DR. U.N. BORA, EX. CHIEF EXECUTIVE OFFICER & Ors. v. OCTOBER 26

categorical assertion that it did not wish to go into the disputed questions of fact. However, in the order under challenge it was done. A finding has been given on the documents produced by the respondent no.1 which could at best be pieces of evidence to be appreciated by the committee constituted already. It is the specific case of the appellants that they did not violate the directives of the court. There is no material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other. Vicarious liability as a principle cannot be applied to a case of contempt. The question as to whether the drivers of two members of the respondent no.1 showed the order passed by the court and the documents produced are true and genuine being in the realm of adjudication, ought not to have been taken up by the High Court while exercising contempt jurisdiction. It is the respondent no.1 who not being satisfied with the order passed by the High Court, filed the special leave petition. Even in the communications sent apart from the Press Note, it is nowhere stated that the order passed by the court could be violated. The subsequent developments also shall enure to the benefit of the appellants. In cases where cess was levied, individual members of the respondent no.1 could have made their challenge before the committee. The entire exercise of the High Court is not warranted and the aggrieved members of the respondent no.1 could have been well advised to seek the alternative remedy open to them including redressal through the committee. The order passed by the High Court on 23.10.2009 in Contempt Case No.401 of 2008 is set aside. [Paras 10,11][497-D-H; 498-A-B] Ashok Paper Kamgar Union vs. Godha and Ors., (2013) 11 SCC 1; Kapildeo Prasad Sah and Ors. vs. State of Bihar, (1999) 7 SCC 569 : [1999] Suppl. SCR 725; Dinesh Kumar Gupta vs. United India Insurance Company Ltd. and Ors., (2010) 12 SCC 770 : [2010] 13 SCR 599; Anil Ratan Sarkar and Ors. vs. Hirak Ghosh and Ors., (2002) 4 SCC 21 : [2002] 2 SCR 346; India Airports Employees Union vs. Ranjan Chatterjee and Anr., (1999) 2 SCC 537 : [1999] 1 SCR 326; Director of Education, Uttaranchal vs. Ved Prakash A B C D E F G H DR. U.N. BORA, EX. CHIEF EXECUTIVE OFFICER v. ASSAM ROLLER FLOUR MILLS ASSOCIATION 487 Joshi and Ors., (2005) 6 SCC 98 : [2005] 1 Suppl. SCR 620; Union of India and Ors. vs. Subedar Devassy PV, (2006) 1 SCC 613 : [2006] 1 SCR 303; Mrityunjoy Das and Anr. vs. Sayed Hasibur Tahaman and Ors., (2001) 3 SCC 739 : [2001] 2 SCR 471; Bal Kishan Giri vs. State of Uttar Pradesh, (2014) 7 SCC 280: [2014] 6 SCR 545 – referred to. Case Law Reference [1999] Suppl. SCR 725 referred to [2010] 13 SCR 599 [2002] 2 SCR 346 [1999] 1 SCR 326 referred to referred to referred to [2005] 1 Suppl. SCR 620 referred to [2006] 1 SCR 303 [2001] 2 SCR 471 [2014] 6 SCR 545 [2014] 1 SCR 538 referred to referred to referred to relied on Para 6 Para 6 Para 6 Para 6 Para 6 Para 6 Para 6 Para 6 Para 9 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1967 of 2009. From the Judgment and Order dated 23.10.2009 of the High Court of Gauhati in Contempt Case No.401 of 2008. Arunabh Chowdhury, Ms. Barnali Chowdhury, Dechen Wangdi Lachungpa, Ms. Pallavi Langar, Rahul Pratap, M/s Coac, Advs. for the Appellants. Hrishikesh Baruah, Ms. Radhika Gupta, Ms. Akangsha Manik, Jagjit Singh Chhabra, Manish Goswami, Rameshwar Prasad Goyal, Advs. for the Respondents. The Judgment of the Court was delivered by M. M. SUNDRESH, J.

#1. The present appeal has been filed against the order of the Division Bench of the High Court finding the appellants guilty of willful disobedience of the order passed in Writ Petition (Civil) No. 5491 of A B C D E F G H 488 SUPREME COURT REPORTS [2021] 10 S.C.R. A 2001 etc. dated 12.09.2008 in respect to the levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972.

#2. Pending the appeal, the first appellant died on 27.02.2017. Taking note of the aforesaid fact, the proceedings as against him were declared as abated by the order of this court dated 07.10.2021.

#3. We have heard the arguments of the counsels at the Bar and perused the documents filed along with the written arguments. FACTS:

#4. While leapfrogging unnecessary facts, a brief sketch is furnished hereunder: a) On 03.09.1974, the Assam Agricultural Produce Market Act, 1972 came into the statute book. Section 21 of the Act conferred power on the marketing committees or the Assam State Agricultural Marketing Board (hereinafter referred to as “the Board”) to levy cess on the agricultural produce bought or sold in the notified market area, at the prescribed rate. Explanation-I appended to the said provision brought in a deeming fiction. Rules were enacted in exercise of the power conferred under Section 49 of the Act. b) Writ petitions were filed by the respondent no.1-Association among others before the High Court on the premise that its members purchased the agricultural produce outside the State and thus, no cess is leviable. Rules were struck down leading to the introduction of the Amendment Act, 2000, amending Section 21 of the Act while inserting Section 21A. A challenge made by the Board to the decision of the Full Bench dated 04.04.2001 before this Court resulted in the order dated 08.12.2005, inter alia holding that in view of the subsequent developments, there is no need to go into the issues. c) Section 21A was inserted by the amending Act, 2006 facilitating the Board to levy and collect cess for the marketing committees in the notified market areas in addition to their existing power. This amendment was put into challenge in the batch of writ petitions before the Division Bench of the High Court. While upholding the constitutional validity vide judgment dated 12.09.2008, it has been held B C D E F G H DR. U.N. BORA, EX. CHIEF EXECUTIVE OFFICER v. ASSAM ROLLER FLOUR MILLS ASSOCIATION [M. M. SUNDRESH, J.] 489 d) e) f) that the deeming fiction would apply only to such of those cases where a trader fails to establish that there is direct evidence of sale or purchase having been undertaken outside the notified market area. It was further held that disputed questions including that of refund cannot be gone into in a writ petition invoking Article 226 of the Constitution of India, and such disputes can be dealt with by the committee constituted. Alleging that the orders passed by the Division Bench with respect to the direct evidence produced by the members of the respondent no.1 were not looked into and scrutinized on purpose while levying cess, a contempt petition was filed in Contempt Case (Civil) No.401 of 2008. Incidentally, the respondent no. 1 also filed a Special Leave Petition (Civil) No. 11317 of 2009 challenging the order of the Division Bench dated 12.09.2008, which was converted into Civil Appeal No. 9655 of 2013, wherein, leave was granted by this court vide order dated 25.10.2013. In the aforesaid contempt petition, the Division Bench vide the impugned order dated 23.10.2009 took note of certain documents produced by two members of the respondent no.1, such as sale invoices, lorry challans, tax challans, insurance receipts etc. It went into the factual assertions made, notwithstanding the committee constituted by it earlier for the aforesaid purpose and accordingly, hauled all the appellants for committing willful disobedience. Against the aforesaid order punishing the appellants for having committed a contumacious act, a Special Leave Petition (Civil) No.10538 of 2010 was filed by the Board and on grant of leave the same was registered as Civil Appeal No. 9656 of 2013. This Court has passed the following order on 30.03.2010 while issuing notice in the aforesaid appeal filed by the Board when the matter was pending as a special leave petition: “Permission to file SLP is granted. Issue notice on the application for condonation of delay as well as on the special leave petitions. A B C D E F G H 490 SUPREME COURT REPORTS [2021] 10 S.C.R. g) h) Assam State Agricultural Marketing Board is permitted to collect tax in accordance with the Judgment passed by the Division Bench of High Court dated 12.9.2008, uninfluenced by the order passed in the contempt proceedings dated 23.10.2009. Post along with SLP(C) No. 11317 of 2009.” The special leave petitions filed by the respondent no.1 challenging the original order of the Division Bench was taken up as Civil Appeal Nos. 9655 of 2013, 9657-9665 of 2013 and 9666 of 2013 and accordingly the order dated 29.09.2021 was passed, which is appositely referred hereunder: “Learned Counsel for the Appellants state that the impugned Act has been repealed by an Ordinance issued on 13.07.2020 and subsequently Act has been brought in place. In view of the aforesaid, the issue sought to be debated in the present appeals have become academic and thus it is not disputed that the appeals really do not survive for consideration. Civil appeals are disposed of accordingly. Pending applications also stand disposed of.” After the order dated 12.09.2008 passed by the Division Bench upholding Section 21 of the Act, there were exchange of communications between the appellants and the respondents. While the respondent no.1 alleged violation of the order passed, the appellants contended that the action was only taken in tune with the mandate of the Board under Section 21 of the Act and the remedy, if any, to the members of the respondent no.1 would be before the Committee constituted in pursuance of the said decision.

#5. Thus, much water has flown under the bridge after the order under challenge before us. The provision underwent further change having been repealed by an ordinance followed by an appropriate enactment. In light of the aforesaid factual scenario, we shall proceed with the case. A B C D E F G H DR. U.N. BORA, EX. CHIEF EXECUTIVE OFFICER v. ASSAM ROLLER FLOUR MILLS ASSOCIATION [M. M. SUNDRESH, J.] 491 SUBMISSIONS OF THE APPELLANTS:

#6. Learned counsel appearing for the appellants submitted that the second appellant was transferred on 23.07.2008 and the appellant no. 1 was in-charge only till 21.01.2009. The first appellant died on 27.02.2017. There is no willful and deliberate violation of the order involved. The High Court has erred in going into the facts in appreciating evidence. It exceeded its jurisdiction which it declined to exercise even while invoking Article 226 of the Constitution of India. It could have relegated the members of the respondent no.1 to go before the committee constituted. There is absolutely no material to implicate the appellants with the alleged action of their subordinates. The concept of vicarious liability is alien to a contempt jurisdiction. Unconditional apologies were also rendered before the High Court. The respondent no.1 is the one who simultaneously assailed the order dated 12.09.2008 passed by the Division Bench, before this Court, while approaching the High Court under its contempt jurisdiction. Even otherwise, in light of the subsequent developments, the appeal deserves to be allowed. On the aforesaid submissions, the appellants placed reliance upon various decisions of this Court in the case of: A B C D • • • • • • • • • Ashok Paper Kamgar Union vs. Godha and Ors., (2013) 11 SCC 1 Kapildeo Prasad Sah and Ors. vs. State of Bihar, (1999) 7 SCC 569 E Dinesh Kumar Gupta vs. United India Insurance Company Ltd. and Ors., (2010) 12 SCC 770 Anil Ratan Sarkar and Ors. vs. Hirak Ghosh and Ors., (2002) 4 SCC 21 F