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2013 DIGILAW 887 (ALL)

MOHD. SHAMEEM v. PRADEEP KUMAR - UPPER NAGAR AYUKT, NAGAR NIGAM,ALLAHABAD

2013-03-19

SURENDRA KUMAR, VINOD PRASAD

body2013
Surendra Kumar J. This contempt appeal, u/s 19 of Contempt Of Courts Act, 1971, hereinafter referred to as the Act, emanates against the judgement and order dated 26.2.2013 passed by learned single Judge of this court in Civil Misc. Contempt Application No. 881 of 2013, between Mohd. Shameem versus Pradeep Kumar and another whereby learned single Judge has refused to draw contempt proceedings against the respondents u/s 12 of the Act, who are Up Nagar Ayukta, Nagar Nigam, Allahabad and Encroachment- In-Charge, Nagar Nigam, Allahabad and has dismissed aforementioned contempt application moved by the appellantpplicant/petitioner. Ab-initio we reproduce the impugned judgement and order herein below:- "Heard learned counsel for the applicant and perused the record. This contempt petition has been filed with the allegation that despite the order dated 8.2.2013 the opposite parties have demolished the constructions of the applicant. From the record, it appears that the demolitions were made prior to it and therefore, it cannot be said that there is any wilful or deliberate violation. Accordingly no case for contempt is made out. Rejected." From the background facts as are gestated and gathered from the pleadings made in this appeal, it emerges that a Civil Misc. Writ Petition No. 4799 of 2013, Mohd. Shameem versus State of U.P. and Others, U/A 226 of the Constitution Of India, was filed by the petitionerpplicantppellant, which came up for admission before a Division Bench of this court on 6.2.2013. Arguendo the aforesaid writ petition the Bench detected misrepresentation of facts, which it has slated in it's order dated 6.2.2013. However, by the said and subsequent order dated 8.2.2013, finally disposing of aforesaid writ petition, on facts, the Hon'ble Judges found that one Mohd. Iqbal was leased out 600 Sq. feet of land by Nagar Nigam Allahabad through a registered lease deed dated 21st November 1985, for a period of thirty years starting from 17th September 1985 with an yearly rent of Rs. 25.12/=. The appellantpplicant/petitioner is a vendor of the leased premises from the lessee vendee aforementioned Mohd. Iqbal through a duly registered sale deed dated 20th September 1994.Subsequent to the execution of the sale deed referred to hereinbefore appellantpplicant got one building plan prepared for constructing a residential dwelling unit over an area of 30x 20 ft. and in fact the appellant petitioner did construct a shop over it. Iqbal through a duly registered sale deed dated 20th September 1994.Subsequent to the execution of the sale deed referred to hereinbefore appellantpplicant got one building plan prepared for constructing a residential dwelling unit over an area of 30x 20 ft. and in fact the appellant petitioner did construct a shop over it. However it seems that since the petitioner had raised constructions over and above the purchased premises/leased area, therefore Nagar Nigam issued him a show cause notice of demolition dated 16.1.2013, which was received to the appellant/petitionerpplicant on 21.1.2013. Challenging the said notice petitionerppellantpplicant approached this court in Civil Misc. Writ Petition No. 4799 of 2013, Mohd. Shameem versus State of U.P. and Others, and intimated the Nagar Ayukta( Municipal Commissioner) about the same vide his letter dated 28.1.2013( annexure no.4). It further transpires that when the aforementioned writ petition by the petitioner came up for admission on 6.2.2013, a Division Bench of this court passed following order vide annexure no.1 to the affidavit annexed with this appeal- "Learned counsel for the petitioner has submitted that the petitioner acquired right and possession over the concerned premises being used as a shop on the basis of a registered sale deed dated 20th September, 1994. A photostat copy of the said sale deed has been annexed as Annexure-1 to the writ petition. This Court would like to examine the original copy of the said sale deed on the next date. The recital in Annexure-1 is to the effect that Mohd. Iqbal purchased the land in question from the Nagar Nigam Allahabad but the details of that sale deed in favour of the petitioner's vendor Mohd. Iqbal is not indicated in Annexure-1. On query, learned counsel for the petitioner has fairly submitted that the said recital is not accurate and infact Mohd. Iqbal got possession over the land on the basis of a registered deed of lease dated 21st November, 1985 for a period of thirty years starting from 17th September, 1985 on a yearly rental of Rs.25.12. A photostat copy of the said deed of lease has been produced in course of arguments. Learned counsel for the Nagar Nigam Allahabad has rightly insisted that the copy of the lease deed in favour of the vendor of the petitioner Mohd. Iqbal should be brought on record through a supplementary affidavit. Let that be done by the next date. A photostat copy of the said deed of lease has been produced in course of arguments. Learned counsel for the Nagar Nigam Allahabad has rightly insisted that the copy of the lease deed in favour of the vendor of the petitioner Mohd. Iqbal should be brought on record through a supplementary affidavit. Let that be done by the next date. List the matter in the supplementary list of fresh cases on 8th February, 2013. Copy of the supplementary affidavit should be served on learned counsel for the Nagar Nigam Allahabad by tomorrow. Till day after tomorrow i.e. 8th February, 2013, status quo shall be maintained with regard to the petitioner's premises." However, petitioner's aforesaid writ petition was finally disposed of on 8.2.2013 by the same Division Bench by passing following order, vide annexure no. 2, to the aforementioned affidavit- "Learned counsel for the petitioner has submitted that the petitioner acquired right and possession over the concerned premises being used as a shop on the basis of a registered sale deed dated 20th September, 1994. A photostat copy of the said sale deed has been annexed as Annexure-1 to the writ petition. This Court would like to examine the original copy of the said sale deed on the next date. The recital in Annexure-1 is to the effect that Mohd. Iqbal purchased the land in question from the Nagar Nigam Allahabad but the details of that sale deed in favour of the petitioner's vendor Mohd. Iqbal is not indicated in Annexure-1. On query, learned counsel for the petitioner has fairly submitted that the said recital is not accurate and infact Mohd. Iqbal got possession over the land on the basis of a registered deed of lease dated 21st November, 1985 for a period of thirty years starting from 17th September, 1985 on a yearly rental of Rs.25.12. A photostat copy of the said deed of lease has been produced in course of arguments. Learned counsel for the Nagar Nigam Allahabad has rightly insisted that the copy of the lease deed in favour of the vendor of the petitioner Mohd. Iqbal should be brought on record through a supplementary affidavit. Let that be done by the next date. List the matter in the supplementary list of fresh cases on 8th February, 2013. Copy of the supplementary affidavit should be served on learned counsel for the Nagar Nigam Allahabad by tomorrow. Iqbal should be brought on record through a supplementary affidavit. Let that be done by the next date. List the matter in the supplementary list of fresh cases on 8th February, 2013. Copy of the supplementary affidavit should be served on learned counsel for the Nagar Nigam Allahabad by tomorrow. Till day after tomorrow i.e. 8th February, 2013, status quo shall be maintained with regard to the petitioner's premises." It is categorical assertion of the appellant that order dated 6.2.2013, passed by the Bench was served on respondent authorities on 8.2.2013, vide pleadings made in para 6 of appellant's affidavit annexed with the memo of appeal. What transpires is that meanwhile respondent authorities, so called respondent contemnors, demolished encroached portions of appellant's premises regarding which photographs have been appended as annexure no.3 to the affidavit. Since a portion of the premises/shop of the petitionerppellantpplicant was razed to the ground that the action of the respondents compelled the petitionerppellant to take recourse to the present contempt proceedings by invoking this court's power U/Ss 11/12 of the Act and that is how Civil Misc. Contempt Application No. 881 of 2013 Mohd. Shameem versus Pradeep Kumar, Up Nagar Ayukta, Nagar Nigam, Allahabad came to be filed before the learned single Judge of this court u/s 12 of the Act. Recapitulating earlier statement of fact since the learned single Judge refused to initiate contempt proceedings against the wrong doers by passing the impugned order on 26.2.2013, which in the estimation of the appellant/petitionerpplicant is an illegal abdication of power by the learned single Judge, that this appeal has been preferred by the applicantppellant challenging the said order dated 26.2.2013. A priory, the question of maintainability of this appeal cropped up during hearing on the admission of the appeal, as it was argued that no appeal u/s 19 of the Act is maintainable against refusal to initiate a contempt proceeding by the learned single Judge. Attention was also drawn to the reporting section's note which has also inked that this appeal is not maintainable. We, therefore have heard appellant's counsel on that preliminary issue of maintainability of this appeal, as any negation of appellant's contention regarding the same and deciding the same against him would have closed the chapter for him. Attention was also drawn to the reporting section's note which has also inked that this appeal is not maintainable. We, therefore have heard appellant's counsel on that preliminary issue of maintainability of this appeal, as any negation of appellant's contention regarding the same and deciding the same against him would have closed the chapter for him. Sri Lallan Chaubey, learned appellant's counsel contended before us that since the learned single Judge has eschewed to notice that the contempt application was filed against the infringement of the order dated 6.2.2013, therefore he committed ex facie error in rejecting appellant's contempt application by observing that there was no wilful or deliberate violation of the order passed by this court. It was further urged that since Nagar Nigam had it's own counsel therefore it committed contempt in demolishing a portion of appellant's premises on 8.2.2013. Arguing further it was submitted that the appeal against the impugned order is maintainable because of the aforesaid reason and on that aspect reliance was placed on an apex court decision in Modi Telefibers Ltd. Versus Sujit Kumar Chaudhary:( 2005) 7 SCC 40 . Relying heavily on the aforesaid decision it was contended that the instant appeal is maintainable. Learned Standing counsel however submitted to the contrary and refuted appellant's contentions. Before adverting to the appellant's submissions and pondering over the question of maintainability it will be appropriate, both factually and contextually to have a glimpse of the relevant enactments and we undertake that course. Section 2 ( b) of the Act defines "civil contempt" thus- "Section 2( b)- "civil contempt" means wilful disobedience to any judgment, \decree, direction, order, writ or other process of a court or wilful breach on an undertaking given to a court." Section 2 ( d) of the Act defines "High Court" as under - "Section 2( d)- "High Court" means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory." Section 10 read with section 11 of the Act confers power on the High Court to punish a contemnor for it's contempt or contempt of it's subordinate courts and reads thus- "10. Power of High Court to punish contempts of subordinate courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable unde the India Penal Code ( 45 of 1960). 11. Power of High Court to try offences committed or offenders found outside jurisdiction.- A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits." Section 12 of the Act provides for the quantum of punishment which could be awarded in a proved contempt. For the sake of brevity, eschewing other provisions of the Act, as they are not relevant to the query at hand, it is to be noted that an order u/s 12 of the Act has been made appealable u/s 19 of the Act, which ordains as under- "19. Appeals.- ( 1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt- ( a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; ( b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. ( 2) Pending any appeal, the appellate Court may order that- ( a) the execution of the punishment or order appealed against be suspended; ( b) if the appellant is in confinement, he be released on bail; and ( c) the appeal be heard notwithstanding that the appellant has not purged his contempt. ( 2) Pending any appeal, the appellate Court may order that- ( a) the execution of the punishment or order appealed against be suspended; ( b) if the appellant is in confinement, he be released on bail; and ( c) the appeal be heard notwithstanding that the appellant has not purged his contempt. ( 3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section ( 2). ( 4) An appeal under sub-section ( 1) shall be filed- ( a) in the case of an appeal to a Bench of the High Court, within thrity days; ( b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order apppealed against. It is this section 19 of the Act which has to be dissected and examined critically to find out an answer to the cropped up legal question. An exercise in that area indicate that section 19, besides other aspects, talks of two important expressions one ''order and decision' and other ''in exercise of its jurisdiction to punish for contempt'. Analysing from a common man's parlance and read together these expressions indicate that an appeal shall lie as of a right only when High Court exercises its jurisdiction to punish a contemner for contempt and not otherwise and therefore only a step in that direction to punish for contempt is appealable u/s 19 of the Act. This view finds it's support when sub clause ( 2) of this section 19 is examined under principles of harmonious constructions, as it provides for suspension of punishment or order appealed against and of release from confinement. If the High Court does not initiate contempt proceedings, where is the question of suspension of execution of punishment or order appealed against or to release a person from confinement? The language and the manner in which section 19 has been enacted by the legislature leaves no manner of doubt that legislature never intended to make that order also appealable by which High Court has declined to draw a contempt proceedings against a juristic person. The language and the manner in which section 19 has been enacted by the legislature leaves no manner of doubt that legislature never intended to make that order also appealable by which High Court has declined to draw a contempt proceedings against a juristic person. At this stage we recollect that the above aspect has not attracted attention of the court for the first time but has been the subject matter of many a trite judicial pronouncements including those of apex court and consequently, we benefittigly recapitulate some of those binding precedents as under- In Midnapore Peoples' Co-op. Bank Ltd. and Ors. vs. Chunilal Nanda and Ors.: AIR 2006 SC 2190 it has been held by the apex court as under:- "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. 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). The first point is answered accordingly." In Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, C.J. of the Orissa H. C. : AIR 1974 SC 2255 it was held by the apex court as under:- "8. It is, therefore, clear that the order made by the Full Bench of the Orissa High Court in the present case rejecting the motion made by the appellant and refusing to initiate a proceeding for contempt against the Chief Justice and other judge was not appealable under Section 19 , sub-section ( 1)." In J. S. Parihar vs. Ganpat Duggar and others: AIR 1997 SC 113 a full bench of Hon'ble Supreme Court has held as under:- "4. The question is : whether an appeal against the directions issued by the learned single Judge is maintainable under Section 19 of the Act ? Section 19 of the Act envisages that "an appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt where the order or decision is that of a single Judge, to a bench of not less than two Judges of the Court."Therefore, an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemner has been passed. In this case, the finding was that the respondents had not wilfully disobeyed the order. So, there is no order punishing the respondent for violation of the orders of the High Court. In this case, the finding was that the respondents had not wilfully disobeyed the order. So, there is no order punishing the respondent for violation of the orders of the High Court. Accordingly, an appeal under Section 19 would not lie." Besides above exposition of law by the apex court our court also had the occasion to consider the said aspect of the matter in Smt. Subhwanti Devi versus R.K.Singh: ( 2004) 3 AWC 2414 wherein a division bench of this court has held as under:- 20.From a plain reading of the aforesaid observation of the SupremeCourt, it is again clear that an appeal would lie under Section 19 of the Act when an order in exercise of the jurisdiction of the High Court punishing the contemnor has been passed. In that case also, a finding was that the respondents had not wilfully disobeyed the order, and accordingly, the Supreme Court held that there was no order punishing the respondents for violation of the order of the High Court and on that finding the Supreme Court held that the appeal did not lie. In the present case, the situation is similar. Here also after exercising the jurisdiction by the learned single Judge to punish for contempt, conclusion was arrived at that the respondents had not wilfully disobeyed the order and, therefore, there was no order punishing the respondents for violation of the order of the High Court and accordiingly, the appeal under Section 19 of the Act cannot be held to be maintainable. 21.In view of the aforesaid two recent decisions, we may safely conclude that the appeal against the impugned order is not maintainable in view of the admitted position in this case that by the impugned order the rule issued in contempt proceedings was discharged and the contempt petition was rejected as there was no wilful disobdience of the order in respect of which the contempt petition was filed. 22.For the reasons aforesaid and in view of our discussions made hereinabove, we are of the view that this appeal is into maintainable, in law. We now turn towards the decision cited by the appellant's counsel in Modi Telefibers ( Supra). The aforesaid decision is altogether on a different legal aspect. There the proceedings for contempt were already initiated and the date was fixed for purging the contempt or for determining quantum of punishment. We now turn towards the decision cited by the appellant's counsel in Modi Telefibers ( Supra). The aforesaid decision is altogether on a different legal aspect. There the proceedings for contempt were already initiated and the date was fixed for purging the contempt or for determining quantum of punishment. It was not a case where contempt proceeding was not at all initiated or after initiation was dropped. Thus the decision cited by appellant's counsel is wholly misplaced and is of no value to his submissions. Albeit it is not at all necessary for us after our aforesaid discussions, which unerringly precipitates an irresistible conclusion that the instant appeal is not maintainable but we cannot resist the temptation in observing that in a contempt proceedings we are not required nor it is legally permissible for us to judge the legality or sustainability of impugned order, which can be done only in a proper forum of writ or SLP before the apex court. While dealing with a contempt application we cannot go behind the impugned order and therefore we repel appellant's contentions on merits of the impugned order without deliberating over it any further, although we are also of the opinion that it was only after demolition that the order dated 6.2.2013 was taken recourse to. Otherwise also order passed in Civil Misc. Writ Petition could protect only that part of construction which was within the periphery of leased/sold premises and not to an encroachment outside it as is conspicuously perceivable from the order dated 8.2.2013. Parting with this order we express our dismay over the conduct of the appellant and his counsel in filing this appeal. Such type of unwarranted filing of petitions only pile up cases further mounting the backlog of cases in this court. It would have been better if this appeal would have attracted legal attention of the counsel and would have been rejected at learned advocate's desk itself and we say no more. This Contempt appeal is dismissed.