Allahabad High Court
Rajeev Pandey And Another vs Prem Shankar on 9 May, 2022
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 135 of 2022 Appellant :- Rajeev Pandey And Another Respondent :- Prem Shankar Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Krishna Kant Mishra Hon'ble Pritinker Diwaker,J.
Hon'ble Ashutosh Srivastava,J.
This Intra Court Appeal has been filed questioning the legality, propriety and correctness of the order dated 10.3.2022 passed by the learned Single Judge in Contempt Application (Civil) No. 5344 of 2021 (Prem Shanker vs. Rajeev Pandey, Special Land Acquisition Officer/City Magistrate, Bareilly and another) whereby and whereunder exercising powers under the Contempt of Courts Act, 1971, the learned Single Judge, holding that prima facie a case for contempt is made out, has directed the appellants herein to appear in person before him to show cause as to why the contempt proceedings may not be initiated against them for alleged violation of the order dated 30.7.2019 passed in Writ-C No. 17534 of 2019.
It is vehemently contended on behalf of the appellants that the order passed by the learned Single Judge is legally not sustainable as it exceeds the jurisdiction conferred under the Contempt of Courts Act, 1971. The Writ Court vide its order dated 30.7.2019 had disposed of the writ petition with the liberty to the petitioner to file a fresh representation ventilating all his grievances which he had taken in the writ petition before the appellant No.1, Special Land Acquisition Officer/City Magistrate, Bareilly, who in turn was directed to consider and decide the same strictly in accordance with law by a speaking and reasoned order within a period of three months from the date of filing the representation before him. The appellant No.1 in compliance of the direction of the Writ Court passed a detailed / reasoned order dated 26.10.2020 deciding the claim of the writ petitioner. The writ petitioner, instead of assailing the validity and correctness of the order dated 26.10.2020 in appropriate proceedings, chose to invoke the contempt jurisdiction and the learned Single Judge travelling beyond the order of the Writ Court of which the breach was complained has proceeded to pass the impugned order. The learned Single Judge has traversed beyond the order of the Writ Court and the impugned order is totally uncalled for and unwarranted. The contempt jurisdiction ought not to have been exercised as there is no deliberate and wilful disobedience of the order of the Writ Court. It is accordingly prayed that the impugned order of the learned Single Judge is liable to be set aside and the contempt petition itself be dismissed. Reliance has been placed on the decisions of this Court dated 17.2.2014 passed in Special Appeal Defective No. 77 of 2014; Decision dated 27.10.2015 passed in Special Appeal Defective No. 707 of 2015; Decision dated 12.2.2020 passed in Special Appeal No. 1225 of 2019; and decision of the Apex Court reported in 2006 (5) SCC 399 (Midnapore Peoples' Coop Bank Ltd. And others vs. Chunilal Nanda and others).
A preliminary objection as regards the maintainability of the Intra Court Appeal has been raised by the learned counsel representing the applicant/respondent. He submits that the order of the learned Single Judge merely requires the personal presence of the appellants to answer the show cause as to why contempt proceedings may not be initiated against them. Such an order being purely interlocutory and not affecting the rights of the appellants in terms of framing a charge or punishing them for contempt, an appeal under Chapter 8 Rule 5 of the Rules of the Court may not lay. The appeal is thus liable to be dismissed at the threshold. Reliance has been placed on the decision dated 13.7.2020 passed in Special Appeal No. 262 of 2020. Reliance is also placed on the decision of the Punjab & Haryana High Court dated 20.5.1994 passed in Shri A.S. Chatha vs. Malook Singh and others as also of the High Court of Andhra Pradesh : Amaravati dated 15.9.2021 passed in Pola Bhaskar vs. Shaik Shain Bi and others.
We have heard the learned counsel for the parties and have perused the record. The moot question for decision in this Appeal is regarding the maintainability of the Intra Court Appeal under Chapter 8 Rule 5 of the Rules of the Court against an order of Contempt Court issuing notice to the opposite party to appear in person before the Court to show cause as to why contempt proceedings be not drawn against the opposite party and as to whether a Contempt Court can go behind the order of the Writ Court so as to enlarge the scope of the contempt jurisdiction.
At this juncture, for proper appreciation of the issue involved, it would be trite to reproduce the provision of Chapter VIII Rule 5 of the Rules of the Allahabad High Court Rules under which the present appeal has been filed.
"5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction 66[or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
In order to answer the above question, it would be necessary to bear in mind the basic parameters governing the exercise of the contempt jurisdiction. The High Court, when it exercises jurisdiction to punish for a breach or disobedience of its order, has to first and foremost have due regard to the directions which were issued and of which breach is complained of. It is trite law that under the exercise of contempt jurisdiction, the High Courts cannot go into the merits of the order of which a breach is complained of, or for that matter, decide upon issues which are left undecided. Orders supplemental to what has been decided by the order of which breach is complained, cannot be issued in exercise of contempt jurisdiction. Rather what needs to be considered is whether there has been compliance of the direction(s) issued in the judgement or order in its letter and spirit. In considering this question, the Courts are expected to examine the conduct of the party alleged to be acting in contempt of the direction(s) of the Court. It is to be borne in mind that the contempt jurisdiction of the Courts serves a sacrosanct purpose of ensuring that the majesty and dignity of the Courts of law is always upheld. To ensure that the utmost respect which the Courts command is not whittled down, care must be had that judgements and orders of the Courts inspire confidence and it can only be done when these very judgements and orders are given effect to. With that said, the principles relating to civil contempt have been enunciated in several decisions of the Apex Court.
In Jhareswar Prasad Paul vs. Tarak Nath Ganguly [2002 (5) SCC 352], the principle was enunciated in the following observation made in Para-11 as under:
"The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order."
The same principle was reiterated in the judgement rendered in the case of Director of Education, Uttaranchal and others vs. Ved Prakash Joshi and others, reported in 2005 (6) SCC 98 by the following observations:
"The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible."
Again in the case of Sudhir Vasudeva, Chairman & M.D. ONGC & others vs. M. George Ravishekaran and others (Civil Appeal No. 1816 of 2014) decided on 4.2.2014, the Apex Court held as follows:-
"The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to betaken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others [(2002) 5 SCC 352], V.M.Manohar Prasad vs. N. Ratnam Raju and Another [(2004) 13 SCC 610], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others [(2008) 5 SCC 339] and Union of India and Others vs. Subedar Devassy PV [(2006) 1 SCC 613]. "
Yet again the Apex Court while reiterating the principle that in exercise of the contempt jurisdiction, the order of the Court of which a breach is complained of, has to be read and interpreted as it is and not as it should be and the Court cannot take a different view in exercise of the contempt jurisdiction on the merits of the case and cannot make either an addition or deletion from the original order of the Court, made the following observation in the case of Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and others, reported in 2008 (5 ) SCC 339 as under:-
"30. Parameters of the jurisdiction of this Court under the Contempt of Courts Act, 1970 are well settled.
31. While dealing with such an application, the court is concerned primarily with:
(i) whether the order passed by it has attained finality or not;
(ii) Whether the same is complied with or not.
32. While exercising the said jurisdiction this Court does not intend to reopen the issue which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction."
Further, in the judgement in the case of Union of India vs. Subedar Devassy, reported in (2006) 1 SCC 613, the Supreme Court observed as under:-
"While dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision whicgh had not been assailed and to take a view different from what was taken in the earlier decision. A similar view was taken in K.G. Derasari v. Union of India, [2001] 10 SCC 496. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Though strong reliance was placed by learned counsel for the appellants on a three-Judge Bench decision in Niaz Mohd. v. State of Haryana, [1994] 6 SCC 332 we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the appellants, the least it could have done was to assail correctness of the judgment before the higher court.
The above position was highlighted in Prithawi Nath Ram v. State of Jharkhand and Ors., [2004] 7 SCC 261.
On the question of impossibility to carry out the direction, the views expressed in T.R. Dhananjaya v. J. Vasudevan, [1995] 5 SCC 619 need to be noted. It was held that when the claim inter se had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and truncate the effect thereof by hovering over the rules to get around the result, to legitimise legal alibi to circumvent the order passed by a court.
In Mohd. Iqbal Khanday v. Abdul Majid Rather, [1994] 4 SCC 34, it was held that if a party is aggrieved by the order, he should take prompt steps to invoke appellate proceedings and cannot ignore the order and plead about the difficulties of implementation at the time contempt proceedings are initiated.
If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible."
The Apex Court while emphasising the principle that before a Court punishes a contemner for non-compliance of a direction, the Court must be satisfied that disobedience of the judgement, decree, direction or writ was wilful or intentional in the case of Niyaj Mohammad vs. State of Haryana [1994 (6) SCC 332] held as under:-
"Before a contemner is punished for non compliance of the direction of a court the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. The Civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequences thereof. But wile examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was willful and intentional. If from the circumstances of a particular case, brought to the notice of the court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner."
Then again while emphasising the principle that the jurisdiction to punish for contempt has to be cautiously exercised and cannot be a substitute for the execution of an order of the Court, the Apex Court in the case of R.N. Dey vs. Bhagyabati Pramanik [2002 (4) SCC 400] made the following observation:-
"......But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is nullity. In such a situation, as there was no willful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified."
The Apex Court in the case of Midnapore Peoples' Coop Bank Ltd. And others vs. Chunilal Nanda and others [(2006) 5 SCC 399], while considering a case where the High Court, in a contempt proceeding, renders a decision on merits of a dispute between the parties, either by an interlocutory order or final judgement, the question whether the same would be appealable under Section 19 of the Contempt of Courts Act, 1971 and if not what would be the remedy of the person aggrieved, held that any direction issued or decision made by the High Court in contempt proceedings on the merits of a dispute between the parties, unless the same is incidental to or inextricably connected with the order punishing for contempt, would not be in the exercise of "jurisdiction to punish for contempt" and therefore, would not be appealable under Section 19 of the Act, 1971. Such an order, passed by the Contempt Court, was held, amenable to a challenge in an intra Court Appeal under the relevant rules of the High Court. The position with regard to filing of appeals against orders in contempt proceedings were summarized thus:-
"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus :
I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of ''jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)."
Now applying the principles as culled out from the various decisions referred to above to the case at hand, we find that the learned Single Judge while exercising the contempt jurisdiction has clearly transgressed the powers conferred upon him. The operative portion of the order of the Writ Court which is alleged to have been breached reads as under:-
"In view of the above, without expressing any opinion on the merits of the case, we dispose of this writ petition with liberty to the petitioner to file a fresh comprehensive representation ventilating all his grievances which he has taken by him in this writ petition before the respondent no. 2, Special Land Acquisition Officer, Bareilly within a period of two weeks from today along with certified copy of this order and in case any such representation is filed by the petitioner before the respondent no. 2 within the time indicated hereinabove, he shall consider and decide the same strictly in accordance with law by a speaking and reasoned order as expeditiously as possible preferably within a period of three months from the date of filing of such representation by the petitioner before him. "
A perusal of the above reveals that the Writ Court required the writ petitioner/applicant/respondent to prefer a comprehensive representation ventilating his grievances before the Special Land Acquisition Officer, Bareilly, who in turn was directed to decide the same strictly in accordance with law by a speaking and reasoned order expeditiously within three months. The above order of the Writ Court does not bear reference to any Government Order dated 19.3.2015 or to the fact that the compensation was required to be determined in terms of the said Government Order. The Special Land Acquisition Officer, in compliance of the order of the Writ Court, vide order dated 26.10.2020 has decided the representation of the writ petitioner holding him entitled to compensation for the land utilised and the onus to compute and pay the compensation has been fixed upon the PWD Department. The matter thereafter was referred to a Committee headed by the Additional District Magistrate, Bareilly which was required to determine the rate on which the amount of compensation was to be determined. The Committee vide its decision dated 17.1.2022 determined the rate of Rs. 704.54 per sq. meters for the land utilised. The learned Single Judge while exercising the powers of a Contempt Court taking note that the compensation has been determined by the Committee by its order dated 17.1.2022 has recorded finding that prima facie a case for contempt is made out as the order of the Committee is in the teeth of the order of the Writ Court.
In our view, the scope of contempt jurisdiction is to see whether the order of the Writ Court has been complied with in substance or deliberately flouted leading to an inference of a "wilful, deliberate and contumacious" violation of the order of which non compliance is alleged. In the case at hand where the direction is only to dispose of the representation by a speaking order, the correctness, legality or propriety of the order passed in compliance of the direction cannot be gone into in contempt proceedings. The correctness or otherwise of the order passed in compliance of the direction of the Writ Court, if required may be tested in appropriate proceedings but certainly not in contempt proceedings.
Once the direction as contained in the judgement and order dated 30.7.2019 passed in Writ-C No. 17534 of 2019 (Prem Shankar vs. State of U.P. and 3 others) had been complied with culminating into an order dated 26.10.2020 passed by the Special Land Acquisition Officer, Bareilly and determination of compensation by the Committee by an order dated 17.1.2022, passing of the order by the learned Single Judge dated 10.3.2022 giving rise to the instant appeal could possibly not have risen in contempt jurisdiction. The order dated 10.3.2022 passed by the learned Single Judge results in expanding the scope of contempt jurisdiction by going behind the direction contained in the order of the Writ Court dated 30.7.2019 contempt, of which, is alleged. If the writ petitioner/applicant/respondent was not satisfied, his remedy lay elsewhere but certainly not by invoking the contempt jurisdiction under Section 12 of the Contempt of Courts Act, 1971.
The case laws relied upon by the counsel for the appellants propound the above position of the law. The case laws relied upon by the learned counsel for the applicant (writ petitioner)/respondent deal with the maintainability of an appeal under Section 19 of the Contempt of Courts Act, 1971, and the instant Special Appeal has been preferred under Chapter VIII Rule 5 and thus, they are not applicable to the case at hand. As regards the decision dated 13.7.2020 passed in Special Appeal No. 262 of 2020 the same in our opinion was passed under circumstances peculiar to that case and the learned Bench opined that the order impugned was merely of a procedural nature and did not in any manner touch the merits of the controversy or dispute between the parties so as to be deemed to have been issued under Article 226 of the Constitution of India. This is not the position in the case at hand.
In view of the above, while holding the Intra Court Appeal to be maintainable, we set aside the order dated 10.3.2022 passed by the learned Single Judge in Contempt Application (Civil) No. 5344 of 2021 (Prem Shankar vs. Rajeev Pandey, Special Land Acquisition Officer/City Magistrate, Bareilly and another) and dismissing the Contempt Application. Accordingly, the impugned order dated 10.3.2022 is set aside and the Contempt Application (Civil) No. 5344 of 2021 is dismissed.
The Intra Court appeal is allowed.
Order Date :- 9.5.2022
Vandana
(Ashutosh Srivastava,J.) (Pritinker Diwaker,J.)