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2022 DIGILAW 147 (UTT)

Rajkumar Adlakha v. Cantonment Board Landour

2022-06-20

R.C.KHULBE, S.K.MISHRA

body2022
JUDGMENT : S.K. MISHRA, J. This matter is taken up on being referred by the learned Single Judge to the Larger Bench to answer the following two questions :- “1. As to whether while dismissing the contempt petition under Section 20 of the Contempt of Court’s Act for the same cause of action, whether the Court exercising its power under Section 12 of the Contempt of Court’s Act, can reserve a liberty to file a fresh writ petition for the same cause of action? 2. Whether as a consequence of the dismissal of the contempt petition under Section 20 of the Act, will not the order granting the liberty to file a fresh writ petition being in contradiction to the dismissal of the contempt under Section 20?” 2. Facts leading to this case are simple. The petitioner filed a Writ Petition (M/S) No.138 of 2018 by making a prayer to issue a writ of mandamus directing the respondent Nos.1 and 2 to allow the mutation application of the petitioner and to enter the name of the petitioner in the General Land Record as the owner of the property. The writ petition came up before the learned Single Judge on 11.01.2018, and the learned Single Judge disposed of the same on the first date itself by making following observations:- “According to learned counsel for the petitioner, petitioner made an application to the Defence Estate Officer (respondent no. 6) for mutation of a property situated in Landour Cantonment, Landour, Mussoorie which was gifted to him by the erstwhile owner in the year 1994. Learned counsel for the petitioner submits that such application for mutation was made on 20.08.1999 but no decision as been taken so far. He confines his prayer and submits that Competent Authority/Defence Estate Officer be directed to look into the matter and take appropriate decision on petitioner’s application. Prayer made by learned counsel for the petitioner is innocuous and deserves to be accepted. Accordingly, the writ petition is disposed of. Liberty is granted to the petitioner to make fresh representation to the Defence Estate Officer alongwith all necessary documents, within two weeks from today. If such representation is made, the Defence Estate Officer shall take decision on petitioner’s representation by passing an appropriate order, in accordance with law, within ten weeks thereafter”. 3. Thereafter, the authorities did not consider the case of the petitioner. If such representation is made, the Defence Estate Officer shall take decision on petitioner’s representation by passing an appropriate order, in accordance with law, within ten weeks thereafter”. 3. Thereafter, the authorities did not consider the case of the petitioner. Hence, he filed a Contempt Petition bearing CLCON No.118 of 2022. It was dismissed on 06.05.2022, on the question of limitation, but the learned Single Judge gave liberty to the petitioner to file appropriate writ petition. We quote the relevant paragraphs of the order as under:- “In view of provision contained in Section 20 of Contempt of Courts Act, contempt proceedings cannot be initiated against respondent at this belated stage. Section 20 of the said Act provides for limitation period of one year and in the present case, there is delay of more than three years. In such view of the matter, contempt petition is dismissed on the ground of delay with liberty to petitioner to approach the Writ Court”. 4. Thereafter, the petitioner filed the present writ petition bearing Writ Petition (M/S) No.1243 of 2022. It came before the learned Single Judge, who was in respectfully disagreement with the order passed by the learned Single Judge on 06.05.2022 granting him the liberty to file a fresh writ petition. 5. In the order dated 10.06.2022, the learned Single Judge has observed that he is of the view that the order dated 06.05.2022, granting the liberty, runs in contravention to the provisions contained under Section 20 of the Contempt of Court’s Act, because once the contempt has been dismissed on an issue which was raised as back as in 2018, in view of the bar created under Section 20 of the Act, at that very moment itself as per the opinion of the learned Single Judge, no new avenues can be left open for the petitioner to be re-agitated by filing a fresh writ petition for the same relief which has been prayed for in the present writ petition. 6. Section 20 of the Contempt of Courts Act, 1971 provides for limitation for actions for contempt. It reads as under :- “20. Limitation for actions for contempt.—No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed”. 7. It reads as under :- “20. Limitation for actions for contempt.—No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed”. 7. In this case, we are of the considered view that once as matter is decided on merit, and the contempt is dismissed on the question of limitation, then it is not open to the Court exercising contempt jurisdiction to give any liberty to the petitioner, or the complainant to re-agitate the matter because the matter has already been put to rest by a reasoned judgment. But, when no order/findings has been recorded as far as the merit of the case is concerned, and an innocuous order has been passed giving the liberty to the petitioner to file a representation before the authorities, then the Court exercising contempt jurisdiction, and dismissing the same on the question of limitation by invoking Section 20 of the Contempt of Courts Act will not be prevented it from granting the liberty to the petitioner, or the complainant to re-agitate the matter because the matter which was raised originally by the petitioner has yet to be decided by the Court. 8. It has been laid down in several judgments rendered by the Hon’ble Supreme Court that procedural law is the handmaid of the substantive justice. Whenever the Court is to consider an issue wherein a procedural aspect of law is raised against the substantive provisions of law, it is always expedient in the interest of justice to uphold the substantive law, and not to hide behind the technicalities. It is also trite that Court exists for adjudicating the dispute that arise before it in different kind of litigation, dispense justice, and not hide behind technicalities. 9. We may also observe here that this practice giving direction for disposal of the representation has been evolved by the Court to meet the heavy pendency and filing in the High Court. Such disposal of representation should not be considered as a final order, and if the representation is not decided in accordance to the claim of the petitioner, and the petitioner is not satisfied with the decision of the authorities on the issue, he has also the cause of action to challenge the same. 10. Such disposal of representation should not be considered as a final order, and if the representation is not decided in accordance to the claim of the petitioner, and the petitioner is not satisfied with the decision of the authorities on the issue, he has also the cause of action to challenge the same. 10. In that view of the matter, we are of the opinion that Section 20 of the Act generally barred the Court from giving any liberty to the petitioner to reagitate the issue, especially, when we have already held in the case of Pradeep Singh vs. Director General, Assam Rifles UPAO Branch (NE-III) & others, 2022 SCC Online Utt 428, that Order II Rule 2 read with Section 141 of the Code of Civil Procedure, 1908 leads to the conclusion that Order II Rule 2 of Code is not applicable to a petition for a high prerogative writ under Article 226 of the Constitution. We have also taken note of the reported case of Brahma Singh & others vs. Union of India & others, (2020) 12 SCC 762 , wherein the Hon’ble Supreme Court has held as under :- “9. As far as the second submission made on behalf of the Union of India is concerned, we have carefully gone through the earlier order and the writ petition. Though it is correct that in the writ petition there was a general claim to grant all the benefits under Rule 6 which would include retiral benefits but it appears that the Court did not go into the same. There is no rejection of the plea and as such we are of the considered view that this petition is maintainable and cannot be rejected on this hypertechnical ground. 10. In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others as follows: “12. 10. In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others as follows: “12. …The bar of Order 2 Rule 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.” Placing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulabchand Chhotalal Parikh v. State of Gujarat in relation to Order II Rule 2 held as follows (AIR p. 1159, para 26): “26. …By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit.” 11. In that view of the matter, we, accordingly, answered the questions, and request the learned Single Judge to adjudicate the matter on merits 12. Urgent certified copy of this order be issued to the learned counsel for the parties, as per Rules.