Emperor vs Pandit Girindra Mohan Mishra

We have here to deal with a letter of reference by the District Magistrate of Bhagalpur complaining of an alleged contempt of his Court by one Pandit Girindra Mohan Mishra, Acting Chief Manager of the Darbhanga Raj. The letter of reference was in the ordinary course of affairs placed before a Single Judge of this Court and notice was issued thereupon. The opposite party is here to defend himself against the allegation that he has committed any contempt and the support of the motion has been undertaken by the Government Advocate on behalf of the District Magistrate. One does not know what the course of proceedings actually is, but I think if the matter had been placed by the authorities in the hands of the legal advisers of the Government for advice the motion contained in the letter of reference would never have been pressed. The idea that there is anything in the action of the present complaint which constitutes a contempt of Court is entirely misconceived. The circumstances are as follows:

North of the river Ganges there are two big estates which are called the Darbhanga Raj and the Banaili Raj. Between the two there runs a depression which is a river in normal times. On the edge of the Banaili Raj there is an embankment and there is a similar embankment on the edge of the Darbhanga Raj. The two embankments face each other across the river. There has been in the past a considerable amount of litigation between the proprietors of the two estates because of the flooding of the country on the one side or the other and each side has attributed this flooding to the conduct of the other party. Sometime ago there was a notification issued u/s 6, Bengal Embankment Act, by which the people in the neighbourhood of this system of embankments were forbidden from erecting any new embankment or adding to any existing embankment or obstructing or diverting any water course without the consent of the Collector. Sir John Whitty (the then Governor of the Province) went to the neighbourhood and endeavoured to bring about some sort of reconciliation between the opposing litigants so that the disputes might be brought to an end, and it would appear that both sides gave him an undertaking that they would not add to the embankments or alter them in any way without going to the Collector and getting the permission of the Government. Now, on the Banaili embankment there occurred a breach and it would appear that water in the rainy season poured through this breach, filled the water course between the lands of the two estates, and it seems that the proprietor of the Darbhanga Raj began to fear damage to the estate property apprehending possibly that the water would overflow the water course and the embankment on his side and so do damage. Thereupon some tenants of the Banaili estate, whose land on the Banaili side had been repeatedly injured by the fact that flooding had taken place, set to work on their own account to repair this breach in the Banaili embankment.

It would seem that there was some difficulty in merely re-establishing the old line of the embankment because the channel at the mouth of the breach into the water course was of a depth which did not permit of the repair of the breach by merely restoring the old line of the embankment. They therefore on the landward side constructed a curved semicircular embankment from one end of the breach to the other, the convex side of the curve being towards the Banaili line. The result of that was, that as far as linear measurements are concerned the length of the line of the embankment was somewhat increased. On 8th June 1936 the proprietor of the Darbhanga Raj made a petition to the District Magistrate who is also the Collector complaining of this action by the Banaili people.

Thereupon the District Magistrate started, in the ordinary course of his duty, a file to deal with this complaint and in the order sheet there eventually appeared an entry that the petition of complaint by the Darbhanga Raj was defective for two reasons: in the first place the specific complaint was not before the Court to be examined on oath and it being a matter that required preliminary examination of complainant the Court could not proceed to take action to have the alleged offenders prosecuted in that state of affairs; further, the District Magistrate expressed the opinion that upon the facts, even if they were true as disclosed, the alleged behaviour of the Banaili people did not constitute an offence u/s 76, Bengal Embankment Act, because the method of dealing with the breach of the Banaili people was not in any sense the creation of a new embankment nor was it an addition to an existing embankment, and that it was merely a repair. With the accuracy of that view we are not concerned but, at any rate, the order concludes with the statement that there is no complaint which can properly be investigated and therefore no action would be taken. That order was passed on 8th July of the same year. In order to remedy the defect in their procedure on 27 th July the Darbhanga people filed a regular complaint, the formal complainant being a person who appears to have been one of their own tenants, and that tenant was formally examined on oath.

Now on 11th August, while this new complaint was pending, Mr. Daunt, who was the Manager of the Banaili Raj, wrote a letter to the Collector and sent a copy of that letter to the Manager of the Darbhanga Raj. In the letter he referred to the undertaking which had been given by both parties to the then Governor that no alteration would be made in the embankment system and he pointed out that there had been very great delay by the Government in passing any orders upon the matter of the embankments generally by which the difficulties of the parties might possibly have been solved. He referred to the facts that the tenants of the Banaili Raj in the neighbourhood of the embankment had been long labouring under great feeling of exasperation because as year after year went by and the gap in the Banaili embankment was not repaired their lands were continuously flooded. He stated that he himself had the utmost personal sympathy with these unfortunate tenants and that unknown to him and without his connivance it was a fact that the tenants had repaired a breach in the Banaili embankment. He further said, referring to the undertaking which had been given by his principals, that the time was rapidly approaching when he must withdraw from that undertaking in justice to the tenants of the Raj whose land was being destroyed. In so addressing his letter to the Collector and in sending a copy to the Darbhanga Manager, Mr. Daunt was obviously doing nothing improper in dealing with an undertaking given by his principals to the Governor.

He was obviously right in addressing the Executive Officer (the Collector) on the spot and putting such grievances as he had before that officer. Now the Manager of the Darbhanga Raj having received the copy of Mr. Daunt''s letter also wrote a letter to the Collector and sent a copy of it to Mr. Daunt. In this letter there appeared the observations which are alleged by the Collector to be a contempt of his magisterial Court. The Manager of the Darbhanga Raj referred to the disputes generally and complained that the repair in the breach of the Dumaria Bandh was according to his view a breach of the undertaking given to the Government, and he did not impute to Mr. Daunt any personal participation in the matter but obviously attributed to Mr. Daunt and to his principals the blame for the alleged wrongful breach of the undertaking. He also dealt with some contentions that had been raised in Mr. Daunt''s letter that the people of Darbhanga had themselves been guilty of certain breaches, and accused the General Manager of a determination to break the undertaking and that statement was not without some justification inasmuch as Mr. Daunt had expressly stated to the Collector that he did propose not to abide by the undertaking unless the grievances of the Banaili people were speedily removed. There was then a reference to the proceedings which had been taken by the Darbhanga people and had been dismissed by the District Magistrate on the grounds which we have just stated. Now the passage which is the subject of this complaint runs as follows:

The repairs that were made by the Banaili people were actually on a new alignment increasing the length of the Bund and the Banaili people have been evidently emboldened by the view that you have taken in the case and the orders that were passed by you.

It is contended on behalf of the Collector that this is in some way a contempt of the authority of the Collector in his capacity as District Magistrate when he had on the 8th of July dismissed the complaint of the Darbhanga people. There are however several obvious answers to the contention. The letter complained of, speaking of it generally, is a letter addressed to the Collector who was the proper person to-deal with any alleged breach of an under taking given to the Governor (Sir John Whitty). The decision by the Collector as a Magistrate was a relevant point to mention in dealing with a supposed threat of a breach of undertaking. There is nothing in the observation which would tend to lessen the authority of the Court or to bring the authority of the District Magistrate''s Court into contempt. Moreover, the observations referred to a decision by the Magistrate in which he had refused to take any action at all, that is to say, he having refused to act on at complaint before him and having refused to summon the accused there was no judicial matter before the Magistrate ab all and the action of the Magistrate was a mere rejection of the complaint. To urge that the passage quoted or the rest of the letter is minatory in character is simply ridiculous. There is nothing therefore in the nature of a criticism of a judicial decision, and even if there had been such a criticism there is nothing of a kind to bring the Magistrate''s Court into contempt or to diminish its authority. It frequently happens in this Court that a Judge sitting on the Bench is informed with respect to a former order that be has passed that the other side has been emboldened by that former order to do something injurious to the complaining party, but nobody would think of the observation of the advocate in stating that a party had been emboldened by an earlier decision as intended to be a contemptuous reference to the Judge who was addressed and had made the earlier order. Indeed it seems that there is nothing whatever to be said in support of the allegation that this action on the part of the Acting Chief Manager of the Darbhanga Raj constitutes a contempt in any way.

We have been asked by Mr. K.B. Dutt (appearing with many other learned members of the Bar) on behalf of the opposite party to award costs, and in our opinion this is a case in which costs should properly be awarded. The Collector himself in this case is obviously not personally responsible for the costs although the order in form must be against him. It would have been wiser, we think, before the decision had been taken by whoever responsible for it to support the letter of reference, that the matter should have been presented to the proper legal advisers, of Government for opinion. That may or may not have been done, but it is difficult to believe that any lawyer can have advised the pressing of this motion. The fact that the learned Government Advocate has been instructed to appear on behalf of the Collector entitles the opposite party to costs, although having regard to the simplicity of the case it might easily have been left to the most recently admitted member of the profession to conduct the argument on his behalf. We therefore reject the letter of reference awarding ten gold mohurs as costs to the opposite party.

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