petitioner has not been given access to the Temple’s accounting books.

“Initially, notice of these petitions was issued only to the respondent no. 5 – Deputy Commissioner. Thereafter, notice was also issued to the respondent nos. 1 to 4 as well. In the order dated April 18th, 2016 passed in these contempt petitions, this Court recorded undertaking of the respondent nos. 1 to 3 that they will furnish whatever remaining details relating to their bank accounts and the funds available in their accounts. The undertaking was recorded without prejudice to the stand of the said respondents that certain accounts are not connected with Kamakhya Devalaya. Further order dated July 04th, 2016 passed by this Court records that the respondent no. 5 stated that an inquiry is being held to find out all the details. This Court directed the respondent nos. 1 to 4 to file copies of the consolidated accounts, if not filed earlier, as well as copies of the consolidated accounts, if not filed earlier, as well as copies of the entries for the relevant period in the pass books of all the bank accounts. By the order of this court dated August 16th, 2017, the State of Assam was ordered to be made a party to the petition. The State Government filed an affidavit in terms of the order of this court dated August 06th, 2019 incorporating the steps which it was proposing to take for implementing the Judgment dated July 07th, 2015. Accordingly, an affidavit was filed which was dealt with in the order dated November 15th, 2019 (where the court noted that the state wishes to examine, by way of preliminary enquiry, what is the amount of surplus money – that is stated to be Rs. 11 crores and odd – and which is disputed. ‘The state may conduct such preliminary enquiry which may be given to us in the form of a report in a sealed cover within a period of six weeks from today’, the court had said.)”, the bench had recorded.

The verdict further states that on January 31st, 2020, a bench led by Justice Rohinton Nariman took note of a cash withdrawal of Rs. 7,62,03,498/- by the Kamakhya Debutter Board from two accounts, one in UCO Bank and one in United Bank of India. “These withdrawals have taken place since November 21st, 2011 in violation of the Supreme Court’s order without taking approval from the Deputy Commissioner, being cleverly split into amounts of Rs. 50,000/- so as to give an impression as if the order is complied with. These facts, prima facie, establish misappropriation of funds by the Board”, the bench had made the observation in January of 2020.

According to the report of the additional DGP, CID, Assam, the office bearers did not cooperate with the enquiry officer and concealed vital information, including the existence of bank accounts in their names, and that “a proper investigation based on filing of criminal case would facilitate discovery of financial trail, exact extent of misappropriation, identity of co – conspirators, retrieval of relevant documents, and so on.” In January 2020, the bench went on to say that it would be in the best interests of the situation if criminal case was filed promptly and a proper investigation was carried out within three months. “A report shall be submitted to this Court on or before the 14th of May, 2020,” the bench directed on January 31st, 2020.

The bench of Justices Rastogi and Oka argues in the present decision, “We have given careful consideration to their submissions. We have already quoted paragraph 73 of the Judgment dated July 07th, 2015, which contains effective directions. Perusal of the Judgment shows that there is no discussion therein about the liability of the respondent nos. 1 to 4 pays any specific amount. Paragraph 73 refers to premises and other properties of Kamakhya temple. However, there is no finding recorded that any particular amount is payable by the respondent nos. 1 to 4 to the petitioner.”

The Judgment further states, “The learned Senior Counsel appearing for the petitioner pointed out that immovable property of Kamakhya Temple, as well as other subsidiary temples has been handed over to the petitioner in terms of the Judgment dated July 07th, 2015. Though there is no specific direction in paragraph 73 to pay any amount, reliance is placed by the learned Senior Counsel appearing for the petitioner on the order dated January 31st, 2020, which we have quoted above. It is recorded in the said order that the report of the Additional Director General of Police, CID, Prima facie, establishes misappropriation of funds by the Debutter Board. Even in this order, there is no direction issued to pay the money which has been allegedly misappropriated. The reason is that the prima facie observation about misappropriation is based on the view expressed in the report. What is observed in the said report is not conclusive.”

Finally, the bench of Justices Rastogi and Oka comes to the following conclusion, “It is argues that the report of the Additional Director General of CID, Assam has not been disputed by the concerned respondents. Perusal of the order dated January 31st, 2020 shows that there was no opportunity granted to the parties to file any objection to the report. It cannot be said that as the respondents did not object to the report, they have accepted the liability to pay the amount of Rs. 7,62,03,498 /-. Moreover, the observations in the report cannot be treated as concluded findings. Even assuming that paragraph 73 of the Judgment dated July 07th, 2015 includes a direction to pay money, there is no adjudication made to decide what the extent of liability is. Hence, in our view, no case made out to take action under article 129 of the Constitution read with the Contempt of Courts Act, 1971.”

“Moreover, the contempt jurisdiction is always discretionary which should be exercised sparingly and with circumspection. This is not a fit case to exercise the said jurisdiction by punishing the respondents. However, it is always open for the petitioner to adopt appropriate proceedings for recovery of money as mentioned in the report in accordance with law. Accordingly, the contempt petitions stand disposed of in the above terms.”



Tagged: Supreme Court   Kamakhya Temple Management case   Guwahati High Court   Indian Constitution   Debutter Board   Justice Rohinton Nariman  
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