STATE Vs. NITYANANDA MOHAPATRA

JUDGEMENT

(1.) Shri Nityananda Mohapatra, who is a member of the Orissa Legislative Assembly, has been hauled up for contempt at the instance of this Court. The background which led to the said contempt proceeding may briefly be stated. In March 1958, elections were held for the Cuttack Municipality and one Shri Mahendra Kumar Sahu was elected as the Vice-Chairman. The validity of the said Municipal elections was challenged by one Shri Bhupendra Kumar Bose and by an order dated 11-12-58 in O. J. C. No. 72 of 1958, this Court declared the elections invalid and issued a direction to the Municipal councillors restraining them from functioning as such. Consequential thereto, under the orders of the State Government under Section 404 of the Orissa Municipal Act, the District Magistrate of Cuttack took over the administration of the Municipality and remained in charge till 15-1-59. On that date, an Ordinance was passed by the Governor of Orissa validating the said Municipal Elections, notwithstanding the decision of this Court in O. J. C. No. 72 of 1958. Following the Ordinance, the next day, the District Magistrate, Cuttack handed over charge of the Municipality to the Chairman and the Councillors. Thereupon, on 21-1-59, Shri Bhupendra Kumar Bose (petitioner in O. J. C. No. 72 of 1958) filed a writ petition (O. J. C. No. 12 of 1959) challenging the validity of the ordinance. He also prayed for an injunction restraining the councillors from functioning as such. On 22-1-59 this application was placed before a Special Bench consisting of 3 judges and an interim order of injunction was issued. Two days thereafter, on an objection raised by the Advocate General on behalf of the State of Orissa, a supplementary and ancillary order was passed by the said Special Bench directing the Government of Orissa to carry on the municipal administration through the District Magistrate, and the State Government issued a notification that very day authorising the District Magistrate to exercise all the powers of the municipal councillors and to carry on the administration. Thereupon Shri Mahendra Kumar Sahu, the Vice-Chairman of the municipality filed a writ petition on 29-1-59 (O. J. C. No. 15 of 1959) challenging the validity of the aforesaid notification of the State Government and praying for an interim relief. This petition was placed before a Division Bench, one of the members of which was Mr. Justice Rao and the other member was Mr. Justice Barman, the former being a member of the Special Bench, which was dealing with O. J. C. No. 12 of 1959. On 30-1-59, Mr. Justice Rao observed (in O. J. C. No. 15 of 1959) that the writ petition of Shri Mahendra Kumar Sahu should be put up before the Special Bench which was dealing with the other writ petition, since both were inter-connected. Mr. Justice Barman recorded an order expressing his tentative opinion that the ordinance was intra vires, and that the petitioner (Mahendra Kumar Sahu) had a prima facie right to continue as the Vice-Chairman and for such an opinion he indicated certain reasons in the said order. At the same time, he thought that any such order, if issued by the Division Bench might be contradictory to the order issued by the Special Bench and might render the conflicting orders incapable of being enforced. With these observations, he agreed with Mr. Justice Rao that the petition should be placed before the Special Bench. On 3-259, the Special Bench confirmed the interim injunction issued earlier and indicated its disapproval of Mr. Justice Barman's observations about the validity of the ordinance, which question, it thought, did not strictly arise before Mr. Justice Barman. It is on this background, on 2-3-59, Shri Mohapatra, the contemner in the present proceeding, filed a petition before this Court asking the Court to proceed against Mr. Justice Barman and the Editor and Publisher of a particular newspaper, who had published a substantial portion of Mr. Justice Barman's order of 30-1-59, for contempt. On the very day, the contemner filed a memo stating that on second thoughts he decided not to press the petition against Mr. Justice Barman but this memo was not taken any notice of, since it had been supported by no affidavit. Being of the view that the petition, in so far as it related to Mr. Justice Barman, was clearly misconceived, the Court passed orders calling upon Shri Mohapatra why he should not be hauled up for contempt. Shri Mohapatra filed an affidavit on 30-3-59 explaining his conduct which was not accepted by the Court and so the actual contempt proceeding was started and in answer to the said proceeding, he filed another affidavit on 22-6-59.

(2.) The substance of the contemner's petition for proceeding against Mr. Justice Barman in contempt is as follows: That the question of validity of the ordinance was not directly at issue before the Division Bench; that during the hearing of the admission matter (in O. J. C. No. 15 of 1959) Mr. Justice Barman observed that the Special Bench was the real opposite party in the petition, and he further observed that "as he has got a chance to express his views on the validity or otherwise of the ordinance he must not lose the opportunity"; that while Mr. Justice Barman agreed with Mr. Justice Rao that the petition should be placed before the Special Bench, since it was intimately connected with the other O. C. J., he passed "a lengthy order expressing his views on the validity of the ordinance" and in doing so, Mr. Justice Barman "went out of his way"; that had Mr. Justice Barman

(3.) The contemner does not plead in his defence that the conduct of Mr. Justice Barman in making the observations that he did, either orally or in writting, did amount to any contempt of Court. It was rightly observed by this Court in initiating the contempt proceeding against the contemner,