MD NURUL ABSAR Vs. SUKUMAR PODDAR

JUDGEMENT

(1.) This is an appeal against order passed on 24-12-85 by Ajit Kumar Sengupta, in Contempt Rule No. 15255 (W) of 1985, started on the ground of wilful disobedience of an order passed on 10-8-84 in Civil Rule No. 11959 (W) of 1984 under Article226 of the Constitution. The respondent No. 1, Sukumar Podder along with 27 other persons (the respondents Nos. 2 to 28) filed an application under the Contempt of Courts Act. 1971 against Sri Bijay Chatterjee the District Magistrate, Malda, and the contemner-respondent No. 2, Sri Md. Nurul Absar. On the basis of that application for contempt a Rule was issued on 11-10-85 to show cause as to why the contemners-respondents Nos. 1 and 2 should not be committed to prison or otherwise dealt with for having violated the court's order dated 10-8-84 passed in C.R. No. 11959 (W) of 1984. The Rule was made returnable on 20-12-85. Subsequently, on 24-12-85, the following order was passed by Ajit Kumar Sengupta, J. : "Respondent No. 2 is present in court today. He has given an undertaking through his counsel that the payment as directed by my order dated 10th August, 1984 will be made on or before 11th January, 1986. Let this matter appear on 13th January, 1986 for further orders. In the meantime officer shall submit a report if the service has been effected on the respondent No. 1". It is against this order dated 24-12-85 passed in the Contempt Rule No. 15255 (W) of 1985, that the present appeal is directed.

(2.) It appears that in June, 1984, one Sri Balai Chandra Basak was the Chairman of the old Malda Municipality. On 20-6-84, a radiogram was sent by the Deputy Secretary to the Government of West Bengal, Local Government and Urban Development Department, to the District Magistrate, Malda, to see that no illegal appointments in the Old Malda Municipality in contravention of S. 66(5) of the Bengal Municipal Act, 1932 (hereinafter referred to as "the Act" for the sake of convenience) were made. The District Magistrate. Malda, sent a copy of that radiogram to the chairman of Old Malda Municipality. The Chairman, Mr. Basak, sent a reply to the District Magistrate that no such appointment would be made by him in the Municipality. The respondents Nos. 1 to 28 were, however, given appointments by the Municipality on or about 28-7-84. On 31-7-84, the Head Clerk of the municipality wrote to the District Magistrate that after 4 p.m. on 30-7-84 18 persons, out of the 28 appointees had their names forcibly entered in the Attendance Register through the respondent No. 26, Md. Murtaja Ali. Thereafter on 2-8-84, the District Magistrate, Malda kept in abeyance all the 28 appointments until further orders under S. 548(2) of the Act on the ground that the appointments were made by the chairman of the Municipality in contravention of S. 66 of the Act and were irregular and in excess of powers conferred by law. Copy of this order of the District Magistrate dated 2-8-84 was sent to all the respondents Nos. 1 to 28. Thereafter, the respondents Nos. 1 to 28 moved this court under Art. 226 of the Constitution and had an ex parte order on 10-8-84 from Ajit Kumar Sengupta, J. for issuance of Rule upon the opposite parties in the writ petition for showing cause why a writ in the nature of Mandamus, of a writ in the nature of prohibition or a writ in the nature of certiorari should not be issued in terms of prayers of the writ-petitioners. By that ex parte order dated 10-8-84, Sengupta, J. was also pleased to issue ad interim injunction in terms of prayer (c) till 1st day of September, 1984 with liberty to apply for extension on 20-8-84. Prayer (c) in the writ petition was for issuing interim injunction in the nature of status quo restraining the respondents, including the present appellant, from interfering with the work of the respondents in any manner whatsoever, later on, this order of interim injunction was extended until further orders. Subsequently, on 16-8-84, an order was passed by the Government of West Bengal, Department of Local Government and Urban Development, suspending all appointments of the respondents Nos. 1 to 28, as made by the Commissioner of Old Malda Municipality, under S. 548 (1) of the Act, pending hearing to be given to the Commissioners in this regard. On 5-9-84, the Government superseded the Commissioners of the municipality for period of six months under S. 553 of the Act on various grounds including the irregular appointment made by the Commissioners of the Municipality in contravention of the provisions of S. 66 of the Act and appointed the contemner-respondent No. 2 (appellant), who happened to be the District Panchayat Officer, Malda, as Administrator under S. 554(1) of the Act. Copy of the Government Order dated 16-8-84 was sent to the Administrator by the Government on 13-9-84. After receipt of this copy of the Government Order, the appellant published a notice on the Notice Board of the municipality on 17-9-84. It was stated in that notice that all irregular appointments given by the erstwhile Chairman remained suspended as per Government Order No. 1643 dated 16-8-84. Copy of this notice was sent to the respondent No. 1, Sukumar Poddar, by the appellant as the respondent No. 1 along with others had made a representation dated 11-9-84 before the Administrator (appellant), who joined on 10-9-84, for making arrangement for payment of salary to them and for taking proper steps to allow them to function smoothly on the basis of the order passed by Ajit Kumar Sengupta, J. on 10-8-84 under Art. 226 of the Constitution. No salary was paid by the appellant to any of the respondents, who could not also work in the municipality. An application for contempt for wilful disobedience of the order dated 10-8-84 passed by Sengupta, J. was thereafter filed in court and the impugned order dated 24-12-85 was passed, showing that an undertaking was given by the appellant through his advocate for making payment, as per direction of the court on 10-8-84, on or before the 11-1-86. The propriety of this alleged undertaking stated to have been made by the appellant, through his advocate, in court is in question in this appeal.

(3.) Mr. T. K. Chatterjee, the learned Advocate for the respondents Nos. 1 to 28, has raised a preliminary objection about the maintainability of this appeal under S. 19 of the Contempt of Courts Act, 1971. According to Mr. Chatterjee, the impugned order is an interlocutory order, which is not appealable. We are unable to accept this contention. It has been held by the Supreme Court in the case of Chhaganbhai v. Soni Chandubhai, AIR 1976 SC 1909 that breach of an undertaking amounts to breach of an injunction of court. As the impugned undertaking in this case affects the right of the parties, it is not an interlocutory order. In case of breach of the undertaking given by the appellant through his advocate, the appellant can be punished for contempt. As such, an appeal lies against the impugned order. We are supported in this view also by the decision of this court in the case of R. Chatterjee v. Rambadan Choubey, (1981) 85 Cal WN 1003. The contention regarding non-maintainability of this appeal thus fails.