The Bordeuri Samaj of Sri Sri Maa Kamakhya vs Riju Prasad Sarma and Others

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (C) NOS. 853-855 OF 2015

IN

CIVIL APPEAL NOS. 3276-3278 OF 2013

THE BORDEURI SAMAJ OF SRI SRI MAA KAMAKHYA …… PETITIONER

v.

RIJU PRASAD SARMA & ORS. …… RESPONDENTS

J U D G M E N T

ABHAY S. OKA, J.

1. The petitioner has invoked the jurisdiction of this Court under Article

129 of the Constitution of India read with the Contempt of Courts Act, 1971

for initiating action against the respondents nos.1 to 5 for committing

breaches of the directions contained in the Judgment of this Court dated 7 th Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2021.12.15 18:13:27 IST Reason: 2

July 2015 in Civil Appeal Nos.3276-3278 of 2013, Riju Prasad Sarma and

Others v. State of Assam and Others1.

2. The issue involved in the said Judgment is in respect of Sri Sri Maa

Kamakhya Devalaya. The case made out in the contempt petitions is that

the petitioner is the elected Dolois representing members of Bordeuri

Samaj of Kamakhya Devalaya. It is the case of the petitioner that the right

of Bordeuri Samaj to manage religious affairs of Kamakhya Temple has

been recognised from time immemorial. Bordeuri Samaj consists of

members of five families and Dolois (head priest) is elected from amongst

the members of the five families. It is pointed out that in the year 1998, a

self-styled body in the name and style of Kamakhya Debutter Board

(‘Debutter Board’) was formed by the respondent nos.1 to 4 and that they

have illegally usurped the power that has been historically vested in the

office of Dolois.

3. The breach alleged in these contempt petitions is of the direction

contained in paragraph 73 of the aforesaid Judgment of this Court dated 7 th

July 2015, which reads thus:-

“73. Since the Debutter Board is occupying some part of the premises in

1 (2015) 9 SCC 461.

3 the Temple of Sri 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 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, Gauhati. 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”.

(underline supplied)

The first grievance in the contempt petitions is that the possession of the

immovable properties being 2 buildings mentioned in paragraph 2(t) of the

contempt petition has not been handed over to Bordeuri Samaj by the

respondent nos.1 to 5. The second grievance is that various movable

properties of the Temple, as detailed in the representation dated 3 rd August

2015, have not been handed over to the petitioner. The third grievance is

that though as per the statement of accounts submitted on behalf of

Debutter Board, it was holding surplus cash amount of not less than 4

Rupees eleven crores, which belonged to the Deity, it has not been paid.

Lastly, a grievance is made that books of accounts pertaining to the Temple

have not been handed over to the petitioner.

4. 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 18 th April 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 4 th July 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

entries for the relevant period in the pass books of all the bank accounts.

By the Order of this Court dated 16th August 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 6 th August 2019

incorporating the steps which it was proposing to take for implementing the 5

Judgment dated 7th July 2015. Accordingly, an affidavit was filed which was

dealt with in the order dated 15 th November 2019. The said order reads

thus:-

“The State has since filed an affidavit pursuant to our order dated 06.08.2019. Among other things, 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 then be given to us in the form of a report in a sealed cover within a period of six weeks from today.

Dr. Dhavan also points out that certain amounts have been disbursed from this sum after the 07.07.2015 judgment of this Court. The amount so disbursed may also form the subject matter of this enquiry.

List on Monday, the 13th January, 2020.”

(Underline supplied)

On 31st January 2020, this Court passed further order, which reads thus:-

“We have perused the report of the Additional Director General of Police, CID, Assam dated 08.01.2020. The report reveals that a sum of Rs.7,62,03,498/- has been withdrawn in cash by the Kamakhya Debuttor Board from 2 accounts, one in UCO Bank and one in United Bank of India. These withdrawals have taken place 6

since 21.11.2011 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. As per the report, the office bearers did not cooperate with the enquiry officer and concealed vital information including existence of bank accounts in their names. It is then stated that “a proper investigation based on lodging of criminal case would facilitate discovery of financial trail, exact extent of misappropriation, identity of co-

conspirators, retrieval of relevant documents, etc.”

It would be in the fitness of things if the lodging of a criminal case be done immediately and a proper investigation is conducted within a period of three months from today. A report be given to this Court on or before 14th May, 2020.

List the matter thereafter.

Copies of this report be given to all the parties.”

(Underline supplied)

5. Dr. Rajiv Dhavan, the learned Senior Counsel appearing for the

petitioner at the outset stated that what remains in the contempt petitions is

the recovery of the misappropriated money belonging to Temple from the

respondent nos.1 to 4. We may state here that it is pointed out across the 7

Bar that the respondent no.2 is no more. The learned Senior Counsel

invited our attention to the report dated 8 th January 2020 submitted by the

Additional Director General of Police, CID, Assam, which records that there

is a misappropriation of a sum of Rs.7,62,03,498/-. It is recorded in the

said report that the office bearers of Debutter Board did not cooperate for

the inquiry. He submitted that the respondent nos.1 to 4 never raised any

objection to the said report. Therefore, by accepting the said report, by the

order dated 31st January 2020, this Court directed that a criminal case be

lodged in connection with the misappropriation and a proper investigation

be conducted within a period of three months. He submitted that the

respondent nos.1 to 4 accepted the correctness of the report which

recorded that there was a misappropriation of the sum of Rs.7,62,03,498/.

The said amount being the property of the Temple ought to have been

refunded by the respondent nos.1 to 4 in terms of the directions issued in

paragraph 73 of the Judgment dated 7 th July 2015. He submitted that the

report of the inquiry officer was never questioned by the said respondents

and, therefore, in terms of the directions contained in paragraph 73, the

said respondents were under an obligation to pay the said amount to the

Temple. The learned Senior Counsel further submitted that the subject

matter of the Judgment dated 7th July 2015 is not only the Kamakhya 8

Temple but also the other subsidiary temples. He submitted that by filing

an affidavit, now the respondent nos.1, 3 and 4 are seeking to contend that

the Judgment dated 7th July 2015 was only in respect of the main

Kamakhya Temple. He pointed out that in the affidavit, the said

respondents have contended that the properties of Kamakhya Temple need

to be demarcated. He submitted that there is a gross breach committed by

the respondent nos.1 to 4 of the directions contained in the Judgment

dated 7th July 2015.

6. Shri R. Venkataramani, the learned Senior Counsel appearing for the

respondent nos.1, 3 and 4 submitted that there is no direction in the

Judgment dated 7th July 2015 to pay any amount to the petitioner or to the

Deity. There is no such discussion in the said Judgment dated 7 th July

2015. Even paragraph 73 of the Judgment does not contain any such

direction. He submitted that there is no dispute that as per the directions

contained in paragraph 73 of the Judgment, the immovable properties of

the Temple have already been handed over. He relied upon a decision of

this Court in the case of Sudhir Vasudeva, Chairman & MD. ONGC &

Ors. v. M.George Ravishekaran & Ors.2 He submitted that the power to

punish for contempt has to be exercised with greatest care and caution.

2 (2014) 4 SCR 27.

9

He submitted that considering the directions issued in paragraph 73 of the

Judgment dated 7th July 2015, after having handed over all the immovable

properties, an action for contempt cannot be initiated against the

respondents.

7. We have given careful consideration to their submissions. We have

already quoted paragraph 73 of the Judgment dated 7 th July 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 to pay

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.

8. 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 7th July 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 31 st January 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 10

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.

9. It is argued that the report of the Additional Director General of CID,

Assam has not been disputed by the concerned respondents. Perusal of

the order dated 31st January 2020 shows that there was no opportunity

granted to the parties to file any objections 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 7 th July 2015 includes a direction to

pay money, there is no adjudication made to decide what is the extent of

liability. 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 11

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.

10. Accordingly, the contempt petitions stand disposed of in the above

terms. All the pending applications, if any, also stand disposed of.

…………..…………………J (AJAY RASTOGI)

…………..…………………J (ABHAY S. OKA) New Delhi;

December 15, 2021.