IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) WRIT APPEAL NO. 308 of 2010 Smti Chandramati Devi, W/o. Sri Mukhtar Singh, R/o. Khanapara, PO & PS. Dispur, Kamrup, Assam. - Vs 1. Shri Rajib Bora, Commissioner & Secretary to the Govt. of Assam, Home Department, Dispur, Guwahati, Assam... Appellant 2. Shri Pratik Hazela, District Magistrate/Deputy Commissioner, Kamrup (Metro), Guwahati. 3. Shri Ratul Mahanta, Sub-Divisional Magistrate (Sadar), Kamrup (Metro, Guwahati... Respondents BEFORE THE HON BLE MR. JUSTICE I.A. ANSARI THE HON BLE MR. JUSTICE A. K. GOSWAMI For the appellant : Mr. M.K. Choudhury, Sr. Advocate, Mr. JI Borbhuyan, Advocate, Ms. F. Begum, Advocate. Ms. L. Mohan, Advocate Ms. S. Roy, Advocate Ms. A Ahmed, Advocate For the respondents : Mr. K.N. Choudhury, Addl. A.G. Assam, Mr. BK Kashyap, Advocate. Mr. M. Mahanta, Advocate Mr. J. Roy, Advocate Date of hearing : Date of Judgment & order:

2 2 JUDGMENT & ORDER (I.A. Ansari, J) This is an intra-court appeal against the judgment and order, dated , passed, in Contempt Case (Civil) No.649/2006, whereby a learned Single Judge of this Court, while imposing punishment on the persons, who were proceeded against, further directed payment of compensation, but scaled down the quantum of compensation, which the appellant had demanded. It is basically scaling down of the quantum of compensation, which is under challenge in this appeal. 2. We have heard Mr. M.K. Choudhury, learned Senior counsel, for the appellant, and Mr. K.N. Choudhury, learned Additional Advocate General, Assam. 3. The material facts, leading to the present appeal, may, in brief, be set out as under: (i) The appellant s vehicle, bearing Registration No.AS- 01L-7753 and being used as a tourist vehicle, was requisitioned, on , by the District Authorities in Kamrup and was handed over to the Army Authorities for being used for maintenance of law and order. Claiming that the vehicle had been damaged and the same was not being returned to the appellant presumably because the condition of the vehicle was such that it could not have been returned, the appellant filed a writ petition, under Article 226 of

3 3 the Constitution of India, seeking issuance of appropriate writ(s) commanding the respondents to release the vehicle and also pay compensation for the damage caused to the vehicle. The writ petition gave rise to WP(C) No.4909/2005. (ii). The respondents in the above writ petition [i.e. WP(C) No.4909 of 2005] resisted the writ petition by contending that the vehicle had been ordered to be released as far back as on and a notice was duly issued, in this regard, on , addressed to the appellant to obtain custody of the vehicle. The respondents also contended that despite sending reminders and notices to the petitioner, she did not come forward to take charge of the vehicle. The further case of the respondents was that the vehicle was inspected on and the same was found to be in good and running condition. (iii). The appellant, as petitioner in the above writ petition, countered the contentions of the respondents by pointing out that even on , the vehicle was in the use of the Army Authorities and there was no reason for the District Authorities to get the vehicle inspected on inasmuch as the Deputy Commissioner, Kamrup, had duly certified use of the vehicle during the period from to (iv). Having examined the claim and counter-claim, the writ petition [i.e. WP(C) No.4909 of 2005] was disposed of, on , with the following directions :

4 4 8. I dispose of the writ petition with the following directions :- (1) The requisition compensation in respect of the vehicle (Tata Sumo) bearing registration No.AS-01/L-7753, during such period that it remained under requisition till the actual release of the vehicle under good and running condition shall be paid to the petitioner within one month from the date of receipt of a certified copy of this order. (2) The District Transport Officer, Kamrup, Guwahati shall cause an inspection of the vehicle in question to the made by the competent person in order to assess the damage caused to the vehicle and such assessment shall be computed in terms of the money that would be required to put the vehicle back on the road. Towards assessing the damage caused to the vehicle, a copy of the assessment report shall be furnished to the Deputy Commissioner, Kamrup (Metro), Guwahati. Assessment shall be made and the report shall be submitted within one month. (3) The Deputy Commissioner shall within a period of 6(six) weeks from the date of the report from the District Transport Officer, Kamrup, Guwahati pay to the petitioner the compensation for damage as may be assessed. (v). In effect, the direction, as below, by the order, dated , aforementioned, was to pay to the writ petitioner compensation from the date of requisition till actual release of the vehicle in good and running condition. The direction to pay compensation till actual release of the vehicle in good and running condition was given, because the learned Single Judge observed to the effect that the vehicle had remained in the custody of the respondents from to By way of appeal or otherwise, since the respondents had not challenged the directions

5 5 so given, the directions, as indicated hereinbefore, attained finality. (vi) Alleging that the directions given by the order, dated in the writ petition, namely, WP(C) No.4909 of 2005, were being wilfully and deliberately violated, an application was made by the appellant herein seeking drawing of contempt proceedings against three persons. This contempt application gave rise to Contempt Case (Civil) No.649/2006. By judgment and order, dated , a learned Single Judge of this Court held that there has been willful and deliberate violation of the directions, which had been given in the writ petition aforementioned. In the Contempt Proceeding, it was, once again, pointed out by the persons proceeded against that the vehicle had been released on, at least, , with due intimation to the petitioner and it was, therefore, incumbent, on the part of the petitioner, to receive the vehicle and even if some damage had been caused to the vehicle, the petitioner could have raised this issue after taking back the vehicle. The learned Single Judge, however, noted that the order, dated , whereby the writ petition had been disposed of, shows that the direction was to pay the requisitioned compensation till actual release of the vehicle in good and running condition. The learned Single Judge, therefore, took the view that compensation was required to be paid to the petitioner till actual release of the vehicle in good and running condition.

6 6 (vii). The learned Single Judge also concluded, in the judgment and order dated , passed in the above contempt proceeding, that the vehicle had remained in the custody of the respondents till its deemed release on The learned Single Judge disbelieved the procedee s contention that the vehicle had been released on as had been contended by the respondents. Having taken the view that there had been willful and deliberate violation of the directions given by the Court, on , in the writ petition [i.e. WP(C) No.4909 of 2005], the Contempt Application was disposed of, on , with the following further observations and directions: 48. The petitioner has given the figure of the requisition compensation of Rs.11,46,390/- taking the requisition period from to (1113 days). The daily requisition fee has been shown at Rs.1030/- per day. While it is true that the vehicle remained in custody of the respondents till , but having regard to the facts and circumstances involved in the case and also in view of the fact that even if the vehicle was not in custody of the respondents, there was no guarantee that the petitioner s vehicle would have earned that much of amount, I am of the considered opinion that ends of justice would be met if the requisition compensation is assessed at 50% of the requisition compensation for the period in question calculated on the basis of the prescribed and prevalent daily requisition fee. The amount shall be paid to the petitioner by way of account payee cheque as expeditiously as possible but at any rate not later than Further, the petitioner will be entitled to the cost of the proceeding to be borne by the predecessor of the incumbent and the present incumbent of the office of the respondent No.2, i.e. the Deputy Commissioner, namely Shri Abinash Joshi and Sri Pratik Hazela. The amount shall be

7 7 deposited in equal share of Rs.5000/- by both the officers with the Registry of the High Court and the petitioner will be entitled to withdraw the same upon furnishing proper identity. 49. With the aforesaid directions and expressing displeasure on the conduct of the respondents with a note of warning to the respondent Nos.1 and 3 and severe reprimand to both Shri Abinash Joshi and Shri Pratik Hazela, this contempt proceeding is closed. (viii) Aggrieved by the fact that the order, dated , passed in the writ petition [i.e. WP(C) No.4909 of 2005], by virtue of the order, dated , aforementioned, had scaled down the compensation to 50% of the assessed amount and contending that no power was available with the Court, while dealing with a contempt proceeding, to reduce the amount of compensation, which the appellant was, otherwise, entitled to receive, the appellant herein [who was the petitioner in WP(C) No.4909 of 2005] filed an appeal under Section 19 of the Contempt of Courts Act, The appeal gave rise to Contempt Appeal No.03/2009, which was disposed of by a Division Bench of this Court, on , as non-maintainable on the ground that an appeal, under Section 19, lies as against punishment imposed on a person in a contempt proceeding and not against the directions, which might have been given as regards the merits of the dispute between the parties and that the remedy against the decision relating to merit of the dispute between the parties reached in a contempt proceeding, can be challenged by way of intra-court appeal or by seeking special leave under Article 136 of the Constitution. With the conclusions so reached, the appeal, which

8 8 the writ petitioner-appellant herein had preferred under Section 19 of the Contempt of Courts Act, 1971, was dismissed. The relevant observations, made in the order, dated , read as under: The conclusions recorded in paragraph 11 of the judgment in MIDNAPORE PEOPLES COOP. BANK LTD. (supra) makes it clear that a decision relating to the merits of the dispute between the parties in the exercise of contempt jurisdiction would be open to challenge in an intra-court appeal or by seeking special leave to appeal under Article 136 of the Constitution. In the present case there can be no manner of doubt that the direction/order against which this appeal has been filed relates to the merits of the dispute between the parties, i.e., the precise quantum of the requisition compensation. If that be so, the conclusion of the Apex Court contained in paragraph 11(V) will squarely apply so as to make the present appeal under Section 19 of the Act not maintainable. We, therefore, take the view that this appeal is not maintainable. It is accordingly dismissed leaving it open for the appellant to avail of such remedy/remedies indicated in paragraph 11(V) of the judgment of the Apex Court in the case of MIDNAPORE PEOPLE S COOP. BANK LTD. (supra). (ix). Following the order, dated , passed in Contempt Appeal 03/2009, whereby the contempt appeal was dismissed, this intra-court appeal, as indicated above, has been preferred by the appellant impugning the direction to pay 50% of the assessed amount of requisitioned compensation. In the meanwhile, however, the persons, who had been held to have committed contempt of Court and were accordingly directed to pay cost, preferred two appeals under Section 19 of the Contempt

9 9 of Courts Act, These two appeals gave rise to Contempt Appeal Nos.4 and 5 of By order, dated , a Division Bench of this Court has disposed of the appeals. In its order, dated , it has been pointed out by the Division Bench that during pendency of the contempt appeals, an interim order was passed to the effect that an amount of Rs.2,00,000/- be paid to the appellant and on payment of the said amount, the impugned judgment and order shall stand suspended and that the appellant has accordingly been paid the said amount of Rs.2,00,000/-. This apart, the Division Bench also noted, in its order, dated , aforementioned that in compliance with the order, passed by the learned Single Judge, an amount of Rs.1,97,000/- had already been paid to the present appellant. In all, thus, the Division Bench pointed out, the respondent in the contempt appeals, i.e., the appellant herein, had received almost Rs.4,00,000/-. Having noted that the learned Single Judge may have exceeded his contempt jurisdiction by giving direction for payment of 50% of the prescribed and prevalent requisition fees, the Division Bench, however, observed that it is not inclined to reopen the matter since payment had already been made quite sometime back in the year 2008 and it would, now, be inequitable to require the respondent in the contempt appeals, i.e., the present appellant, to repay the payment to the State and the matter be given a quietus to and no further action needs to be taken save and except that the reprimand and warning

10 10 administered to the appellants will not be used against them in their service profile. The Division Bench further directed that if the cost had not been deposited by the appellant, they need not deposit the same as had been directed by the learned Single Judge. The relevant observations made, and the directions given, in the order, dated , read as under: The respondent then preferred a contempt petition in which the learned Single Judge is said to have gone beyond the directions given in the writ petition. This submission is made by learned counsel for the appellants on the basis of the conclusions arrived at in paragraph 48 of the impugned judgment and order. In fact we find from a perusal of the impugned order passed by the learned Single Judge that the submission is correct and that the requisition compensation has been assessed at 50% of the prescribed and prevalent daily requisition fee for the period in question. Feeling aggrieved, the appellants have preferred the present contempt appeals. During the pendency of the contempt appeals, an interim order was passed by the Division Bench to the effect that an amount of Rs.2,00,000/- be paid to the respondent and on payment of that amount, the impugned judgment and order was suspended. Learned counsel for the appellants submitted that the amount of Rs.2,00,000/- has been paid to the respondent and this is confirmed by learned counsel for the respondent. In other words, the respondent has received about Rs.4,00,00/- from the State. The contention of learned counsel for the appellants is that the learned Single Judge exceeded his contempt jurisdiction by giving a direction for payment of 50% of the prescribed and prevalent daily requisite fee. This was over and above the direction given in the writ petition, which we have reproduced above.

11 11 While it is true that the learned Single Judge may have exceeded his contempt jurisdiction, we are not inclined to re-open the matter since the payment has been made by the respondent quite some time back in the year We are of the view that due to the long lapse of time, it may be inequitable to now require the respondent to make over the payment to the State. Accordingly, we direct that the matter be given a quietus to and no further steps need to be taken in respect of the order passed by the learned Single Judge in the contempt petition, save and except that the reprimand and warning administered to the appellants will not be used against them in their service profile. From the record it is not very clear whether the appellants have deposited the costs of Rs.5,000/- in view of the interim order passed by the Division Bench that a total amount of Rs.2,00,00/- should be deposited pending suspension of the impugned judgment and order. We, therefore, direct that if the costs have not been deposited by the appellants, they need not deposit the same as directed by the learned Single Judge. With these observations both the contempt appeals are disposed of. 4. In the backdrop of the above facts, we are, now, required to decide this appeal. 5. While considering this appeal, it may be noted that the Division Bench has already noted in its order, dated , to the effect that the submission of the respondent, who had appeared as appellant in the two appeals aforementioned, was correct that the learned Single Judge had exceeded his jurisdiction by directing payment to be assessed at 50% of the prescribed and prevalent daily requisition fees. Having noted that the direction had exceeded jurisdiction of the Court, the Division Bench, while

12 12 dealing with the two contempt appeals, declined to direct the present appellant to return or repay the amount of Rs.3,97,000/-, which the appellant had received by virtue of the directions given by the learned Single Judge. 6. Coupled with the above, we may indicate that in V.M. Manohar Prasad vs. N. Ratnam Raju & Anr., reported in (2004) 13 SCC 610, it was specifically contended that a Court while dealing with a contempt application, has no jurisdiction to issue any direction providing any substantive relief to the petitioner moving the contempt petition. The relevant observations made, in this regard, in V.M. Manohar Prasad (supra), read as under: 7. On the basis of what has been indicated above, the first submission is that there is no violation of the order passed by the learned Single Judge directing regularization of the employees, since the said order has not been violated in any manner. The matter was considered in the light of the scheme for regularization dated Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the petitioners moving the contempt petition. In support of this contention reliance has been placed upon decisions of this Court in Jhareswar Prasad Paul & Anr. vs. Tarak Nath Ganguly & Ors : (2002) 5 SCC 352 and Notified Area Council vs. Bishnu C. Bhoi : (2001) 10 SCC 636 : 2002 SCC (L&S) Dealing with the above observations made by it in V.M. Manohar Prasad (supra) the Supreme Court held that under the law, in contempt proceeding, no directions can be issued by the Court providing substantive relief to the contempt applicants. The Supreme Court clarified, in V.M. Manohar Prasad (supra), that if a

13 13 Court finds that its order has been violated, it may punish the contemnor or discharge the contemnor, but no order can be passed to supplement the order, which may have been passed granting relief, meaning thereby that when a Court concludes that a contempt has been committed or the Court concludes that no contempt has been committed, no further directions for compliance of the directions given by the Court, for violation or alleged violation whereof contempt application is made, can be given. The relevant observations made, in this regard, read as under: There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief. 8. From the observations made and the law laid down in V.M. Manohar Prasad (supra) what can be safely gathered is that a Court while dealing with a contempt proceeding may either punish the contemnor or discharge the contemnor, it can, in neither case would have the power to make any such order, which would supplement the relief which may have been granted by the order whose violation gives rise to the contempt proceeding. In short, in a contempt proceeding no mandamus can be issued by a Court to enforce to supplement the order whereby a relief had been granted to a party and violation of which order or direction had

14 14 led to the contempt proceeding. This position has been indicated by a Division Bench of this Court in Writ Appeal No.49 of 2005 [Sri Harendra Bhowmik vs. Shri Subhas Sutradhar & others], wherein (one of us, Ansari,J. was a party) a learned Single Judge of this Court while declining to initiate contempt proceeding directed the respondents in the contempt proceeding to make order granting regular scale of pay to the petitioner in whose favour a direction had been passed in the writ petition to make a regular pay scale available but the respondents in the writ petition i.e. the procedee in the contempt proceeding were alleged to have violated. Dealing with such a situation the Division Bench in Writ Appeal No.49 of 2005 [Sri Harendra Bhowmik vs. Shri Subhas Sutradhar & others] observed : In the backdrop of the position of the law indicated above, it becomes clear that having reached the conclusion that the appellant herein was not guilty of any contempt, and, particularly, when the learned single Judge had declined to initiate any contempt proceeding against the appellant, it becomes clear that no further directions could have been issued by the learned single Judge to the respondents, in the writ petition, including the present appellant, to pass appropriate order(s) granting regular scale of pay to the writ petitioners against the posts held by them. To this extent, the grievance of the appellant has substance and cannot, therefore, be ignored. This apart, the observations made by the learned single Judge, after a conclusion had already been reached that the appellant was not guilty of the contempt, that the matter does not come to an end with the refusal to initiate contempt proceeding against the respondent is also, in the context of the facts of the present case, not permissible in law inasmuch as this

15 15 observation was clearly made for the purpose of issuing the mandamus, which the learned single Judge, eventually, issued by directing the respondents to pass appropriate order as indicated above. We, therefore, set aside the observations, which read, The matter does not come to an end with the refusal to initiate contempt proceeding against the respondents and also the directions given, which read Accordingly, the respondents shall now do well to pass appropriate order granting regular scale of pay to the petitioners which is admissible against the posts being held by them. Appropriate order shall be passed in this regard within three months from today. 9. What clearly transpires from the above discussion is that the learned Single Judge had, as already noted by the Division Bench, exceeded his jurisdiction by directing scaling down of the compensation. At the same time, however, the fact remains that it is pursuant to the directions given in the contempt application that payment of Rs.4,00,000/- has been received by the appellant. This apart, while disposing of the contempt appeal, by order, dated , the Division Bench did not direct the appellant herein to repay the amount, which had been paid to the appellant herein i.e. respondent in the contempt appeal. The Division Bench had declined, as already indicated above, to direct the appellant herein, who was respondent in the contempt appeals, to repay the amount of Rs.3,97,000/-, which the present appellant had already received from the State. Though the appellant was a party to the contempt appeals, the order, dated , aforementioned, was never challenged by the appellant with the result that the

16 16 observations made therein attained finality and have become binding on the appellant even in this appeal. So long as the observations made, the conclusions reached and the directions given by order, dated , remain intact, we do not find that this Court, while entertaining an intra-court appeal, can pass a direction contrary to what a Division Bench of this Court had already done, on , by deciding to give a quietus to the whole issue and the appellant has apparently, having not challenged the conclusions so reached, remains bound by the said observations. 10. In the circumstances as indicated above, we find that the appellant is not entitled to any relief in this appeal and the appeal needs to be dismissed. 11. Before parting with this appeal, we may point out that it has been pointed out by Mr. K.N.Choudhury, learned Additional Advocate General, Assam, that physical delivery of the vehicle is not essential for the purpose of treating a vehicle released from requisition. In fact, Section 5 of the Assam Requisition and Control of Vehicles Act, 1968, makes it clear that when an order has been passed directing release of the vehicle and notice thereof has been given to the vehicle owner, the vehicle owner cannot refuse to take possession of the vehicle on the ground that damage has been caused to the vehicle. Notwithstanding the fact that the position of law as contended by the learned Additional Advocate General is

17 17 correct, this aspect is not required to be dealt with further by us because of the conclusions that we have reached above. 12. In the result and for the reasons discussed above, this appeal stands dismissed. 13. We, however, leave the parties to bear their own costs. JUDGE JUDGE Dutt

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