JUDGMENT Desai, J.
1. This is an application for contempt proceedings against Sri Debi Dayal Dubey, President of the Municipal Board, Etawah; he is alleged to have disobeyed an injunction issued by this Court.
2. The applicants instituted a suit in the court of the Civil Judge, Etawah, against "the Municipal Board of Etawah, through the Chairman, Municipal Board, Etawah", for injunction to restrain the Board from constructing shops at the back of the applicants' shops Nos. 32 to 54 except Nos. 33, 39 and 43, situated in Humeganj Market of Etawah. The land in dispute was a strip 10 feet wide at the back of the shops and the Board was constructing shops to be let out to refugees on rent. The applicant's contention was that the land belonged to them and not to the Board. The suit was contested by the Board which claimed ownership in itself over the land. It was dismissed by the Civil Judge and the applicants fifed First Appeal No. 146 of 1954 in this Court on 27-4-1954. During the pendency of the suit, the Civil Judge had granted a temporary injunction restraining the Board on account of which the work of constructing the shops had remained stayed. The temporary injunction came to an end on the suit being dismissed by the Civil Judge.
The Board resumed the construction and on the first appeal being admitted on 27-4-1954, the applicants applied to this Court for a temporary injuntion to restrain the Board from making any further constructions during the pendency of the appeal. A notice of the injunction was issued to the Board and during its pendency this Court passed an ex parte injunction on 7-6-1954 restraining the Board and its servants etc., from making any constructions of any kind on the land till further orders. The applicant No. 1 obtained from this Court a certified copy of the injunction order and the applicant No. 2 approached the opposite party, the President of the Board, with an application to which the certified copy was attached on 9-6-1954 and requested him to stop further constructions in obedience to the injunction. The President read the application and the copy of the order but refused to act on them on the ground that he was not bound to do so until the injunction order was served upon him through court.
This Court sent out the notice to show cause and the injunction order on 14-6-1954 for service. The injunction order was addressed to "The Municipal Board, Etawah, through the Chairman, Municipal Board, and expressly restrained "you, your servants, workmen and agents from making any constructions of any kind on the land in suit till further orders". The injunction order reached the office of the Civil Judge, Etawah, who was to serve it on 16-6-1954. The same day he entrusted the service to a process-server Mangal Singh, who at once went to the office of the Board to effect service, but since it was past noon, he was informed that the President had left the office. Thereupon the process-server accompanied by the applicant No. 1 at 1.30 p.m. went to Bharat Press where the opposite party works and met him and showed him the injunction order (and also the notice). He read them but refused to accept them contending that they were not addressed to him in his personal capacity and, therefore, could be served on him only in the office of the Board.
On the next day, i.e., 17-6-1954, the process-server accompanied by the applicant no. 1 again went to the Board's office in the morning but found the opposite party and the executive officer absent and the clerks refused to accept the order. Consequently, the process-server and the applicant, went again to Bharat Press and met the opposite party, who again refused to accept the order and angrily asked them to clear out saying that the order could be served only in the office of the Board and not elsewhere. Thereupon the process-server wrote out a report mentioning the facts and submitted it to the Civil Judge, who on 18-6-1954 ordered him to try again. Consequently, on 18-6- 1954 the process-server and the applicant went again to the Board's office but were informed that the opposite party, the executive officer and the head clerk were all absent from the office. They at once went to Bharat Press and found the premises locked and were informed in writing by a neighbour that the opposite party had gone out somewhere. The process-server reported the matter in writing on 18-6-1954 to the Civil Judge.
The learned Civil Judge ordered on 19-6-1954 that another process-server should be sent and that if the President and the executive officer still refused to receive the documents, the service should be done by affixation. The order and the notice were then handed over to another process-server Sita Ram, who on 19-6-1954 went to the office of the Board and served the order and the notice upon the opposite party through his clerk. On the same day, the opposite party ordered the executive officer to take necessary action at once. The executive officer on the same day wrote to the in charge overseer asking him to order the contractor at once to stop the work in accordance with the injunction order. On 21-6-1954 the contractor informed the executive officer that on receipt of his order on 19-0-1954 at 6 p.m. he immediately stopped all construction work, mentioned the state of the constructions at the time of stopping further work and inquired of the numbers of the shops in dispute so that the construction work on the land in front of the other shops might go on. It may be mentioned here that the Municipal Board is constructing 65 shops in a row and only 20 of them are in dispute and the injunction order related to the construction work going on at the back of them only.
3. The case of the applicants is that the Board did not obey the injunction order and continued the construction work upto 8-7-1954. They described the condition of the constructions on 9th June, on 21st June and on 5th July. They further alleged that on 7th July, 1954, one of the applicants again went to the spot and asked the contractor to stop the construction but he refused to listen to him and abused him on account of which the applicant filed a report at the police station. The applicants, therefore, moved this Court for punishing the opposite party for contempt of court by refusing to accept the service of the notice and the injunction order and refusing to stop the construction on the land in dispute in spite of the knowledge of the injunction order.
4. The opposite party denied the allegations. He denied that the certified copy of the injunction order was shown to him by the applicant on 9-6-1954, that the process-server attempted to serve the order and the notice upon him on 16-6-1954 and 17-6-1954 and that he refused to accept the notice and the order on those dates and asserted that he became aware of the injunction order for the first time on 19-6-1954 when it was served upon him in the office of the Board, that at once he directed the executive officer to order the contractor to suspend the construction, and that the contractor was informed of the order the same day and suspended construction work at once. He referred to the contractor's report about the state of the work as it existed on 19-6-1954, a reference to which has been made above. In the end the opposite party assured the Court that at no stage did he ever think of circumventing the injunction order issued by the Court.
5. In the rejoinder one of the applicants averred that the counter-affidavit does not contain facts, that the opposite party definitely intended to defy the injunction order and to expedite the construction before the injunction order was made absolute and that a summary of the injunction order was published in the Leader also.
6. There is no satisfactory proof of the Board's making any construction after 19-6-1954. The allegations in the affidavit that the construction continued even upto 5-7-1954 are counter-balanced by the opposite party's reply that on 19-6-1954 the construction was stopped. Once the injunction order was served upon the opposite party, we do not think that the Board would have continued the construction because we have no reason to think that the Board had an intention to commit contempt of court by disobeying the injunction. The reason why the opposite party refused to accept service of the injunction order earlier was that he would have been obliged to stop further construction as soon as the service was effected. It is the case of the applicants themselves that in order to construct as much as possible the opposite party evaded service of the injunction order. We, therefore, accept the statement of the opposite party that no further construction was done after the service of the injunction order upon him on 19-6-1954.
7. We have also no reason to doubt that the Construction work continued on the land in dispute upto the evening of 19-6-1954 and that it was not stopped either on 9-6-1954 or even on 16-6-1954. It is not the case of cither party that it stopped on any of those dates. The evidence of the applicant is that it continued right upto 5-7-1954 whereas the opposite party's evidence is that it was stopped on 19-6-1954. The report of the contractor himself is to the effect that immediately on receipt of the executive officer's orders in the evening of 19-6-1954 he stopped all construction work "including that on the land in dispute. There is thus a clear admission of the opposite party that the construction continued upto the 19th June, 1954. In the affidavit the state of the construction on 9-6-1954 is described and its correctness is not challenged in the counter-affidavit. The contractor's report describes the state of construction at the time of stopping all further construction; the latest shows more construction than the former, proving that the construction continued beyond 9-6-1954. We, therefore, find that the injunction order was disobeyed upto 19-6-1954.
8. The next question is whether the disobedience of the injunction order upto 19-6-1954 amounts to contempt; the answer depends upon whether the Board was bound to comply with the injunction order earlier. The Board could not be bound to obey it unless it knew of its existence; an order, in order to be complied with, must be communicated to the person who is to comply with it. A person who is not aware of the existence of the order cannot be held liable for not complying with it. The case of the applicants is that the opposite party became aware of the injunction order on 9-6-1954, again on 16-6-1954 and once again on 17-6-1954, whereas that of the opposite party is that he did not become aware of it prior to 19-6- 1954.
Having regard to the circumstances of the case we have not the slightest doubt that the evidence of the applicants is to be preferred to that of the opposite party. In the first place, there was no reason for the applicants to come to Court with an absolutely false case that the opposite party had committed contempt; there is no allegation of any personal animosity between them and the opposite party. Once an allegation of deliberate disobedience of the order was made against the opposite party, the opposite party would have a strong reason for denying it even though it was true. It would be in his own interest to deny it. The applicants were naturally anxious to have the construction stopped as early as possible. Their suit was for injunction and the object behind it might have been defeated if, before it was decided, the construction had been completed. It was, therefore, in the applicants' own interest to see that the injunction order was served as early as possible upon the opposite party.
That explains why they obtained a copy of the injunction order from this Court; once they obtained it, it stands to reason that they approached the opposite party, showed it to him and asked him to stop further construction. There would have been no other object behind their obtaining an urgent copy of the order from this Court. The question whether the opposite party was bound to act upon the injunction order which was not served upon him through court but was only shown to him by an interested party is not quite free from difficulty. But it seems to us that what is required in order to make a person bound by an order is not that the order is served upon him in a formal manner through court but that he becomes aware of its being passed. An order takes effect as soon as it is passed; its efficacy is not postponed till the service of it in a formal manner. If the person bound by the order is not punished for not complying with it at the moment of its being passed, it is merely because he is not aware of the fact that it is passed. In other words a person who knows that an order binding him to do a certain act is passed cannot disobey it on an excuse that the order is not served upon him formally.
In -- 'United Telephone Co. v. Dale', (1884) 25 Ch D 778 (A), Pearson J. emphatically denied it to be, and refused to act upon, the Rule that "in no case will the Court enforce obedience to its injunction by means of a committal to prison, simply upon the ground that the order has not been served, when it appears beyond all doubt or dispute that the defendant is aware that the injunction has been granted, and that it is the intention of the plaintiff to enforce it."
He relied upon -- 'Avory v. Andrews', (1882) 30 WR 564 (B), in which Kay J. answered the defendants' objection that the order had not been served upon them by saying, "But you did know of it". On page 787 he asked, "What is the necessity for serving an order upon a defendant, if he knows perfectly well without that service what it is which he is bound to obey?"
In -- 'Ponnuswami Iyer v. Ganapathi Iyer', AIR 1924 Mad 393 (C), a Magistrate was held bound to obey an order of the High Court notwithstanding that there was no formal communication thereof to him from the High Court. In -- 'Ex parte Langley', (1879) 13 Ch D 110 at p. 119 (D), it was observed by Thesiger L. J. that "under certain circumstances, a telegram may constitute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court."
Of course it may happen that when a person bound by an order is shown a document purporting to be a copy of it, he is not certain whether it is a genuine copy; if he in fact entertains such a doubt it may be said that he is not bound to take notice of the copy and comply with the order. In 'Langley's case (D)', he bona fide believed that he was not bound to act upon the telegram which he had received because there had been no proceedings which could justify him in slopping the sale; so he was not held guilty of contempt. But in the present case the opposite party did not doubt the genuineness of the certified copy shown to him on 9-6-1954 and really had no reason also to doubt it. If he refused to stop the construction because he was not certain that the copy was genuine or that the injunction order really had been passed by this Court, he was the best person to depose about the doubt in his mind, but he never pleaded in counter-affidavit that he had any such doubt. He might have been under a misapprehension about his liability and might have bona fide thought that he was not bound to comply with the order merely because he becomes aware of its existence through some source and that he becomes bound only when the order is served upon him through court; but his liability is a question of law and he cannot plead ignorance of law: -- 'Lal Behari v. State', AIR 1953 All 153 (E).
Whatever mens rea is required to constitute the offence of contempt of court is present in the deliberate doing of an act which, the contemner knows, he is forbidden to do. If he did not know that be was forbidden to do, there is no mens rea in his doing the act. If the act was done by him accidentally, then also there is no mens rea. Sri A. P. Pande referred us to the dictum that wilful disobedience of injunction is a contempt. The dictum only means that if there is a wilful dis-obedience of injunction, contempt is committed; it does not mean that contempt cannot be committed in any other manner. Moreover, what is meant by wilful disobedience is nothing but deliberate disobedience and not disobedience with a particular motive. It is the act of disobeying the injunction that must be done wilfully or deliberately; it is not the requirement that it must be done with a criminal intention or motive. It is never practicable to prove the actual intention behind an act; a court can approach the question only objectively and is forced to presume the intention from the act done on the maxim that every man is presumed to intend the probable consequences of his act. In 'Lal Behari v. State (E)', it was held by a Bench of this Court that no mens rea is required for an offence of contempt of court; what was meant is that no criminal intention or motive behind the deliberate doing of an act is required. If accidentally a person disobeys an injunction, it can be said that there is no wilful disobedience by him and he cannot be committed for contempt. The expression "wilful disobedience" was explained by Warrington J. in -- 'Stancomb v. Trowbridge Urban Council', 1910-2 Ch 190 (H). On page 194 he observed :
"If a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression 'wilfully' in Order XLII, Rule 31, is intended to exclude only such casual or accidental and unintentional acts....."
In -- 'Emperor v. Debi Prasad Sharma', 1942 Oudh WN 6 (I), a Bench of this Court approved of the statement in Tek Chand's Law of Contempt that "motive of the contemner cannot be considered in determining his guilt". In -- 'McComb v. Jacksonville Paper Co,,' (1949) 336 US 187 (J), Douglas J. said at p. 191 :
"The absence of wilfulness does not relieve from civil contempt. Since the purpose is remedial, it matters not with what intent the defendant, did the prohibited act. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently."
Sri A. P. Pande contended that the opposite party had no personal interest in the matter. The, fact would be relevant in deciding whether he acquired knowledge of the order or not. It can be argued from the fact that he had nothing to gain by not complying with the order, that the reason for not complying with the order prior to 19-6-1954 was that he really had no knowledge about the passing of the order. But once it is proved that he had the knowledge whether he had personal interest in not complying with it or not becomes irrelevant. He might have thought that he was not bound to comply with the order unless it was served through Court or served upon him in the Board's office. He might have also thought that it was a question of prestige, or desired to complete the construction of the shops as early as possible because the Board had borrowed a large amount of money from Government and expected to make good income from rent of the completed shops. He had opposed the application for interim injunction and filed a counter-affidavit in support of his objection. We, therefore, do not agree that the opposite party could be said to have no interest in continuing the construction ' even after knowing about the injunction.
9. That the process-server attempted to effect service of the order upon the opposite party at his house on June 16 and 17 and that he read the order and refused to accept it is proved to our satisfaction by the affidavit and the circumstances. There was no reason for the applicant, who swore the affidavit to fabricate an absolutely false case against the opposite party. Neither he nor the process-server would have dared to make such serious allegations against the opposite party if there were no basis. It is a strong piece of circumstantial evidence that the allegations were made against the opposite party without the least delay. The matter was brought to the notice of the Civil Judge on 17th June by the process-server himself; we do not see why he should have gone out of his way to support the applicants and make absolutely false allegations against such a responsible person as the Chairman of a Municipal Board.
The notice and the injunction had to be served upon the opposite party and, therefore, the process-server must have taken them for service. That he went to Bharat Press on the 18th June is supported by an endorsement of the neighbour that the opposite party had gone away somewhere. The applicants themselves were interested in having the injunction served as quickly as possible and, therefore, some of them must have accompanied the process-server on June 16 and 17 as affirmed in the affidavit. There is nothing to contradict the statement that the process-server did not meet the opposite party in the office in the morning of June 16 and 17; the opposite party has not affirmed in his counter-affidavit that he was in the office on those dates in the morning. Nor has he affirmed that he was not in Bharat Press in the afternoon. We do not think that the process-server and the applicant would have taken the risk of the opposite party's proving conclusively that he was not present in Bharat Press on June 16 and 17 and, therefore, could not possibly have been offered the notice and the order.
The applicants did not want the opposite party to be prosecuted for contempt by making a false allegation that he refused to accept the order; they simply brought the matter to the notice of the Civil Judge so that he might have the order served. If no attempt had been made at all to serve the order, there was no point in moving the Civil Judge. We do not see anything suspicious in the process-server's going again to the office and to Bharat Press on June 17 and on June 18. As on June 16 tile opposite party refused to accept the order in Bharat Press, the process-server went next morning to the Boards office. But when he did not find him there, he went again to Bharat Press hoping that the opposite party might accept the order even though he had refused to accept it on the previous day. On that occasion, the opposite party lost temper and turned out the process-server and the applicant who had accompanied him. Still the process-server went to Bharat Press on the 18th June because he was ordered by the Civil Judge to make another attempt. When he failed to serve the order in the Board's office, he felt obliged to go to Bharat Press.
We do not see any force in the contention of Sri A. P. Pande that the applicants were not suffering any irreparable loss by the construction going on and would not have made such a determined effort to serve the order upon the opposite party. On behalf of the applicants, it was said that their business was suffering on account of the construction going on their land which was used by them for parking their carts. That the process-server went on 19th June is not in dispute. Nor can it be disputed that the Civil Judge had been approached twice by the applicants, once on June 17 and then on June 18 or 19. Therefore, the fact that the applicants were making a determined effort to serve the order cannot be gainsaid. We are satisfied that what the applicants have affirmed in their affidavit is true.
10. On the question of law there was no dispute. Though the injunction order was to be served upon the Municipal Board through the President, it was not required by any law to be served in the office of the Board. The service had to be effected on the president and could be effected wherever he was found. The opposite party did not cease to be the President of the Board outside the premises of the Board. If the order was served upon him in the office of the Board, he could have passed the necessary orders there and then; if on the other hand, it was served upon him at his home or in some other place, he might not be able to pass the necessary orders there and then and some time might elapse before the orders were communicated to the executive officer for compliance. No blame would have been attached to him if some time had elapsed before his passing the orders or his communicating the orders to the executive officer on account of his being away from the office at the time of the service; but he would not have been justified in refusing service on the ground that he was not in the Board's office. Even if he could validly refuse service on that ground, the fact still remains that he became aware of the passing of the injunction order and became at once bound to obey it regardless of whether he accepted the order or not.
11. Whatever might have been the reason for the opposite party's refusing to accept the order in Bharat Press, he is guilty of contempt of court by not obeying it at once. We also consider that he is guilty of contempt of court by refusing to accept the order on an untenable ground and particularly on 17-6-1954 when he not only refused to accept the order but also lost temper and asked the process-server and the applicant to clear out. Refusal to accept, or evade service of, a summons may not be contempt, but refusal to accept, or vade service of, an injunction order is contempt, because there is a fundamental difference between a summons and an injunction order. A summons (I am dealing with a summons issued in a civil proceeding) does not require obedience. The party summoned is at liberty not to appear in court because the proceeding can still be taken ex parte against him. An injunction requires obedience and since there can be no obedience unless the contents of the order are brought home to the person, the injunction must be accepted when offered. To refuse to accept an injunction order is to interfere with the course of justice by refusing to acquire the knowledge without which the court's order cannot be complied with. It has been held to be a- contempt of court to threaten and impede service by a process-server; see -- 'Dominus Rex V. Jones', (1710-48) 1 Strange 185 (K); -- 'Williams v. Johns', (1773) 21 ER 355 (L); and -- 'V. M. Bason v. A. H. Skone', AIR 1926 Cal 701 (M). In the first case, treating process-server of a court contemptuously was held to be a contempt, in the second case ill-treating a process-server and asking him to eat up the subpoena was held to be a contempt and in the third case abusing and assaulting a process-server while serving a notice was held to be a contempt.
12. The last contention of Sri A. P. Pande was that it was the Municipal Board that committed contempt, or that it was the Municipal Board that could be punished for contempt, and not the opposite party. The argument was based upon the fact that the Municipal Board was the defendant and was to be restrained from continuing construction and not the President. The Municipal Board is a juristic person which could sue and be sued in its own name and it was urged that the addition of the words "through the Chairman, Municipal Board, Etawah" was unnecessary. It is true that he injunction was against, and was to be obeyed by, the Board. It is also true that there was no necessity of adding "through the Chairman, Municipal Board, Etawah" in the title of the suit. But the fact remains that the word "Board" includes the President and that the necessary action was to be taken by the President. Whoever might have been the defendant, the notice and the order had to be served upon a human being because no process can be served upon anyone who has no physical existence. The injunction had to be obeyed also by a human being because all physical acts and omissions must be done by human beings. Therefore, the injunction order in its very nature had to be served upon a human being and that was the opposite party. Whether the Municipal Board also became guilty of contempt or not, there is no doubt that the opposite party became guilty of contempt when he did not obey the injunction order. It is immaterial in which capacity he was required to obey it. It is also immaterial whether he can recover the penalty, which he is ordered to pay on the contempt being established, from the Municipal Board; this Court has no concern with those matters. Whether the penalty, which this Court may impose on the contempt being established, should ultimately be paid by the opposite party or the Board is a matter between the opposite party and the Board. The opposite party would be bound to pay the penalty in the first instance even if he is entitled to recover it from the Board later.
Sri A. P. Pande relied upon -- 'Tarafatullah Mandal v. S. N. Maitra', AIll 1952 Cal 919 (N). The facts in that 'case, however, are different. In acquisition proceedings, the High Court issued a writ of mandamus requiring the Government to refrain from taking certain steps and yet those steps were taken. Consequently, the State as represented by the Secretary of the department concerned and certain officers were proceeded against in contempt. It was held that the Secretary of the department could not be guilty of contempt. The State is not a body corporate; it is not a minor or a deity and cannot be represented by anyone such as a Secretary of a department in criminal or even in civil proceedings. A Municipal Board cannot be placed on the same footing as the State. It is a corporation which can be represented through its President. A Secretary of a department is only a servant, and not an agent, of the State. In any case, the State does not consist of the Secretaries of the departments just as a corporation consists of its directors or share-holders or a Municipal Board consists of its President and members. Therefore, though a Secretary of a department, who has himself not committed contempt of court, cannot be committed for contempt a president of a Municipal Board can be.
It was established in that case that if a corporation disobeys an injunction, its officers, whose duty it was to obey it, can be committed to prison; contempt proceedings can be taken against the particular officer whose duty it was to pass the necessary orders. In the present case it was the duty of the opposite party to pass the necessary orders on becoming aware of the injunction issued by this Court. There is no substance in the plea of Sri A. P. Pande that the necessary orders were to be passed by the executive officer or the Public Works Committee and that the President was not responsible for complying with the injunction. As a matter of fact, the opposite party himself has not pleaded that he was not required to take any action in respect of the injunction. On the other hand he pleaded compliance with the injunction immediately, on becoming aware of it and has actually passed the necessary orders. He had simply to order the executive officer to pass necessary orders on the injunction. That was the order passed by him on 19-6-1954 and that was the order he was required to pass on 9-6-1954 or on 16-6-1954.
Under Section 51 (6) of the Municipalities Act, it is the president's duty to watch the executive action of the Municipal Board. Even if there exists in the. Board a Public Works Committee, it exists only for certain purposes and not for the purpose of complying with court's orders. Sri A. P. Pande conceded that there cannot be a corporation within a corporation; so the Public Works Committee as such could not have been restrained by an injunction and it cannot be argued that it was for the Public Works Committee to comply with the injunction. In '1910-2 Ch 190 (H)', it was pointed out on page 194 that "in the case of a corporation it cannot be done by the corporation itself, at any rate in the case of such a corporation as an urban district council. Such a body can only act by its agents or servants".
'In re Tarit Kanti Biswas', AIR 1918 Gal 988 (O), every director was held liable for the publication in a newspaper of an article amounting to contempt of court.
13. We find that the President, in spite of knowing on June 9, 16 and 17, 1954, that the Board had been restrained from continuing further construction, disobeyed the injunction, even though ho was bound to comply with the injunction by getting the construction work stopped. We also find that he, without just cause, refused to accept service of the injunction order and also interfered with the process-server's duty of serving it upon him. We, therefore, find him guilty of contempt of court.
14. Since we find that he did not actually intend to disobey the injunction issued by the court, we do not think it necessary to send him to jail, We order him to pay a fine of Rs. 100/- and also pay the applicants their Costs and the Government Advocate his fee, which we assess at Rs. 300/-.