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HARI RAJ KISHORE versus SHIV PRASAD PANDEY

High Court of Judicature at Allahabad

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Hari Raj Kishore v. Shiv Prasad Pandey - SPECIAL APPEAL No. 57 of 2003 [2006] RD-AH 17440 (10 October 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No 32

Special Appeal No. 57 of 2003

Hari Raj Kishore....Vs...Shiv Prasad Pandey

...

Hon'ble S. Rafat Alam,  J.

Hon'ble Sudhir Agarwal, J.

This is an appeal under Section 19 of the Contempt of Courts Act read with Chapter VIII Rules 5 of the Rules of the Court, against the order/judgments of the Hon'ble Single Judge dated 17.12.2002 and 13.1.2003 passed in the Contempt Petition No. 2613 of 2002.

We have heard Sri Arjun Singhal, learned counsel for the appellant. None is present on behalf of the respondents, although name of Shiv Prasad Pandey, in person, is shown in the cause list. From the order sheet also it appears that this matter was listed on 22.12.2004, when also Sri Shiv Prasad Pandey did not appear, despite his name shown in the cause list. Today also he is not present. That apart it is well settled exposition of law that in the matter of contempt the applicant is not required to be heard as it is between the Court and the party aggrieved i.e. the alleged contemnor. We therefore proceed to hear and decide this matter even in the absence of Shiv Prasad Pandey.

Learned counsel for the appellant submitted that the petitioner-respondent filed writ petition No. 31538 of 2002 with the grievance that the construction of the roads etc. in Village Kurhwa, Post Pipri, Block Suriyawan, District Sant Ravidas Nagar  has not been made properly and the guilty persons should be penalized. A Division Bench of this Court heard learned counsel for the parties and disposed of the writ petition vide judgment dated 5.8.2002 with a direction that the representation of the petitioner-respondent dated 13.8.2002 shall be considered by the Commissioner, Mirzapur in accordance with law after hearing the petitioner and other interested parties and appropriate order shall be passed recording reasons within six weeks. However, no decision was taken on the representation and thus he filed contempt petition No. 2613 of 2002 wherein notice was issued on 17.12.2002. The Commissioner, Mirzapur thereafter by a detailed order dated 5.1.2003 decided the representation of the petitioner after hearing him. It is submitted that since the direction of the Division Bench has been subsequently carried out and the reason for delay was also explained, thus the contempt proceeding should not have been proceeded further in view of the law laid down by the Apex Court and ought to have been dropped.

Having heard learned counsel for the appellant and perusing the record including the orders under appeal passed by Hon'ble Single Judge, we find that while disposing of the writ petition No. 31538 of 2002, Division Bench of this Court issued only  following direction to the Commissioner, Mirzapur, vide judgment dated 5.8.2002-

"The representation filed by the petitioner on 13.8.2002 shall be considered by the Commissioner, Mirzapur in accordance with law after hearing the petitioner and other interested parties and appropriate order shall be passed recording reasons within six weeks.

The writ petition stands disposed of with the above observation."

It appears that the copy of the representation was submitted by the petitioner-respondent to the Commissioner, Mirzapur on 14.10.2002 whereupon he directed an enquiry on various issues raised in the representation. The aforesaid enquiry was conducted by the Deputy Development Commissioner, Vindhyachal Division. He vide letter dated 19.10.2002 informed the petitioner-respondent about the aforesaid enquiry. It is said that during the enquiry the petitioner-respondent was present and briefed the Deputy Development Commissioner, Vindhyachal on all aspects of the matter. A spot inspection was also made. Thereafter the Commissioner passed a detailed order on 5.1.2003 considering various issues raised by the petitioner-respondent in his representation. All these facts were stated by the appellant in the affidavit filed before the Hon'ble Single Judge after receipt of notice. However, the Hon'ble Single Judge in his order dated 13.1.2003 has proceeded to consider various other aspects of the matter which in our view, are beyond the jurisdiction of the Contempt Court since the Court in Contempt jurisdiction has to consider only whether the direction or judgment of the Court passed in regular proceeding has been complied with or not. It cannot go beyond the directions contained in the order, disobedience whereof is complained. Whether the authority rightly passed the order pursuant to the order passed by the Court or procedure adopted is correct is not the matter to be seen by the Court dealing with contempt matter. For that purpose, it is open to the aggrieved person to approach the Court in regular proceedings by filing a fresh writ petition etc..

In J.S.Parihar Vs. Ganpat Duggar And others- (1996) 6 SCC 291,  the Apex Court observed that pursuant to the direction issued by the Court once an order is passed by the authority, it provides a fresh cause of action to seek redressal in appropriate forum, and, on allegations that the direction has not been complied with correctly, properly and legally would not be entertained in a contempt matter since it cannot be said to be a wilful violation of the order. In the said case, writ petition was decided by the High Court declaring seniority list as illegal and after quashing the same, Government was directed to redetermine inter-se seniority as per direction contained in the said judgment. Pursuant to the aforesaid direction a fresh seniority list was prepared by the Government, whereafter, contempt proceeding was initiated under Section 12 of the Contempt of Courts Act, 1971 alleging that the seniority list has not been prepared as per direction of the Court. The Hon'ble Single Judge entertaining contempt matter though held that there is no wilful disobedience but further gave direction to the Government in the mater of preparation of seniority list observing that the same was not in accordance with the order of the Court. Against this order an appeal was filed before the Division Bench wherein the aforesaid directions were set aside. In appeal before the Apex Court, the order of the Division Bench was upheld. The Apex Court held-

"It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there rises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act."

The writ Court in the present case did not issue direction to the Commissioner, Mirzapur to decide the matter or the issues in a specified manner. The only order to be obeyed by the Commissioner was to decide the petitioner's representation after hearing him. It is not disputed that the petitioner's representation was decided by the Commissioner, Mirzapur after giving due opportunity of hearing to him. He passed an order rejecting representation. In these circumstances, the question would be as to whether there is a wilful disobedience on the part of the appellant in carrying out the order of the Court which amounts to " civil contempt " under Section 2 (b) of the Contempt of Courts Act, 1971. The proceeding of " Civil contempt " is not like an execution proceeding under Code of Civil Procedure. The party in whose favour an order has been passed, is entitled to the benefit of such order. The court while considering the issue as to whether the alleged contemnor should be punished for not having complied and carrying out the direction of the Court, has to take into consideration all facts and circumstances of a particular case and to find out as whether there is any wilful disobedience. In Niaz Mohammad & others Vs. State of Haryna & others-AIR 1995 SC 308, it was held that before a contemnor 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 Apex court also appreciated difficulties, if any, in compliance of the orders of the Court due to some compelling circumstances and observed as under-

"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 consequence thereof. But while 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 contemnor 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 under which it was not possible for the contemnor to comply with the order, the Court may not punish the alleged contemnor."

Again in Jhareswar Prasad Paul & another Vs. Tarak Nath Ganguly & others, AIR 2002 SC 2215, the Apex Court reiterated the purpose of contempt jurisdiction observing that it is to uphold the majesty and dignity of the Courts of law. The respect and authority commanded by the Courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. It is for this purpose that Act was introduced to secure the feeling of confidence of the people in general for true and proper administration of justice in the country. The power for contempt of Courts is a special power vested by the Constitution in the Courts of record and also under the statute and must be exercised with care and caution. It should be used sparingly by the Courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the Court exercising jurisdiction to punish for contempt does not function as an original or appellate Court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the Court and if the conduct of the alleged contemnor is wilful and intentional in order to amount contempt. It was observed-

"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."

Recently in Director of Education, Uttaranchal & others Vs. Ved Prakash Joshi & others-AIR 2005 SC 3200, it has been held that while dealing with the application for contempt the Court cannot traverse beyond the order non compliance whereof is alleged. It is held-

"It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions 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. In that view of the matter, the order of the High Court is set aside."

The Hon'ble Single Judge in the order under appeal despite of observing that the representation was decided appears to have proceeded to analyze the correctness of the decision taken by the Commissioner, Mirzapur and the Court has further proceeded to look into the manner in which the construction work has been executed in Vindhyachal Division and how the various authorities have functioned. In our view this was not within the scope of Contempt jurisdiction. The orders under appeal, therefore, cannot be sustained. Moreover, there is no finding recorded by the Hon'ble Single Judge, that delay if any, on the part of the appellant in deciding representation amounts to intentional or deliberate disobedience of the order dated 5.8.2002 and in absence thereof the Hon'ble Single Judge, in our view, has erred in law to deal with those aspects which could not have been looked into under the Contempt jurisdiction.

In the result the Special appeal is allowed. The impugned orders dated  17.12.2002 and 13.1.2003 are set aside. Since the order dated 5.8.2003 passed in the writ petition No. 31538 of 2002 has been complied with and we are satisfied that the delay occurred in disposal of the petitioner's representation is neither intentional nor deliberate and therefore, the appellant cannot be held to be guilty of the disobedience of the order of the Courts. The judgment stands duly complied with, the contempt petition shall also stand dismissed. However it is made clear that this order shall not preclude the respondents in availing such remedy as available in law against the order dated 5.8.2003 passed by the Commissioner, Mirzapur.

Dt:10.10.2006

ZH


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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