Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO. 7317 OF 2009
(Arising out of SLP (Civil) No. 1722 of 2007)
Parents Association of Students …. Appellant
Versus
M.A. Khan and another …. Respondents
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
2. The question which arises for consideration in this appeal is as to
whether a Special Appeal from an interim order passed by the court in
exercise of its contempt jurisdiction is maintainable.
The said question arises in the following circumstances :-
2
3. Appellant-herein is an Association of Parents of the Wards who have
taken admission in different professional colleges including medical
colleges. Respondent No.1 is a Secretary of Era’s Lucknow Medical
College and Hospital while respondent No.2 is the Secretary, Medical
Education, Government of U.P.
4. A writ petition was filed by the appellant against the State of U.P. and
others wherein a learned Single Judge of the High Court having regard to
the decision of a 11 Judge Bench of this Court in T.M.A. Pai Foundation v.
State of Karnataka, [ (2002) 8 SCC 481 ] while disposing of the writ
st
petition on 31 August, 2006, directed as under:-
“Learned counsel appearing on behalf of the
respondent No.2 Sri Sanjay Bhasin, informs that
the authorities are bound to act in the light of the
judgment of the Apex Court and the various
Government Orders i.e. Government order dated
15.7.2003 and 13.7.2005 issued in the light of the
judgment of this Court at Allahabad.
In the light of the above no further directions are
required to be issued by this Court. In the
circumstances, the authorities must ensure and
stick on the fair statement made on behalf of the
respondents.
With these observations the writ petition is finally
disposed of.”
3
5. Indisputably clarification as regards interpretation of various
directions/observations made in T.M.A. Pai Foundation (supra) fell for
consideration before a Constitution Bench of this Court in Islamic
Academy of Education v. State of Karnataka, [ (2003) 6 SCC 697 ]. The
mater did not stop there. Another Seven Judge Bench was constituted to
interpret the directions issued in Islamic Academy of Education (supra) vis-
à-vis T.M.A. Pai Foundation (supra).
In P.A. Inamdar v. State of Maharashtra, [ (2005) 6 SCC 537 ]
wherein direction to constitute various Committees inter alia to determine
the quantum of fees payable by the students for taking admission as also
tuition and other fees to continue their studies in professional colleges, was
reiterated.
6. Respondent No.1 was not a party to the said writ petition. It,
however, approached the Committee for determination of the quantum of
fees which could be collected from the students. The Committee refused to
go into the said question opining that for the year in question i.e. 2003-04 it
had no jurisdiction to decide the same.
7. Relying on or on the basis of the said opinion of the Committee the
first respondent approached the Government of the State. A Government
th
order was issued on 7 September, 2006 permitting the College to collect
4
Rs.2,96,000.00 as fees for admission. The College indisputably collected
the said amount from the students.
8. It is at this stage that a contempt petition was filed by the appellant
against the contemnors-respondents contending that by issuance of the said
th
G.O. dated 7 September, 2006 the State had committed contempt of Court.
st
1 respondent was impleaded as a respondent-contemnor on the plea that he
was also bound by the earlier decision of the Court. However, he was not a
party to the writ petition.
th
9. A learned Single Judge of the High Court by his order dated 13
September, 2006 while opining that a prima facie case for initiating
contempt proceedings under the Contempt of Court Act has been made out,
passed the following interim order :-
“ After considering the argument on behalf of
the both sides this Court is of the view that issuing
of the Government Order dated 7.9.2006 prima
facie indicates the commission of contempt of
Court.
Let notice be issued to the opposite party
no.1 and 2.
They shall file counter affidavit within three
weeks. Rejoinder affidavit maybe filed within a
week thereafter.
List immediately thereafter.
5
In the meanwhile, the operation of the
disputed Government order dated 7.9.2006 shall
remain stayed and any consequential action taken
by way of notices to students shall also remain
stayed.
The Court is passing this order in view of
the observation of the Apex Court in Mohammad
Idris and another vs. Rustam Jehangir Bapuji and
others, AIR 1984 SC 1826 where it was observed
that the clear breach of undertaking given by the
petitioner, the Court could also issue appropriate
direction to close breach.”
10. An intra court appeal by way of Special Appeal was filed thereagainst
by the respondent No.1. Appellant herein raised a question of
maintainability of the said appeal. A Division Bench of the Court (Coram :
th
Hon’ble Jagdish Bhalla, J. and Hon’ble D.V. Sharma, J.) on 17 October,
2006 held the said appeal to be maintainable but did not assign any reason
in support thereof immediately, but stated :-.
“ In this Special; Appeal, the Stamp Reporter
has reported that it has been presented beyond 4
th
days of the statutory period. Admittedly, on 13
September, 2006 the appellant was not being
represented before the learned Single Judge.
However, notices were issued on 13.9.2006, which
st
was served upon the appellant on 21 September,
2006. Therefore, it cannot be said that appeal has
been filed beyond 4 days of the period prescribed
by the Limitation Act.
By the order dated 13.9.2006 passed in
Criminal Misc. Case No.2053 of 2006 (contempt
6
jurisdiction) the Hon’ble Single Judge was pleased
to issue notices calling upon the respondents
including the appellant to file counter affidavit and
stayed the operation of the Government order
dated 7.9.2006 together with the consequential
actions taken by way of notices to students.
A preliminary objection has been raised by
Sri S.N. Shukla, Advocate appearing for the
opposite party no.1 with respect to maintainability
of the instant Special Appeal. According to him,
there is no provision of filing Special Appeal
arising out of the contempt petition. He has next
contended that the respondent has received copy
of the Special Appeal at about 3 PM whereas the
affidavit of service shows the time as 12:15 PM.
Having heard the learned counsel for the
parties, we would have dictated the order in the
open Court on account of paucity of time we are
dictating only the operative portion of the order
and the reasons would follow :-
Admit.
Issue Notice.
Ten days time is allowed for filing objection
to the affidavit in support of the appeal. Till
further orders of the Court the order dated
13.9.2006 so far as it relate to the appellant shall
remain stayed. It would be for the parties Counsel
to inform this order to the Hon’ble Contempt
Judge.”
Reasons in support of the said order were assigned later on but the
th
date thereof was stated to be 17 October, 2006 itself. A certified copy of
7
th
the said order was made available to the appellant on or about 15 January,
2007.
11. Appellant is, thus, before us.
12. Mr. S.N. Shukla, learned counsel appearing on behalf of the appellant
would submit that as in view of the decision of this Court in Midnapore
Peoples' Coop. Bank Ltd. v. Chunilal Nanda, [(2006) 5 SCC 399] an appeal
in terms of Section 19 of the Contempt of Courts Act, 1970 would be
maintainable, the special appeal filed by the respondent should have been
dismissed in limine. It was urged that as the special appeal itself was not
maintainable, any interlocutory order passed therein should be held to be a
nullity. It was pointed out that in any event as merely a show cause notice
st
had been issued by the learned Single Judge by an order dated 31 August,
2006, no appeal lay thereagainst. As the decision of the learned Single
st
Judge dated 31 August, 2006 was binding on the State of Uttar Pradesh and
as prima facie the State has committed an act of contempt in issuing the
th
impugned GO. dated 7 September, 2006, the first respondent herein who
was aware of the said order could be proceeded against for commission of
contempt. Reliance in this behalf has been placed on Babulal v. Municipal
Corpn., Ratlam, [ (2005) 13 SCC 101], where it was held :-.
8
“2. The High Court appears to have proceeded on
the basis that it was settled law that a person not a
party to the original proceedings cannot be
proceeded against in contempt. The issue is a
debatable one, particularly having regard to the
law on the issue particularly in S.N. Banerjee v.
Kuchwar Lime and Stone Co. Ltd. The order of
the High Court is set aside and the matter is
remanded back for reconsideration of the issue.”
13. Mr. A. Mariarputham, learned counsel appearing on behalf of
respondent No.1, on the other hand would contend :-
(i) A valuable right of the appellant to receive fees from the
students having been taken away by reason of the order passed
by the learned Single Judge the Special Appeal was
maintainable.
(ii) As it is accepted that an appeal under Section 19 of the
Contempt of Courts Act would have otherwise been
maintainable before a Division Bench, it did not matter whether
the Division Bench exercised its jurisdiction under Section 19
of the Contempt of Courts Act or under the Letters Patent of
the High Court.
(iii) In view of the subsequent event, namely – determination of the
same amount of fees by the Committee which has also received
9
the approval of the Government having been questioned before
the High Court in a writ petition and the matter is pending
judgment, this Court should not interfere with the impugned
order.
14. The controversy as regards exercise of jurisdiction of the appellate
court under Section 19 of the Contempt of the Court Act is a vexed one.
Whereas one line of decisions beginning from Baradakanta Mishra v.
Justice Gatikrushna Misra, [ (1975) 3 SCC 535 ] till Midnapore Peoples'
Coop. Bank Ltd. (supra) is that an appeal would be maintainable only when
an order of punishment has been made, in R.N. Dey v. Bhagyabati
Pramanik, [ (2000) 4 SCC 400 ] it has been held to be maintainable if the
jurisdiction is excised by any court under the Contempt Courts Act.
15. The question, we may notice, has been referred to a 3 Judge Bench in
Dharam Singh v. Guljari Lal & Ors. [Civil Appeal No.18852 of 2005).
We, therefore, need not decide the larger question, namely,
maintainability of the appeal under Section 19 of the Contempt of Courts
Act, 1970 vis-à-vis maintainability of the Special Appeal under the Letters
Patent of the High Court, since the matter has been referred to a larger
Bench.
10
16. We, however wish to deal with the basic issue. Appellant filed the
writ petition, inter alia, for a direction upon the State to regulate
professional education so far as it, inter alia, relates to fixation of fee. First
Respondent admittedly runs a professional institution. It, subject to any
law, would be bound by the decision of this Court in T.M.A. pai (supra).
The contemnor or the institution which he represents, however, was not a
party. If he was not a party, subject to statutory interdict, only in
exceptional cases, he may be proceeded against under the Contempt of
Courts Act, 1970. It is one thing to say that a direction having been issued
upon the State Government; issuance of a Government Order in exercise of
its jurisdiction under Article 162 of the Constitution of India would attract
the wrath of the Contempt of Courts Act; but it would be another thing to
say that a party who merely derives benefit from such Government Order
would also be liable to be proceeded against under the Contempt of Courts
Act despite the fact that he was not a party to the judgment.
17. The learned Single Judge did not address itself to this aspect of the
matter at all. Ordinarily, a person if not a party to the lis and no direction
having been issued against him, a contempt petition against him would not
lie. Whether an exceptional case has been made out against him is yet to be
determined.
11
18. In S.N. Banerjee v. Kuchwar Lime and Stone Co. Ltd., [AIR 1938
PC 295], it has been observed :-
“The question whether a contempt committed not
by any person inhibited by injunction for breach of
that injunction but by a person said to have aided
and abetted a person so inhibited in breaking the
injunction is of such a criminal nature as to
prevent an appeal has given rise to much
controversy, controversy which in the present case
this Board does not think it necessary to resolve.
The respondents themselves when petitioning the
Court asked the Court to issue notice upon the
opposite parties to show cause why they should
not be committed for contempt for disobedience of
the injunction. Strictly speaking this was a wrong
remedy to ask against Ghose and Banerjee. The
injunction was not binding on them and they had
never disobeyed it. The petition should have
asked that they be committed for aiding and
abetting the Secretary of State in his disobedience.
Indeed on the authority of 1848) – 11 Beav 180
and 181, the High Court might well have
dismissed the petition against those two appellants
and left the petitioners to apply again in proper
form. Though the High Court did not do so but
treated the petition as if application had been made
to commit those appellants for contempt in aiding
and abetting the Secretary of State, yet their
Lordships do not think, the respondents have any
cause of complaint if the Court in admitting the
appeal treated the case (as the respondents
themselves had done) as being a petition for
breach of the injunction and gave a certificate as in
a civil matter.”
19. It is one thing to say that a person claiming title or any other right is
bound by a direction issued to another through or under whom he is
12
claiming a right but it may not be correct to opine that a person who has
nothing to do with the functions of the State would also be liable therefor.
In any event, the issue admittedly is a debatable one. It is required to be
gone into. Without any application of mind in this behalf on the part of the
High Court not only a notice has been issued but also an interim order has
been passed which vitally affects the respondents No.1.
A person aggrieved by an order must have a remedy. Technicalities
of law should not be allowed to come on his way to move the higher courts.
20. If Mr. Mishra is correct in his contention that an appeal was
maintainable under Section 19 of the Contempt of Courts Act, such an
appeal would also lie before a Division Bench of the High Court. It may,
subject to just exceptions, not matter much as to whether an appeal is
entertained under the said provision or under the Letters Patent of the High
Court. The Division Bench of the High Court, therefore, could entertain an
appeal subject, of course, to allocation subject matters by the Chief Justice
of High Court.
21. There cannot, however, be any doubt or dispute that this Court has
the jurisdiction to interfere with both the orders under Article 136 of the
Constitution of India.
13
22. Once the counsel for the parties are heard at great length, this Court
may in appropriate cases and in particular a case of this nature and keeping
in view the subsequent events may either refuse to interfere with the
impugned judgment or quash both the orders of the Division Bench and the
Single Bench on the legal principle that if setting aside of an illegal order
gives rise to another illegal order both orders may be quashed. [See
Chandra Singh v. State of Rajasthan & Anr. [(2003) 6 SCC 545]; and Dove
Investments Pvt. Ltd. & Ors. v. Gujarat Industrial Investments Corporation
Ltd. & Anr. [(2006) 2 SCC 619].
23. The question as to whether a person, although not a party in the
original writ proceedings, could be proceeded against, is a debatable one.
Such a question, therefore, was required to be determined at the threshold.
If prima facie two views are possible and unless it is firmly held that the
respondent No.1 not only was bound by the directions issued by the High
Court but he had also defied it willfully and deliberately, he cannot be
punished for commission of contempt.
If, prima facie, appellant cannot be punished for commission of
contempt of the High Court, an interim order also should have not been
passed.
14
We draw inspiration in this regard from a decision of this Court in
The State of Bihar v. Rani Sonabati Kumari [AIR 1961 SC 221]which has
since been followed in a large number of cases.
24. Recently in Sushila Raje Holkar v. Anil Kak (Retd.) [2008 (7)
SCALE 484], it was held :
“19. It may be true that this Court upon hearing
the parties, by the order dated 1.5.2007 granted the
respondent 15 days' time to deposit all arrears of
rent at the rate of Rs.50,000/- per month including
the rent for the month of April 2007. We are not
concerned with the implementation of the said
order as violation thereof is not the subject matter
of the contempt proceedings pending before us.
The order of this Court properly construed,
therefore, would mean that the admitted lease
would cover only 16,000 square feet of land.
Different phraseologies like "entire" and
"admitted" have been used by this Court.
Construction of the said order, therefore, must be
resorted to upon reading the same in its entirety. It
is a well settled principle of law that if two
interpretations are possible of the order which is
ambiguous, a contempt proceeding would not be
maintainable. In The State of Bihar v. Rani
Sonabati Kumari [AIR 1961 SC 221], it was
stated:
‘The second contention urged was that even
if on a proper construction of the order, read
in the light of the relevant pleadings, the
State Government was directed to abstain
from publishing a notification under Section
3(1) of the Act, still, if the order was
ambiguous and equivocal and reasonably
capable of two interpretations, a party who
15
acted on the basis of one of such
interpretations could not be held to have
willfully disobeyed the order. Stated in
these terms, the contention appears
unexceptionable. For its being accepted in
any particular case, however, two conditions
have to be satisfied: (1) that the order was
ambiguous and was reasonably capable of
more than one interpretation, (2) that the
party being proceeded against in fact did not
intend to disobey the order, but conducted
himself in accordance with his interpretation
of the order.’
This aspect of the matter has been considered by
this Court in Purnendu Mukhopadhyay and Ors. v.
V.K. Kapoor and Anr. [(2007) 12 SCALE 549]
{See also Maruti Udyog Limited v. Mahinder C.
Mehta and Ors. [(2007) 11 SCALE 750]}”
25. Strong reliance has been placed by Mr. Mishra on Midnapore
Peoples’ Coop. Bank Ltd. & Ors. (supra), wherein it has, inter alia, been
held :
“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).
XXX XXX XXX
16
15. Interim orders/interlocutory orders passed
during the pendency of a case, fall under one or
the other of the following categories :
(i) to (iii) …
(iv) Routine orders which are passed to facilitate
the progress of the case till its culmination
in the final judgment.
(v) Orders which may cause some
inconvenience or some prejudice to a party,
but which do not finally determine the rights
and obligations of the parties.”
26. We may, however, notice that in an earlier decision of this Court in
R.N. Dey & Ors (suspra) it was opined :
“In our view the aforesaid contention for the
learned counsel for the respondents requires to be
rejected on the ground that after receipt of the
notice, officers concerned tendered unconditional
apology and after accepting the same, the High
Court rejected the prayer for discharge of the rule
issued for contempt action. When the court either
suo motu or on a motion or a reference, decides to
take action and initiate proceedings for contempt,
it assumes jurisdiction to punish for contempt. The
exercise of jurisdiction to punish for contempt
commences with the initiation of a proceeding for
contempt and if the order is passed not discharging
the rule issued in contempt proceedings, it would
be an order or decision in exercise of its
jurisdiction to punish for contempt. Against such
order, appeal would be maintainable.”
17
27. As indicated hereinbefore, the matter is pending before a Three Judge
Bench.
In a case of this nature, this Court is also not precluded from taking
into consideration the subsequent events. Having regard to the subsequent
events, and in particular as, the decision as to the Committee’s power to fix
fees is justiciable or not is pending consideration, it would not be fair to
allow the interim order passed by the learned Single Judge to continue;
assuming that the Division Bench had no jurisdiction to entertain the appeal
and consequently pass the interim order staying the operation of the order of
the learned Single Judge. While, therefore, quashing both the orders, we
would request the learned Single Judge to consider the merit of contempt
matter only after disposal of the Writ Petition No.2117 (M/S) of 2006.
27. Appeal is disposed of accordingly. No costs.
…….…………………J.
( S.B. SINHA )
…….…………………J.
( CYRIAC JOSEPH )
New Delhi
18
December 16, 2008