Andhra Pradesh High Court - Amravati

"10. Accordingly vs If The High Court on 14 July, 2023

                                     1




          HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                   and
   HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                      L.P.A.No.1 of 2021
                              and
                      L.P.A.No.6 of 2021
                               in
             C.C.Nos.1814 of 2016 and 153 of 2019
                               in
                      W.P.No.397 of 1999

COMMON JUDGMENT: (per D.V.S.S.Somayajulu, J)

          LPA No.1 of 2021 is filed questioning the order in

C.C.No.1814 of 2016, by which the following direction was

given:-

           "10. Accordingly, it is directed that the admitted 1339 logs
           of Red Sanders of similar grade commensurate to the
           weight as specified in Form-C filed by the petitioner, ought
           to be returned. Looking to the directions as issued by the
           court, it is apparent that, at first instance, respondents

ought to have returned 1339 logs of Red Sanders in specie or in the alternative the value thereof was required to be paid. In such circumstances, it is directed that the order of the court must be complied with by the respondents now within a period of three (3) weeks from today. The respondents shall identify 1339 logs of Red Sanders available of similar grade within the aforesaid period and return back to the petitioner. In case, respondents want to make payment of the value, the same should be as per the Government guidelines of the grade of the wood seized, with the consensus commensurate to the weight as

specified in Form-C. The said exercise must be completed within the aforesaid period.

11. It is further directed that the present incumbent officers, i.e., the Principal Chief Conservator of Forests, Andhra Pradesh, and the Divisional Forest Officer, East Division, Chittoor, Chittoor District, shall be joined by the petitioner by 30.11.2020 and thereupon, notices be issued to the said officers. The said officers shall submit compliance report; otherwise they shall remain personally present before this court."

2) Questioning the same, Letters Patent Appeal No.1

of 2021 has been filed.

3) L.P.A.No.6 of 2021 has been filed aggrieved by the

similar orders in C.C.No.153 of 2019, dated 27.11.2020.

Since the subject matter in both the LPAs is one and the

same, as per the orders dated 23.10.2021 in L.P.A.No.6 of

2021 both the matters were clubbed together and heard.

4) In view of the objection raised about the

maintainability of the LPAs the same is taken up for hearing

with consent of the Learned Counsels.

5) The essential point urged by Sri Kasa

Jaganmohan Reddy, learned counsel for the appellant, is that

the impugned order is beyond the scope of the main judgment

itself and that the Bench committed a mistake in issuing the

directions by considering the matters beyond the scope of its

power particularly in contempt jurisdiction. Learned counsel

submits that the Court committed an error in calling for

records in another case and also using the same for issuing

directions. It is submitted that material, which is not part of

the original case record, has been considered before issuing

the directions. On merits detailed submissions were also

made and written arguments were also submitted to show

that the Court's order is beyond the power available in the

contempt jurisdiction. The judgment of the combined High

Court of Telangana and Andhra Pradesh in L.P.A.No.14 of

2018 was also cited. The sum and substance of the

submissions, therefore, is that as there is an alteration of the

main order, the LPA is maintainable, that it should be heard

and disposed of.

6) In reply to this, Sri P. Veera Reddy, learned senior

counsel submits that a Letters Patent Appeal can only be filed

against a final order passed by a Court of competent

jurisdiction. He also points out that if the petitioners are

aggrieved by the order passed in Contempt, they have to

prefer an appeal under Section 19 of the Contempt of Courts

Act. Therefore, on both these grounds viz., that there is no

final order for filing LPA and if the petitioners are aggrieved

the remedy is an appeal under Contempt of Courts Act it is

submitted that the LPA is not maintainable and should be

dismissed.

COURT:

7) To understand this issue better, this Court is

proposing to look into the impugned orders passed.

8) Initially contempt was filed based upon the failure

of the respondents to comply with the order in W.P.No.397 of

1999. The following is the operative portion of the said order:

"In the result, the writ petition is partly allowed issuing mandamus against the 2nd respondent for return of 1339 logs of Red Sanders to the petitioner either in specie or in value within three months from the date of receipt of copy of this order. No costs."

9) The State took the matter in appeal and in

W.A.No.1642 of 2012 the following order was passed:

"The contention of the writ petitioner cannot be accepted. However, after considering the facts as it would appear from the material placed before us, it appears to us, that such contention of the Government Pleader in the appeal cannot be accepted by us since it cannot be substantiated by

any material or records and none of such material or record has been produced before us. On the contrary it appears to us that in the criminal proceedings the panchanama was placed and the same has been accepted, where from it would appear the number of logs, which were seized by the appellants / authorities and on the basis of that the petitioner is already acquitted from the said criminal charges. Further, more, the seized logs, which appear in the panchanama were never disputed and further more the logs which were also returned to the writ petitioner were not in dispute by the learned Government Pleader.

In view of that, we do not find there is any substance in this writ appeal. We find no illegality or irregularity in the order so passed by the Hon'ble single Judge.

Accordingly, this writ appeal is dismissed and the impugned order of the learned single Judge is confirmed."

10) An SLP was filed before the Honourable Supreme

Court. The following order was passed in S.L.P.No.23868 of

2013:

"Since the factual position has not been disputed before the High Court, we are unable to appreciate the persuasive submission made by learned counsel for the petitioner that the High court is not justified in going into the disputed questions of fact.

Hence we do not find any merit in this special leave petition. The same is, accordingly, dismissed."

11) Thereafter, since there is no compliance, contempt

was filed.

12) A counter affidavit was filed in September, 2016 in

reply to the Contempt Case. On 30.11.2017 the respondent

in the Contempt Case tendered an amount of Rs.19,89,671/-

vide cheque, dated 21.11.2017, to the petitioner. This was

not accepted stating that the same is grossly inadequate in

value. Hence the following order was passed by the Court:

"The value of each log is not before the Court and it is brought to the notice that in Form-C the value of the logs is recorded, which was not produced before this court. Therefore, the learned Government Pleader is directed to produce Form-C by the next date of hearing so as to ascertain whether the amount offered by the department is adequate or not towards costs of 1339 logs."

13) Thereafter also it appears there is no quietus, and

the issue of the value of the logs became a dispute.

Ultimately, after hearing all the learned counsel and

considering the earlier orders, the impugned order came to be

passed.

"10. Accordingly, it is directed that the admitted 1339 logs of Red Sanders of similar grade commensurate to the weight as specified in Form-C filed by the petitioner, ought to be returned. Looking to the directions as issued by the court, it is apparent that, at first instance, respondents ought to have returned 1339 logs of Red Sanders in specie or in the alternative the value thereof was required to be paid. In such circumstances, it is directed that the order of the court must be complied with by the respondents now within a period of three (3) weeks from today. The respondents shall identify 1339 logs of Red Sanders available of similar grade within the aforesaid period and return back to the petitioner. In case, respondents want to make payment of the value, the same should be as per the Government guidelines of the grade of the wood seized, with the consensus commensurate to the weight as specified in Form-C. The said exercise must be completed within the aforesaid period.

11. It is further directed that the present incumbent officers, i.e., the Principal Chief Conservator of Forests, Andhra Pradesh, and the Divisional Forest Officer, East Division, Chittoor, Chittoor District, shall be joined by the petitioner by 30.11.2020 and thereupon, notices be issued to the said officers. The said officers shall submit compliance report; otherwise they shall remain personally present before this court."

14) In the interim period the issue of Form-C became

a contentious issue. It is the contention of the State that the

Form-C is not available. The writ petitioner on the other hand

submits that the Form-C was filed in the Criminal Case i.e.,

C.C.No.19 of 2000. Since the respondents could not locate or

produce the Form-C, the writ petitioner made an application

supported by an affidavit to file certain additional documents

including the Form-C.

15) The consideration of this Form-C in the impugned

order resulted in the LPA.

16) Sri Kasa Jagan Mohan Reddy, vehemently argues

that court exceeded its jurisdiction by relying on this Form-C,

which is not part and parcel of the Court record, and directing

that the value based thereon should be used for payment.

17) As mentioned earlier the contention of the learned

counsel for the LPA appellant is that this consideration of new

material is not permissible in contempt jurisdiction and that

the Court should only confine itself to the issue of compliance

of the Court order alone. According to the learned counsel

the enquiry should be limited. The other documentary

evidence etc., cannot be considered for issuing directions.

18) Sri P. Veera Reddy, learned senior counsel

submits that in view of the contemptuous attitude of the

respondents-State and to decide whether they have actually

complied with the order of the Court it had become necessary

for the Court to look into the document. He submits that by

paying very small value the respondent wants to convince the

Court that they have complied with the Court order. The

document that is produced is only being utilized by the Court

for the purpose of ascertaining the value of the logs and in

turn for ascertaining if the order of the Court is complied with

or not since an alternative was given to pay the "value". In

addition, he also submits that the impugned order is not a

final order because it merely directed the respondents to

identify 1339 logs of a similar type for return. If they failed to

do so they were directed to make the payment. No

punishment under the Contempt jurisdiction was also

imposed. Therefore, learned senior counsel submits that

there is no finality as such that can be attached to this order.

He contends that only if the order is a final order a Letters

Patent Appeal would lie.

19) This Court after considering all the submissions

notices that the order impugned directed the respondents to

follow the directions of the Court, which are two fold:

a) to return the 1339 logs of red sanders in specie or

b) in the alternative to pay the value thereof.

20) In the opinion of this Court, this is an

intermediary order for the purpose of final adjudication.

There is no finality per se attached to this order. If there is no

finality, in the opinion of this Court, a Letters Patent Appeal

will not lie. The law is also well settled in this area. Para 22

of the judgment in Shah Babulal Khimji v. Jayaben D.

Kania1 is reproduced hereunder:

"22. It could thus be seen that both the judgments of S. Murtaza Fazal Ali, J. as well as A.N. Sen, J. in Shah Babulal Khimji v Jayaben D. Kania [(1981) 4 SCC 8], have a common thread that, as to whether an order impugned would be a "judgment" within the scope of Clause 15 of the Letters Patent, would depend on the facts and circumstances of each case. However, for such an order to be construed as a "judgment", it must have the traits and trappings of finality. To come within the ambit of "judgment", such an order must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a "judgment". If such is permitted, the floodgate of appeals would be open against the order of the Single Judge."

(1981) 4 SCC 8

21) The position of law as laid down in Midnapore

Peoples' Coop. Bank Ltd. v. Chunilal Nanda2 is also as

follows:

"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:

I. An appeal under Section 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 Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 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 Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably

(2006) 5 SCC 399

connected with the order punishing for contempt, in which event the appeal under Section 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 Article 136 of the Constitution of India (in other cases)."

22) Following this judgment, this Court holds that the

impugned order does not completely adjudicate the issues

raised by the parties in this Contempt Application. It has

postponed the same for a further date. Therefore, in the

opinion of this Court the Letters Patent Appeal is not

maintainable against this order.

23) Learned counsel relied upon the judgment passed

by the Combined High Court of Telangana and Andhra

Pradesh in the case of Shri Radhakrishna Mathur, IAS v I.

Ravi Kumar3. This Court notices that in that case before the

Division Bench of the Combined High Court, learned single

L.PA No.4 of 2014