*HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU + LETTERS PATENT APPEAL No.3 of 2010 % 04.08.2010 BETWEEN: #Sri B.R.Meena and others … APPELLANT(S) AND $ T.Bajrang and others …RESPONDENT(S) ! Counsel for Appellants : Sri D.Ranganath Kumar ^ Counsel for Respondents : Sri S.Niranjan Reddy <GIST: >HEAD NOTE: ? CASES REFERRED: 1. 1999 (1) ALT 608 (D.B.) 2. AIR 1981 SC 1786 3. AIR 1997 SUPREME COURT 113 4. AIR 2006 SUPREME COURT 2190 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THIS THE 4th DAY OF AUGUST, 2010 PRESENT: HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU LETTERS PATENT APPEAL No.3 of 2010 BETWEEN: Sri B.R.Meena and others … APPELLANT(S) AND T.Bajrang and others …RESPONDENT(S) HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU LETTERS PATENT APPEAL No.3 of 2010 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) This is an intra-court appeal under Clause 15 of the Letters Patent. Initially, an appeal is filed under Section 19 of the Contempt of Courts Act, 1971 (for short – ‘the Act’), aggrieved by the order of the learned single Judge of this Court in CCSR No.4440 of 2009 dated 02.12.2009. When it is pointed out by the learned counsel for the respondents that the appeal under Section 19 of the Act is not maintainable as the contemnor not having been punished for violation of the orders of this Court in W.P.No.26839 of 1996, an application has been filed to convert the Contempt Appeal into an appeal under Clause 15 of the Letters Patent. The same was allowed converting the Contempt Appeal into an appeal under Clause 15 of the Letters Patent. Heard the learned counsel for the appellants and the learned counsel for the 1st respondent. It is not necessary for us to go into the merits of the controversy which lead to filing of the appeal, suffice it to say that the subject matter of the dispute in the Writ Petition filed by the respondents is with regard to alienation of a piece of site of the dimensions of 12 ft. x 36½ ft where the learned single Judge passed the following order. “Therefore, subject to the payment of the market value at the rate of Rs.10,000/- per sq. yard as determined by the Housing Board and together with the encroachment fee for the period between December, 1994 to November, 1995 at the rate of Rs.6267.37 ps per month and Rs.150/- and Rs.50/- towards preparation of the registration plans and conveyance charges respectively by the petitioner on or before 31.12.2008, the Housing Board is directed to alienate the land under occupation of the writ petitioner to him. The writ petition stands allowed. No costs.” Admittedly, after the writ petition was allowed, though the writ petitioner could not make the payment as directed by the Court but addressed a letter dated 30.12.2008 to the 3rd respondent herein i.e. the Vice-chairman and Housing Commissioner, A.P. Housing Board, requesting to furnish details of the amount to be paid by him in respect of the land ordered to be sold to him through the judgment in W.P.No.26839 of 1996 dated 29.09.2008, stating that a copy of the said judgment was received by him on 22.11.2008, that the time fixed by the High Court is completing by tomorrow i.e. 31.12.2008, that he has to make payment towards cost of the land and is anticipating information in that regard from the Housing Board authorities immediately. On receipt of the said letter, the Vice-Chairman of the Housing Board addressed a letter dated 31.12.2008 to the writ petitioner giving details of the amounts payable by him under various heads after giving credit to the amount already paid by him and directing him to pay the balance amount within one month from the date of that letter. The said amount admittedly has been paid by the writ petitioner on 29.01.2009 which is not within the period granted by this Court while disposing of the writ petition. On deposit of the amount when no action is forthcoming, the writ petitioner filed a contempt case in CCSR No.4440 of 2009, the order of which is impugned herein. The learned Single Judge by the impugned order observed that when this Court directed the writ petitioner to pay the amount as determined by this Court on or before 31.12.2008, instead of paying the same, he straightaway filed a representation on 30.12.2008 before the Vice-chairman and Housing Commissioner, A.P. Housing Board, Hyderabad, soliciting information from the Housing Board authorities as to the amount payable by him in terms of the judgment and such a representation was not called for and, be that as it may, the Housing Board has reacted, possibly, in quickest time to his representation and informed him the total amount due and payable by him at Rs.5,68,708.44 ps by the communication dated 31.12.2008 after giving credit to the amount of Rs.1,00,000/- already paid on 30.01.1997 as per the interim orders of this Court. In the penultimate paragraph of the said judgment, the learned Single Judge has gone into the tenable objections raised by the Housing Board and observed that the fact remains that after the writ petitioner has paid the entire amount, which is liable to be paid by him, there does not appear to be any justifiable reason for the Housing Board to deny the right to get alienated the land of 49.33 Sq. yards which was under his occupation for a period of 15 years or even more and, therefore, it would be appropriate for the Housing Commissioner to personally examine the matter and decide the issue as to the true and genuine reasons which are holding back the Housing Board from alienating the land in question. It was further observed that the learned Senior Counsel has drawn his attention to the fact that large-scale hutments have come up on the revetment and around the Naala that is passing through the locality and that the Housing Board itself has constructed several of its buildings very close to the open Naala and, therefore, the reason now sought to be shown for reluctance to alienate the land in favour of the petitioner does not appear to be true and correct and it would be appropriate for the Housing Commissioner himself to intervene in the matter as the writ petitioner has complied with, in substance and in all respects, the directions issued by this Court in W.P.No.26839 of 1996. The learned Single Judge directed that appropriate measures should be taken by the Housing Board to comply with the corresponding obligations arising therefrom and that the Housing Commissioner should determine the entire matter within a maximum period of 30 days from the date of receipt of a copy of this order, if necessary, by convening a meeting of its Engineering Departmental Officers and the writ petitioner so that first hand study and information can be gathered and that he is under the hope and trust that now the Housing Board would do all that is needed and required by it to comply with the judgment rendered by this Court in W.P.No.26839 of 1996, as indicated, within 30 days from the date of receipt of a copy of that order. Aggrieved by the said directions, which amounts to reviewing of the earlier order passed by the Court, the present appeal has been filed. Heard the learned counsel for appellants and the learned counsel for 1st respondent. Sri S.Niranjan Reddy, learned counsel for the 1st respondent, strenuously contended that the order passed by the learned Single Judge in the contempt case was in aid to implementation of the orders passed in by the learned Single Judge in the writ petition and the same is not a judgment for maintaining the present appeal and the said order passed by the learned Single Judge does not amount to reviewing the earlier order and that all the contentions and objections put forth by the Housing Board in the earlier round of litigation were negatived by this Court and the writ petition was allowed directing the Housing Board to collect the amount and alienate the said property and, therefore, the order impugned herein is only an order in aid to implement the order passed earlier in the writ petition. We see no force in the contention advanced by the learned counsel for the 1st respondent in view of the law laid down by a Division Bench of this Court in MD.KAMARUDJAMA vs. E.RAMESH[1] wherein, after enumerating the guidelines laid down by the Supreme Court in SHAH BABULAL KHIMJI vs. JAYABEN[2], while observing that any order passed or directions issued in variance to the original order passed results in varying the original order and it can also be termed as a review of the original order coming within the ambit of instances Nos.8 and 10 stated in the legal principles enunciated by the Supreme Court in paragraph-120 of its judgment in SHAH BABULAL KHIMJI case (2 supra), held that while no appeal is maintainable under Clause 15 of the Letters Patent against an order or direction issued by the learned Single Judge for enforcing the original order passed in terms thereof, while discharging the contemnor, any orders passed or directions issued, which are in variance to the original order passed, operate as an adverse judgment affecting the rights of the contemnor or any party in place of the contemnor and thus is appealable under Clasue 15 of the Letters Patent. Further, the Supreme Court in J. S. PARIHAR V. GANPAT DUGGAR[3] while considering the maintainability of the appeal under Section 19 of the Contempt of Courts Act, 1971, held in para-5 that - “The question then is : whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S. K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7- 1991. Subsequently promotions came to be made. The question is : whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may he 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 wilful violation of the order. After re- exercising the judicial review in contempt proceedings, afresh 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. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.” Similarly, the Supreme Court in MIDNAPORE PEOPLES' CO-OP. BANK LTD. vs. CHUNILAL NANDA[4] dealt with the questions (i) Where the High Court, in a contempt proceeding, renders a decision order or final judgment, whether the same is appealable under Section 19 of the Contempt of Courts Act, 1971, and, if not, what is the remedy of the person aggrieved? and (ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-court appeal is available under clause 15 of the Letters Patent? After considering the Section 19 of the Act which provides an appeal and clause 15 of the Letters Patent which provides intra-court appeals, summarized five principles in para-11. As per principles No.V thereof, 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 and 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). The Supreme Court in MIDNAPORE PEOPLES' CO-OP. BANK LTD. case (4 supra) further held that the term 'judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9) of CPC and orders enumerated in Order 43 Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties; that interlocutory orders which finally decide (i) a question or issue in controversy in the main case, or (ii) an issue which materially and directly affects the final decision in the main case, or (iii) a collateral issue or question which is not the subject matter of the main case, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent; and, on the other hand, (i) routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment, and (ii) 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, are not 'judgments' for purpose of filing appeals provided under the Letters Patent. Therefore, we see no force in the contention that the order under appeal is not a judgment to maintain the appeal under Clause 15 of the Letters Patent. Once the learned Single Judge holds that the respondents/contemnors have not committed any contempt and discharges them from the said proceedings adjudicating the matter on merits namely the rights flown to the petitioners in the communication sent by the Housing Board in its letter dated 31.12.2008 which will amount to reviewing the earlier order passed by the learned Single Judge. The order may not be passed in exercise of the contempt jurisdiction and the same has to be agitated in appropriate proceedings, if so, advised by the petitioner but the same cannot be a subject matter of dispute in a contempt case. Accordingly, the appeal is allowed setting aside the direction issued by the learned Single Judge in CCSR No.4440 of 2009 dated 02.12.2009 and the contempt case stands dismissed, granting liberty to the parties to agitate their rights before the appropriate forum. There shall be no order as to costs. ______________________ (A. GOPAL REDDY, J) ________________ (K.C.BHANU, J) 4th August, 2010 CVRK Note: L.R. copy to be marked. (B/o) CVRK [1] 1999 (1) ALT 608 (D.B.) [2] AIR 1981 SC 1786 [3] AIR 1997 SUPREME COURT 113 [4] AIR 2006 SUPREME COURT 2190