IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 W.A.No. 700 of 2010 -------------------------------- AGAINST THE JUDGEMENT/ORDER IN COC.839/2009 Dated 24/08/2009 .................... APPELLANTS: ---------------------- 1. SANTHA PAULOSE W/O LATE P.P.PAULOSE AGED 56 YEARS, RESIDING AT PALAKKATT, AMBALAMEDU PUTHENCRUZ, KUNNATHUNAD ERNAKULAM DISTRICT 2. PAULSON PAUL.P., S/O LATE P.P.PAULOSE AGED 33 YEARS, RESIDING AT PALAKKATT, AMBALAMEDU PUTHENCRUZ, KUNNATHUNAD, ERNAKULAM DISTRICT 3. POLLY, D/O LATE P.P.PAULOSE AGED 29 YEARS, RESIDING AT PALAKKATT AMBALAMEDU, PUTHENCRUZ, KUNNATHUNAD, ERNAKULAM DISTRICT BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SRI.VIVEK VARGHESE P.J. RESPONDENT/RESPONDENT IN CON. CASE: ------------------------------------------------------------------------ DISTRICT COLLECTOR ERNAKULAM DISTRICT ERNAKULAM ADV. ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.700 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March 2011 JUDGMENT Basheer, J. This appeal is directed against the judgment of a learned Single Judge in a contempt proceeding initiated under Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act, 1971. 2. The primary grievance of the appellant is that the learned Single Judge has travelled far beyond his jurisdiction and made some observations touching upon the merit of the case and also on some facts which were not at all relevant to decide the question whether or not the respondent was liable to be proceeded against under the Contempt of Courts Act. 3. Sri.Jacob Varghese, learned senior counsel who appears for the appellant, submits that the observations and conclusions made by the learned Single Judge in para 2 of the impugned judgment are likely to prejudice the mind of the civil court before which the question of title is pending consideration pursuant to a direction issued by this court in a Civil Revision Petition. The limited prayer of the learned senior counsel is that the above observation in para 2 may be expunged so that the Subordinate Judge's Court, Paravur is free to decide the issue referred to it, in accordance with law. 4. Sri.C.P.Sudhakara Prasad, learned Advocate General who appears for the respondent, submits that the appeal is liable to be dismissed in limine as it is not maintainable at all. He points out that Section 19 of the Contempt of Courts Act, in unambiguous terms, enumerates the instances in which an aggrieved W.A.No.700 OF 2010 :: 2 :: party in a contempt proceeding can institute an appeal against any order or decision of this court. He further submits that none of the clauses contained in Section 19 of the Act will come into play in the case on hand and therefore on that short ground this appeal is liable to be dismissed. 5. The above issue had come up for consideration before the Apex Court as well as this Court on earlier occasions. In Rasheed v. Saji Basheer [2005 (2) KLT 106], a Division Bench of this court has laid down that an order passed by a Single Judge in a contempt proceeding can be challenged under Section 5 of the High Court Act by the contemnor, if the learned Single Judge passes any order adverse to him even while discharging him from the contempt proceeding. It has been further laid down that the Division Bench can, in an appeal under Section 5 of the High Court Act, always intervene if the order passed by a learned Single Judge in a contempt proceeding runs beyond the scope of the order. 6. In Prithawi Nath Ram v. State of Jharkhand and Others (2004 (7) SCC 261), their lordships of the Supreme Court have held that in a proceeding initiated under the Contempt of Courts Act, “it would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision”. Their lordships further held that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who has allegedly committed default in complying with the directions in the judgment or order. The court can not traverse beyond the order and it cannot test the correctness or otherwise of the order or give additional direction or delete any W.A.No.700 OF 2010 :: 3 :: direction. 7. This litigation which has now culminated in this appeal has had a chequered history. In the nature of the question that has cropped up in this appeal as regards its maintainability, it is necessary to take a brief look at the history of the litigation. 8. It is on record that in the year 1990, a small extent of land was acquired by the State on a requisition made by the Cochin Shipyard. Late Poulose, the predecessor interest of the appellants, claimed that he was the absolute owner in possession of the said property. However, the contention of the State was that the property did not belong to Sri.Poulose and that it was a puramboke land. At that juncture, Sri.Poulose instituted a civil suit before the Munsiff Court, Parur in O.S.172/1990 praying for declaration of his title in respect of the said property. He also prayed for a consequential decree of injunction against forceful eviction. 9. The certified copy of the judgment passed in that suit, which is on record as Annexure-M, reveals that the said suit was disposed of on consent of the parties, namely, Sri.Poulose and the officers of the Revenue. The operative portion of the judgment reads thus: “The first defendant is hereby directed by a mandatory injunction to refer the dispute regarding the apportionment of the compensation amount of the acquired property scheduled in the plaint to the competent court (Subordinate Judge's Court at Parur). The issue of title is left open to be adjudicated by the said competent court. Reference shall be done within two months from the date of receipt of this judgment”. 10. The said decree and judgment were challenged by the State before the appellate court with a petition to condone the delay. It is beyond controversy that W.A.No.700 OF 2010 :: 4 :: the delay petition and the appeal were dismissed by the appellate court. In other words, the decree and judgment passed by the Munsiff Court became final. The review petition filed by the State against the dismissal of the delay petition and appeal was also rejected by the appellate court. 11. Appellant thereafter filed E.P.No.140/96 before the Munsiff Court, Parur for execution of the decree. The learned Munsiff dismissed the petition holding that the decree as such was inexecutable. The said order was challenged by the appellants before this court under Section 115 of the Code of Civil Procedure in C.R.P.No.1876/2001, contending that the State was bound by the compromise decree passed by the Munsiff Court and therefore the direction contained in the decree had to be complied with by referring the dispute relating to apportionment to the Subordinate Judge's Court, Parur. 12. The contention of the State before this court in the above revision petition was that it had not acquired any property belonging to the appellant and that the property in question belonged to the State as Puramboke. Anyhow, this Court disposed of the revision petition by order dated June 17, 2003. The operative portion of the order reads thus: “I am of the view that unless and until the title is declared in favour of the revision petitioner, the question of apportionment of compensation does not arise. The State has got a case that the Subordinate Judge's Court, Parur has no jurisdiction to determine the title. I make it clear that it is open to the State to raise such a contention before that court.” 13. The revision petitioner had thereafter preferred a petition for review of the above order. His grievance was that the revisional court had not issued any direction to refer the apportionment of compensation. This Court passed the W.A.No.700 OF 2010 :: 5 :: following order in the above review petition on June 7, 2004. “In such circumstances, I am inclined to dispose of this review petition directing the first respondent District Collector to refer the question of title to the Sub Court within a period of one month from the date of receipt of a copy of this order.” (emphasis supplied.) 14. Still later, on an interlocutory application filed by the revision petitioner, the learned Single Judge passed yet another order in the above review petition. The said order dated September 25, 2004 is extracted hereunder: “Considering the facts and circumstances of the case, I am inclined to allow the request made by the petitioner. I therefore, dispose of this application permitting the first respondent District Collector to refer the question of entitlement to compensation for taking possession of the suit property and the question of title to the Sub Court within a period of one month from the date of receipt of a copy of this order.” 15. It is on record that Sri.Poulose had initiated contempt proceedings against the then District Collector, Ernakulam in Contempt Case 605/07 for his failure to comply with the direction issued by this court in the three orders referred to above. A learned Single Judge, before whom the above Contempt of Court Case came up for final hearing, disposed it of with the following order: “Therefore, I direct the first respondent District Collector, Ernakulam to refer the question of entitlement to compensation as well to the court along with the question of title which is already referred. The District Collector is directed to comply with the direction within six weeks from today. In case of failure, the petitioner herein is permitted to move this court for further orders”. (emphasis supplied.) 16. The present proceeding under the Contempt of Courts Act was initiated by the appellant thereafter. The learned Single Judge disposed of the above case by the impunged judgment on August 24, 2009. Paragraph 2 of the above W.A.No.700 OF 2010 :: 6 :: judgment to which learned counsel for the appellants has taken strong exception is extracted hereunder: “I heard the learned counsel for the petitioner and also the Government Pleader. I find no merit in the petition. It is true that some orders have been passed by this Court directing for reference of the question of enhancement of compensation before the Sub court presumably on the basis that there was a decree in a civil suit compelling such reference. There is no decree compelling such reference is evident from the facts and circumstances presented. Further more, even after the orders passed on the review petitions filed one after the another, this Court has only permitted the District Collector to make a reference. Permission given to an authority to make a reference cannot be concluded as an order or direction, and such a reference need be made only if it is sanctioned by law. In a previous judgment by this Court under Annexure-A5, the permission had been construed as an order, is canvassed by the counsel to contend that the District Collector is bound to make a reference to the Sub Court the question of enhanced compensation also for consideration with the question of title. Where there is no decree or any order in the revision for making such a reference, the direction given in the contempt proceedings assuming that there was such an order cannot confer any better right on the petitioner. Proceedings for contempt initiated by the petitioner against the respondent are found devoid of any merit, and it is dismissed.” (emphasis supplied.) 17. It is vehemently contended by the learned Senior counsel that the assumptions and conclusions made by the learned Single Judge in the above paragraph do not appear to be correct from the records available before this court. He points out that a consent decree was passed by the Munsiff Court in O.S.172/1990. Therefore, it may not be correct to say that there was no decree compelling reference. It is also pointed out by the learned Senior counsel that this court in the order in R.P.709/2003 in CRP No.1876/2001 had directed the District Collector to refer the question of title also to the Sub Court. Still further, W.A.No.700 OF 2010 :: 7 :: in the order passed on I.A.2372/2004 in the above review petition, this court had directed the District Collector to refer the question of entitlement of compensation also to the civil court to be considered along with the question of title. In other words, the learned Single Judge had not issued any direction to the District Collector to refer the question of enhancement of compensation to the Subordinate Judge's Court at all. More importantly, question of enhancement of compensation was never a subject matter of any of the litigations pending between the parties. Enhancement of compensation would arise only after compensation has been fixed by the competent authority and the Land Acquisition Act itself provides remedy in this regard. Thus, it is contended by the learned Senior Counsel that the observations quoted supra from the impugned judgment are totally unwarranted. These observations which are based on certain incorrect assumptions may influence the mind of the civil court before which the issue relating to title is pending consideration. 18. However, Sri.Sudhakara Prasad, learned Advocate General, vehemently contends that the observations made by the learned Single Judge are totally valid and relevant in the facts and circumstances of the case. He submits that the learned Single Judge had only referred to the previous history of the litigation; and ultimately the court had found that the proceeding initiated by the appellant for contempt was not at all justified or warranted. Learned Advocate General further submitted that the contentions raised by the appellants are not liable to be countenanced or entertained in an appeal filed under Section 5 of the High Court Act for the simple reason that such an appeal is not maintainable. He has W.A.No.700 OF 2010 :: 8 :: invited our attention to a few decisions in this context: Baradakanta Mishra v. Mr.Justice Gatikrushna Misra, Chief Justice of the Orissa High Court [(1975) 3 SCC 535]; State of Bihar and Ors. v. Rajendra Singh and Anr. [JT 2004 (8) SC 168]; J.S.Parihar v. Ganpat Duggar and Others [(1996) 6 SCC 291]. 19. As we have already indicated in the earlier part of our judgment, Section 19 delineates or enumerates instances which would enable the party concerned to institute an appeal against an order passed in a contempt proceeding. Since the provisions under Section 19 are totally unambiguous, we need not refer to or deal with the various clauses contained in that Section. It has been further settled by a catena of decisions of various High Courts and the apex court that appellate remedy of a party in a contempt proceeding is only under Section 19 of the Act and no appeal under the High Court Act can be entertained. However, in the two decisions that we have already referred to in the earlier part of our judgment, it has been laid down that the High Court in an intra court appeal can consider the question whether the Contempt Court had traversed far beyond the jurisdiction which it could exercise in a contempt proceeding. 20. In fact in Midnapore Peoples' Co-op. Bank Ltd. and others v. Chunial Nanda and others (2006) 5 SCC 399), the apex court has elucidated the legal position regarding appeals against orders in contempt proceedings. Their Lordships held thus: “(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 Section 19. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for W.A.No.700 OF 2010 :: 9 :: contempt, in which event the appeal under Section 19 can also encompass the incidental or inextricably connected directions. (v) If the High Court 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 Single Judge and there was a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution (in other cases).” 21. The above judgment, in our view, will answer the arguments advanced by the learned Advocate General. In Director of Education, Uttaranchal v. Ved Prakash Joshi and Others [(2005) 6 SCC 98] their Lordships observed that “while dealing with an application for contempt, the court cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction.” 22. Keeping in view the entire facts and circumstances of the case, we have no hesitation to hold that the observations made by the learned Single Judge in para 2 of the impugned judgment were not warranted at all. The learned Judge could have closed the contempt petition without traversing areas which were not necessary. The orders passed by this court in CRP 1876/2001 and connected proceedings will make it abundantly clear that the question of title and entitlement to compensation had already been referred to the Subordinate Judges' Court, North Parur. 23. We are informed that pursuant to the above direction, the District Collector has referred the said issues to the court concerned. In that view of the matter, no other question need be considered by us at this stage. The appeal is W.A.No.700 OF 2010 :: 10 :: disposed of with a direction that the Subordinate Judge's Court, North Paravoor shall decide the questions referred to it untrammelled or uninfluenced by any of the observations made by the learned Single Judge in the impugned judgment. 24. In view of the settled legal position on the question of maintainability of an intra court appeal, we are constrained to hold that in the case on hand the learned Single Judge has traversed beyond the jurisdiction vested in him under the Contempt of Courts Act. In any view of the matter, we are satisfied that the observations except the conclusion made in paragraph 2 of the judgment are an unnecessary appendage to the judgment. Therefore, the observations in the said paragraph to the extent indicated above are liable to be expunged. We do so. 25. However, in the peculiar facts and circumstances of the case, the conclusion made by the learned Single Judge that no contempt proceeding need be entertained at this stage is upheld, especially in view of the subsequent events. The appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes