Full Judgment
WA.620/2023 -:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 WA NO. 620 OF 2023 [AGAINST THE JUDGMENT IN CONT. CASE (C) NO.2440 OF 2022 DATED 27.01.2023 AND
JUDGMENT IN WP(C) NO.24633/2021 DATED 17.12.2021 BY THE LEARNED SINGLE JUDGE]
APPELLANT/3rd PARTY IN THE CONT. CASE (C)/6TH RESPONDENT IN THE W.P.(C): LATHIKA HARI, AGED 62 YEARS W/O. HARI, RESIDING IN THE ADDRESS KARUNATU HOUSE, KANJIRAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, THODUPUZHA EAST P O, IDUKKI DISTRICT, PIN - 685584. BY ADV. SRI. G.SREEKUMAR (CHELUR) RESPONDENTS/PETITIONER AND RESPONDENTS IN C.O.(C)/PETITIONER AND 3RD RESPONDENT IN W.P.(C), AND THE SUBSEQUENT INCUMBENT IN OFFICE: 1 SIMON, AGED 50 YEARS RESIDING IN THE ADDRESS CHERUVALLATH HOUSE, ANCHERIKARA, ALAKODE VILLAGE, ALAKODE P. O., IDUKKI DISTRICT, PIN - 685588. 2 JOSEKUTTY, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER , PRESENTLY WORKING AS THE TAHSILDAR, TALUK OFFICE, THODUPUZHA P. O., IDUKKI DISTRICT, PIN - 685584. 3 DEEPA, AGED 45 YEARS NAME OF THE FATHER NOT KNOWN TO THE PETITIONER, WHO WAS WORKING AS TAHSILDAR LAND RECORDS AT THE TIME THE WRIT PETITION WAS ORDERED, TALUK OFFICE, THODUPUZHA P O, THODUPUZHA VILLAGE, WA.620/2023 -:2:- THODUPUZHA TALUK, IDUKKI DISTRICT, PINCODE - PRESENTLY WORKING AT COLLECTORATE, PAINAVU P O, IDUKKI DISTRICT, PIN - 685603. BY ADVS. SRI. MATHEW DEVASSI SRI. A.C.DEVASIA(K/103/1985) SMT. ANCY MATHEW(K/000630/2016) BY SENIOR GOVERNMENT PLEADER SRI. T. K. VIPINDAS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.620/2023 -:3:-
JUDGMENT
S. V. N. Bhatti, CJ Instant writ appeal is filed against the judgment in Cont. Case (C) No.2440 of 2022 dated 27.01.2023.
2. The first respondent filed W.P.(C) No.24633 of 2021 and the writ petition stood disposed of by judgment dated 17.12.2021 as under: “Resultantly, I order this Writ Petition and direct the 3 respondent - Tahsildar to take up Ext.P6 rd
application of the petitioner and dispose of the same, after affording him, as also the 6 th respondent, an opportunity of being heard; thus culminating in an appropriate order/proceedings thereon, as expeditiously as is possible but not later than three months from the date of receipt of a copy of this
judgment.
While completing the afore exercise, the 3rd respondent will also advert to Ext.P4 and take necessary steps for survey, if it is so necessary, for which, both sides are directed to co-operate fully, subject to their available legal remedies.”
3. The first respondent complaining disobedience or acts of
commission or omission warranting punishment under the Contempt of Courts Act, 1971, filed the contempt case. Material on record discloses WA.620/2023 -:4:- that Annexure-II dated 01.04.2022 was issued in compliance with Annexure-I judgment dated 07.12.2021 in W.P.(C) No.24633 of 2021.
4. Learned Senior Government Pleader appearing for the contesting respondents has placed on record a statement as under:
“4. It is submitted that on examining the record of this office, in connection with the received applications/tapals, Exhibit-P6 application dated 25.10.2020 is not seen received in this office. But, raising the very same matter as in the Exhibit-P6 application, the petitioner has filed an application on 30.11.2020 before the 3rd respondent. As per title Deed got the right of 0.1578 hectares of land in Re-survey Nos.397/5 and 400/13 in Block 32 of Alakkod Village, in which, 0.0186 hectares of land in Re-survey No.400/13 has been mutated and added to the name of the 6th respondent.”
5. Sri. G. Sreekumar Chelur, learned counsel for the appellant,
contends that closing the contempt of court case on a retracted statement made on behalf of the respondents/contemnors is unsustainable. Annexure-II proceedings have been withdrawn, and respondents 1 & 2 need not act or at least act according to law; the proceedings already initiated would be rendered ineffective. Hence, the writ appeal is filed at the instance of the 6 th respondent in the writ petition and a third party to the contempt proceedings. WA.620/2023 -:5:-
6. In support of his argument that writ appeal is maintainable
against the orders passed in contempt proceedings, learned counsel for the appellant relies on the following paragraph of the decision in Midnapore Peoples’ Co-op. Bank Ltd. and Others v. Chunilal Nanda and Others reported in (2006) 5 SCC 399: “11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus: I. An appeal under S.19 is maintainable only against an
order or decision of the High Court passed in exercise of its
jurisdiction to punish for contempt, that is, an order
imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under S.19 of the CC Act. In special circumstances, they may be open to challenge under Art.136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under S.19 of the CC Act. The only exception is where such direction or
WA.620/2023 -:6:- decision is incidental to or inextricably connected with the
order punishing for contempt, in which event the appeal
under S.19 of the Act, can also encompass the incidental or inextricably connected directions. V. 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 Art.136 of the Constitution of India (in other cases). The first point is answered accordingly."
7. We appreciate the circumstances in which the writ appeal is
filed. The case does not warrant interference in the manner in which it is made out in the writ appeal, but we are satisfied that the writ appeal can be disposed of with the following observations to ensure that the appellant is not prejudiced with the withdrawal of Annexure-II proceedings dated 01.04.2022: The learned Single Judge was satisfied with the statement made by the Senior Government Pleader that Annexure-II proceedings will be withdrawn. Assuming that Annexure-II is withdrawn, then respondents 1 and 2 in the writ appeal are obligated to commence the enquiry from WA.620/2023 -:7:- the stage where it is interdicted either by the statement of the Senior Government Pleader or as has been accepted in the judgment under appeal. In other words, reconsideration is from the stage of withdrawal of Annexure-II proceedings and in the process, respondents 1 and 2 discharge the duty and functions in accordance with the Kerala Survey and Boundaries Act, 1961, uninfluenced by any of the observations made in the contempt case or the writ petition. The writ appeal is ordered as above. Sd/- S.V.N.BHATTI CHIEF JUSTICE Sd/- BASANT BALAJI JUDGE krj/20.06.2023 //TRUE COPY// P.A. TO C.J.