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2014 DIGILAW 17 (GAU)

JAGO MOHAN BASUMATARY v. P. P. VERMA

2014-01-06

A.M.SAPRE, UJJAL BHUYAN

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JUDGMENT (AM Sapre, CJ) This is an appeal filed by the applicant/petitioner under Section 19 (1) of the Contempt of Courts Act, 1971 (for short hereinafter called “the Act” ) against the order dated 27.9.2013 passed by the Single Judge in Cont. Case(C) 355/2013. By the impugned order, the learned Single Judge dismissed the contempt application filed by the appellant. Facts of the case are these:- The appellant had filed one writ petition being WP(C) 2509/2013 claiming certain reliefs therein against the respondents. The said writ petition was disposed of by the writ court (Single Judge) by order dated 13.5.2013 by giving certain directions therein. The appellant then filed the contempt application out of which this appeal arises complaining therein that the directions/ writs issued by the writ court in its order dated 13.5.2013 are not complied with and, hence, the alleged contemnor against whom the contempt application was filed be punished suitably under the provisions of the Act read with Article 215 of the Constitution of India and appropriate orders be accordingly passed against them as are permissible in law. The learned Single Judge by the impugned order dismissed the contempt application filed by the appellant (writ petitioner) which has now given rise to filing of this appeal under Section 19 (1) by the writ petitioner. On 8.11.2013, when the appeal came up for hearing on the question of admission, this court passed the following order :- “This is an appeal filed by the appellant under Section 19(1)(a) of the Contempt of Courts Act, 1971 against an order passed by the learned Single Judge in exercise of the powers conferred under the Contempt of Courts Act whereby the learned Single Judge dismissed the contempt petition filed by the appellant which arose out of the main order passed by the learned Single Judge in his writ jurisdiction on 13.05.2013 in WP(C) No.2509 of 2013. The question that may arise for consideration in this appeal is as to whether appeal filed by the appellant under Section 19(1)(a) of the Act is maintainable against the impugned order in the light of the law laid down by the Supreme Court in a case reported in (1988) 3 SCC 26 (D.N.Taneja vs. Bhajan Lal) and particularly keeping in view the observations made by their Lordships in para 12 of the said judgment. Since the issue relates to the maintainability of the appeal and goes to the very root of the matter, we grant some time to the counsel appearing for the appellant to address the court on this issue on the next date of hearing. Counsel for the appellant prays that since he is an outstation counsel, some long adjournment may be granted to him. We concede to his request and accordingly fix the case for admission hearing on the question of maintainability of the appeal on 6th of January, 2014.” Today we heard the learned counsel for the appellant (writ petitioner ) at length (almost for three hours, if not more at his request) and gave him fullest opportunity to address the court on the question of maintainability of the appeal filed by the appellant under Section 19 (1) ibid against the order dismissing appellant’s contempt petition by the Single Judge but despite having heard him at length, we have no hesitation in holding that this appeal is not maintainable under Section 19 (1) ibid in the light of law laid down by the Supreme Court in the case reported in 1988 (3) SCC 26 (D.N.Taneja vs. Bhajan lal). In somewhat similar facts, the question arose before the Supreme Court as to whether appeal filed under Section 19(1 ) of the Act before the Supreme Court against the order dismissing the contempt application is maintainable or not ? Their lordships after examining the object and scope of Section 19 of the Act in no uncertain terms held that no appeal lies under Section 19(1) against an order dismissing the contempt application. It is apposite to quote the relevant Paras from the judgment of the Supreme Court in the case of D.N.Taneja (supra) “4. Thereafter, the appellant filed an application for contempt against the respondent, Bhajan Lal, in the High Court complaining of interference by the respondent with the due course of judicial proceedings. The application was admitted and a rule nisi was issued upon the respondent. The respondent appeared in the rule and opposed the same by filing an affidavit denying all the allegations made against him by the appellant. 5. The application was admitted and a rule nisi was issued upon the respondent. The respondent appeared in the rule and opposed the same by filing an affidavit denying all the allegations made against him by the appellant. 5. The learned Single Judge of the High Court, after considering the application, affidavits and the submissions made on behalf of the parties, took the view that there were circumstances to indicate that it was not a fit case in which the court should exercise its jurisdiction under the Act. In that view of the matter, the learned Judge dismissed the application and discharged the rule nisi. 8. The right of appeal will be available under sub-section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Article 215 of the Constitution which provides that every High Court shall be a Court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. As has been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution. 10. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution. 10. There can be no doubt that whenever a court, tribunal or authority is vested with a jurisdiction to decide a matter, such jurisdiction can be exercised in deciding the matter in favour or against a person. For example, a civil court is conferred with the jurisdiction to decide a suit; the civil court will have undoubtedly the jurisdiction to decree the suit or dismiss the same. But when a court is conferred with the power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve the acting in that particular manner and in no other. Article 215 confers jurisdiction or power on the High Court to punish for contempt. The High Court can exercise its jurisdiction only by punishing for contempt. It is true that in considering a question whether the alleged contemnor is guilty of contempt or not, the court hears the parties and considers the materials produced before it and, if necessary, examines witnesses and, thereafter, passes an order either acquitting or punishing him for contempt. When the High Court acquits the contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution. 11. It does not, however, mean that when the High Court erroneously acquits a contemnor guilty of criminal contempt, the petitioner who is interested in maintaining the dignity of the court will be without any remedy. Even though no appeal is maintainable under Section 19(1) of the Act, the petitioner in such a case can move this court under Article 136 of the Constitution. Therefore, the contention, as advanced on behalf of the appellant, that there would be no remedy against the erroneous or perverse decision of the High Court in not exercising its jurisdiction to punish for contempt, is not correct. Therefore, the contention, as advanced on behalf of the appellant, that there would be no remedy against the erroneous or perverse decision of the High Court in not exercising its jurisdiction to punish for contempt, is not correct. But, in such a case there would be no right of appeal under Section 19(1), as there is no exercise of jurisdiction or power by the High Court to punish for contempt. The view which we take finds support from a decision of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra (1975) 3 SCC 535 . 12. Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first time that under Section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor. It may be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court.” In our considered view, the law laid down in Taneja’s case supra applies with full force to the facts of this case and we find no distinguishing feature either on facts or in law for holding that the appeal filed under Section 19 (1) of the Act is maintainable. In other words, we have no hesitation in holding that this appeal is not maintainable. It is for the reason that in this case also the impugned order against which the appeal is filed resulted in dismissal of the contempt application filed by the appellant. In other words, we have no hesitation in holding that this appeal is not maintainable. It is for the reason that in this case also the impugned order against which the appeal is filed resulted in dismissal of the contempt application filed by the appellant. Such order in our opinion, in the light of the law laid down in Taneja’s case (supra) cannot be appealed against by filing an appeal by the petitioner of contempt petition under Section 19 (1) ibid. In other words, only those orders which results in award of punishment to the contemnor can be appealed against in an appeal under Section 19 (1) but not the one which results in dismissal of the contempt application. Learned counsel for the appellant was not able to point out any distinguishing feature in Taneja’s case to show how and why it is not applicable to the facts of this case and whatever distinguishing features which he tried to show to us from the decision, we are not at all impressed by the same. As a matter of fact, they do not deserve to be taken note of. Learned Counsel for the appellant then went on to argue the entire appeal on merits as if we have held the appeal to be maintainable but in the light of our finding given above that the appeal is not maintainable, we are afraid we can enter into the merits of the controversy raised in the appeal. Once we hold that the appeal is not maintainable then law does not permit us to go into the merits of the controversy by assuming jurisdiction, which we do not possess- how so ever good the case of the appellant may be on merits. Learned counsel for the appellant cited several cases reported in (1997) 7 SCC 438 , (1994) 4 SCC 434 , (1999) 8 SCC 473 , (2005) 2 SCC 409 , (2010) 11 SCC 493 , (2009) 5 SCC 417 , (2002) 2 SCC 578 , (2011) 5 SCC 708 , (2004) 8 SCC 683 , 1991 Supp(1) SCC 167, 1991 Supp (1) SCC 209 and 1988(3) SCC 26 . We have gone through each case cited by the appellant. We have gone through each case cited by the appellant. Having gone through the same, we consider it apposite to state that all the decisions cited by the learned counsel for the appellant are clearly distinguishable on facts and in law and do not decide the issue in relation to the maintainability of the appeal filed under Section 19(1) of the Act. He however did not dispute that the law laid down by the Supreme Court in the case of Taneja (Supra) still holds the field and is not overruled by any subsequent decision of the Supreme Court. It is for this reason, we do not wish to burden our order by increasing its length by mentioning the distinguishable features of each case. It is really not necessary. When the issue involved in this appeal is squarely covered by the decision of the Supreme Court, then, it is our duty to follow such law in letter and spirit. In the light of the foregoing discussion, we hold that this appeal filed by the appellant under Section 19 (1) of the Act against the order dismissing contempt application is not maintainable before this court and hence it is dismissed as not maintainable. No cost.