Allahabad High Court
Durga Nagpal 1853(Cont)2012 vs C/M Patronage Institute Of Management ... on 31 July, 2013
Bench: Uma Nath Singh, Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench Lucknow *********** [RESERVED] [ A.F.R. ] Reserved On:- 15.07.2013 Circulated On:- 30.07.2013 Delivered On:- 31.7.2013 Court No. - 1 Case :- SPECIAL APPEAL No. - 322 of 2013 Appellant :- Durga Nagpal 1853(Cont)2012 Respondent :- C/M Patronage Institute Of Management Studies And Ors. Counsel for Appellant :- Apoorva Tewari,Amit Jaiswal Counsel for Respondent :- H.G.S.Parihar,Lalit Shukla Hon'ble Uma Nath Singh,J.
Hon'ble Devi Prasad Singh,J.
[Per Devi Prasad Singh, J.]
1. Instant special appeal under Chapter VIII, Rule 5 of Rules of the Court, has been preferred against the orders passed in Contempt Petition (Criminal Misc. Case No.1853 (C) of 2012) while dealing with an application for modification of final judgment and order dated 21.8.2012.
2. Respondent Committee of Management, preferred a Writ Petition No.5325 (M/B) of 2012. In the said writ petition, interim order dated 28.6.2012 was passed by a Division Bench of this Court, directing to provide necessary recognition and benefit to respondent which has been duly recognised by the Registrar of the societies. The order dated 28.6.2012 passed by the Division Bench in the aforesaid writ petition is reproduced as under:-
"Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
Subject to further orders passed by this Court, keeping in view the earlier order dated 10.6.2010 passed in Writ Petition No.5581 (M/B) of 2010 and the order dated 18.11.2010 passed in Civil Revision No.125 of 2010, as an interim measure the respondents are directed to provide necessary recognition and benefit to the petitioner's society which has been recognised by the Registrar of the Society, vide order dated 31.1.2011 and 24.4.2012 (Annexure No.27). Further, the Governing Body of the said Society alone will represent before the concerning authorities for all purposes as the same has already been recognised by the Registrar of the Society.
Let counter affidavit be filed within four weeks and rejoinder affidavit may be filed within two weeks.
List immediately thereafter.
Order Date :- 28.6.2012 "
3. It appears that on account of non-compliance of the aforesaid interim order, respondent Committee of Management, had filed contempt petition being Criminal Misc. Case No.1853 (C) of 2012 in which notices were issued to authorities concerned. After hearing learned counsel for parties including learned Additional Chief Standing Counsel, the Contempt Judge taken note of the fact that the recognition has been granted to respondent Committee of Management. After recording statement of learned Additional Chief Standing Counsel, and learned counsel for Vice-Chancellor, Gautam Buddha Technical University, the contempt petition was disposed of finally and contemnors were discharged. The order dated 21.8.2012 passed by the Contempt Judge (supra) is reproduced as under:-
"Hon'ble Dr. Satish Chandra,J.
In pursuance to the earlier order dated 08.08.2012, Sri Bachchu Singh, Sub-Divisional Magistrate, Sadar, Gautam Buddha Nagar/Authorised Controller, Patronage Institute of Professional Studies, Greater Noida is present in person.
He through his counsel, Sri Lalit Shukla, learned Additional Chief Standing Counsel, submits that in the same premises, there are two institutions, namely; (i) Patronage Institute of Management Studies (for short, 'Management Studies'); (ii) Patronage Institute of Professional Studies (for short, 'Professional Studies').
He submits that he has received an order passed by the Vice Chancellor of Gautam Buddha Technical University, who has recognized the Management as well as Society pertaining to the Management Studies.
He also submits that he has nothing to do with the Institution of Management Studies as he was appointed by the Hon'ble Allahabad High Court, Principal Bench Allahabad (Writ Petition No. 43680 of 2011) as authorized controller only for the Institute of Professional Studies. Both the Institutions are separate and nothing is common at this moment except the common entrance which is to be utilized by both the Institutions without any hurdle.
He further states that in future, if there is some problem with the common entrance, then a separate entrance will be created at the cost of Institute of Professional Studies for its use. In that case, the present entrance shall be utilized by the Institute of Management Studies. Learned counsel for the petitioner has agreed to it.
With the consent of parties' counsel, liberty is granted to the Authorized Controller as well as Management of Management Studies to seek the police assistance as and when required for smooth functioning of the Management Studies and concerning police authorities shall provide the same.
In view of above and without entering into the merits of the case, the contempt petition is disposed of.
Notices are discharged.
Order Date :- 21.8.2012 "
4. It appears that in spite of statement given before the Contempt Judge, authorities concerned are alleged not to have kept their words. Feeling aggrieved with the alleged inaction on the part of the authorities, respondent Committee of Management have filed Civil Misc. Application No.26686 of 2013 for modification of order dated 21.8.2012 (supra). It is alleged by the Committee of Management that appellant and other authorities have flouted the order dated 28.6.2012 as well as violated the undertaking given before the Court on 21.8.2012. Hence they are liable to be punished for committing contempt of this Court. The prayer made by the respondent Committee of Management in Civil Misc. Application No.26686 of 2013 is reproduced as under:-
"APPLICATION FOR MODIFICATION OF THE ORDER DATED 21.8.2012 PASSED BY THE HON'BLE JUSTICE DR. SATISH CHANDRA."
The petitioners, named above, most respectfully beg to submit as under:-
For the facts, reasons and circumstances mentioned in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to modify the order dated 21.8.2012 passed by the Hon'ble Justice Dr. Satish Chandra to the extent that the order dated 8.8.2012 has been passed in respect of Committee of Management, Patronage Institute of Management Studies, 18, Knowledge Park, Gautam Buddha Nagar through its General Secretary Dr. Rakesh Varma and further the contempt proceedings may also be initiated against Smt. Durga Shakti Nagpal, Sub Divisional Magistrate, Sadar, Gautam Buddha Nagar for deliberately flouting the undertaking dated 21.8.2012 given by the Sub Divisional Magistrate, Gautam Buddha Nagar and also for not complying with the direction issued in the present contempt petition and also for committing contempt of this Hon'ble Court by flouting the order dated 28.6.2012 issued in writ petition No.5325 (M/B) of 2012.
Any Such other order or direction which this Hon'ble Court may deem just, fit and proper under the circumstances of the case may be passed.
Dated: Lucknow
14,03.2013 (H.G.S. PARIHAR)
Advocate
Counsel for the Petitioners"
5. A plain reading of application moved by the respondent Committee reveals that appellant have committed contempt of this Court having not complied with the undertaking given on 21.8.2012 as well as flouted the interim order dated 28.6.2012. Hence on account of violation of order and the undertaking dated 21.8.2012, the contemnor may be summoned and punished.
6. It appears that after filing of Civil Misc. Application No.26686 of 2013, the Contempt Judge took cognizance of the matter on 15.3.2013. Sri Lalit Shukla, learned Additional Chief Standing Counsel could not satisfy the Court with regard to latest position but assured that S.D.M., shall present in person along with record on the next date i.e., 2.4.2013.
7. On 2.4.2013, appellant No.1 Smt. Durga Nagpal appeared in person and informed the Court through counsel that she is Incharge exclusively for Institute of Professional Studies and has nothing to do with the interim order dated 28.6.2012 (supra) passed by this Court which relates to Institute of Management Studies. She assured the Court that there shall be no hurdle for ingress and egress of the Institute of management for Studies and separate entrance shall be provided to two different Institutes. She also informed the Court that undertaking was given by her predecessor on 21.8.2012. The Court adjourned the case for 15.4.2013 for further hearing. On 16.4.2013, learned counsel for the respondent Committee of management informed the Court that undertaking given on 2.4.2013, has not been complied with hence S.D.M. was again summoned. On 13.5.2013, the Court was informed that Advocate General shall appear and argue the case.
In view of the cognizance taken by the Contempt Judge in response to Misc. Application No.26686 of 2013 moved by the respondent Committee of Management, the officers were required to present in Court.
It may be noted that before securing the presence of S.D.M., no finding has been recorded by Contempt Judge as to who has given undertaking and how prima facie, S.D.M. is responsible for violation of order dated 28.6.2012. Feeling aggrieved, the present special appeal has been preferred.
8. While assailing the impugned orders, Sri Anil Tiwari learned Senior Counsel assisted by Sri Apoorva Tiwari, learned counsel for the appellant, submitted that after final disposal of the matter and being discharged from contempt proceeding, it is not open for the Contempt Judge to re-open the issue. In case there is non-compliance of undertaking, a fresh proceeding could have been initiated against the officers who have given undertaking before the court but in any case, it is not permissible for the Contempt Judge to re-open the issue.
9. On the other hand, Sri H.G.S. Parihar, learned counsel for the respondent submitted that special appeal is not maintainable being preferred against the interlocutory order. He would submit that Contempt Judge is fully empowered to recall its order and proceed against the contemnor on account of breach of undertaking.
10. Hon'ble Supreme Court in a case reported in (1987) 2 SCC 179: State of Uttar Pradesh. Vs. Brahm Datt Sharma and another, held that after final disposal of a writ petition, proceeding stands terminated and it is not open to the Court to re-open the proceeding by means of a miscellaneous application.
11. In another case reported in (2013) 2 SCC 698: Cine Exhibition Private Limited.Vs.Collector District Gwalior and others, Hon'ble Supreme Court held that an application for modification of judgment shall not be maintainable since it shall amount to review of judgment.
12. A Division Bench of this Court of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, had considered various pronouncements of this Court and Hon'ble Supreme Court and held that special appeal against the interim order, shall not be maintainable. Special appeal lies against final adjudication of controversy or which got tracking of finality of the matter. It has further been held that appeal or revision are statutory rights and may be exercised by the Court only in case provided in the Act or statutes.
13. Sri Anil Kumar Tiwari learned Senior Counsel invited attention towards a case reported in (1996) 4 SCC 411: State of Maharasthra. Vs. Mahboob S. Allibhoy and another, where Hon'ble Supreme Court reiterated the settled proposition of law that appeal is creator of the statutes and unless a statute provides for an appeal said power cannot be exercised by the Court. Hon'ble Supreme Court further held that contempt proceeding is not dispute between two parties. Rather, the proceeding is primarily between the Court and the person who is alleged to have committed contempt of Court. The person who informs the Court or brings to the notice of the Court that anyone has committed contempt of such Court, is not in the position of a prosecutor; he is simply assisting the Court so that the dignity and the majesty of the Court is maintained and upheld. Their lordships held that where High Court has passed the order directing that a complaint be lodged against the respondents, no appeal shall lie under Section 19 (1) of the Contempt of Courts Act. Their lordships further held that even if no appeal is maintainable on behalf of the person at whose behalf contempt proceeding is initiated and dropped, is not without remedy. Such person may prefer SLP in Hon'ble Supreme court. For convenience, para 5 of the judgment in the case (supra) is reproduced as under:-
5. But even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed, is not without any remedy. In appropriate cases be can invoke the jurisdiction of this Court under Article 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court. In suitable cases, this Court has to exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of Justice."
14. In one other case reported in (2004) 13 SCC 610: V.M. Manohar Prasad. Vs. N. Ratnam Raju and another, their lordships of Hon'ble Supreme Court has reiterated the settled proposition of law that in a contempt proceeding no further direction could be issued by the Court. In case it is found that there is violation of order passed by the Court, the Court may punish the contemnor otherwise, notice of contempt is to be discharged. The Contempt Judge cannot supplement the impugned order by his own order, to quote relevant portion of para-7 of the judgment in the case (supra) as under:-
"7. ... Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the petitioners moving the contempt petition. In support of this contention reliance has been placed upon decisions of this Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly and Notified Area Council v. Bishnu C. Bhoi. There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief."
15. Hon'ble Supreme Court further held that in case direction given by the Court is without jurisdiction,then appeal shall lie to a Court normally exercising appellate jurisdiction, to quote relevant portion (supra) para 8:-
8. The learned counsel for the employees in some of the appeals, submit that the Division Bench has held that no appeal would lie against the order of the Contempt Judge since no one was punished for contempt. We find the argument to be fallacious. If a direction is given by a court without jurisdiction, against such order an appeal would lie to a court normally exercising the appellate jurisdiction. Secondly, this ground loses importance in view of the fact that in some of the matters the authorities and the State have filed appeals directly against the order passed by the learned Judge disposing of contempt matter, directing the authorities and the State Government to sanction the posts. No such direction could be given in contempt proceedings."
16. A Division Bench of this Court in a case reported in 2002 (20) LCD 287:M/s. Gokul Dairy and others. Vs. State of U.P.and others, held that where a contempt proceeding is initiated by Single Judge without having jurisdiction conferred by Chief Justice, it shall amount to an extent of action taken without jurisdiction and in such situation, special appeal shall lie under Chapter VIII Rule 5 of the Rules of Court.
17. Keeping in view the proposition of law discussed hereinabove, there appears to be no room of doubt that once contempt proceeding was dropped and contemnor was discharged, it was not open for the Contempt Judge to review his own order after entertaining the miscellaneous application for modification of final judgment. Since accused were discharged (supra) and proceeding was closed, the miscellaneous application for modification was not maintainable. Thus, Contempt Judge seems to have passed the impugned order without jurisdiction. Since the Contempt Judge exercised jurisdiction without any authority, the special appeal seems to be maintainable. Arguments advanced by the learned counsel for the respondents with regard to maintainability of special, seems to be misconceived and is not sustainable.
18. Of course, in case the Contempt Judge would have summoned the appellant while exercising original jurisdiction in contempt petition or would have passed some other order while discharging or hearing statutory application, then in such a situation, the special appeal under Chapter VIII Rule 5 of the Rules of Court, would not have been maintainable. After final adjudication of controversy, and delivery of judgment since the Contempt Judge has acted without jurisdiction, the special appeal seems to be maintainable.
19. It is not so that respondent petitioner is remediless. Instead of moving a miscellaneous application for modification of order, the respondent petitioner could have filed fresh contempt petition on account of alleged violation of undertaking given before the Court as it constitute fresh cause of action or an application under Article 215 of Constitution of India could have been moved for action and punishment by the appropriate Court on account of violation of undertaking given and relied upon by the Court while discharging contemnor.
20. Learned counsel for the parties have cited some other judgment to make out a case against each other. It is not necessary to consider all those judgment since the controversy in question may be adjudicated in a narrow compass after considering some of relevant cases referred by the parties in the manner discussed hereinabove. In view of the above, special appeal deserves to be allowed.
21. Accordingly, the special appeal is allowed. The impugned orders dated 15.3.2013, 2.4.2013, 16.4.2013, 13.5.2013 and 17.5.2013 passed in Criminal Misc. Case No.1853 (C) of 2012 are hereby set aside with liberty to respondent Committee of Management to proceed afresh in accordance with law if so advised.
[Justice Uma Nath Singh, J.] [Justice Devi Prasad Singh, J.] Judgment Delivered on :-31.7.2013 Rajneesh DR-PS)