Calcutta High Court
Sri Khalil Ahmed And Anr vs Ansar Ahmed And Ors on 21 June, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APO/190/2019
With
WPO/53/2014
CC/37/2018
SRI KHALIL AHMED AND ANR.
-VS
ANSAR AHMED AND ORS.
WITH
APO/88/2019
SRI KHALIL AHMED AND ANR.
-VS
SK. JAHIR AND ORS.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the respondents : Mr. Srijib Chakraborty, Adv.
Mr. Aditya Mondal, Adv.
Mr. Lalratan Mondal, Adv.
Mr. Deeptangshu Kar, Adv.
For the appellants : Mr. Alak Kumar ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
Mr. Debangshu Mondal, Adv.
Judgment On : 21.06.2023
Arijit Banerjee, J. :-
1. These two appeals are directed against a judgment and order dated March
29, 2019 passed by a learned Judge of our Court in CC 37 of 2018 (Ansar
Ahmed & Ors. v. Sri Sovan Chatterjee & Ors.) and CC 39 of 2018 (Sk.
Jahir & Ors. v. Sri Sovan Chatterjee & Ors.) arising out of W.P. 53 of
2014 and W.P. 142 of 2014 respectively.
2. The material facts of the case, very briefly stated, are that Premises No.
20B, Karl Marx Sarani, Calcutta 700 023, was declared as a heritage
building by Kolkata Municipal Corporation (in short KMC). The reason is
that according to KMC, the famous Bengali poet Michel Madhusudhan Dutta
was born there and/or resided in that house for a substantial period of time.
3. Two writ petitions were filed by persons who had acquired the said
property in 1990 after coming to know of the declaration of the property as a
heritage building. The writ petitions were disposed of by a common
judgment and order dated July 11, 2016, the operative portion whereof
reads as follows:-
"I think, in the circumstances, I should refer the declaration of the
subject building as Heritage to the Commission, to review and
reassess the view taken by the said Expert Committee and the
Heritage Conservation Committee endorsed by the Corporation.
This review or reconsideration should be done following the
guidelines given in this judgment and upon notice to the
petitioners upon hearing them or upon giving them an opportunity
of hearing and by a reasoned decision within three months of
communication of this order. I order, accordingly. If the decision of
the Heritage Commission is that the recommendation of the
Heritage Conservation Committee was correct, then that is the end
of the matter. If the decision is that it was incorrect, then the
decision of the Commission will be send to the Mayor-in-Council
under Section 425B of the Kolkata Municipal Corporation Act,
1980 and, thereafter, to the Corporation for final approval of the
same. The Corporation should be able to take the decision, if so
required within a further period of eight weeks from the date of
communication of the decision of the Heritage Commission. The
Corporation will not ordinarily interfere with the decision of the
Commission. If it does, it has to be supported by detailed reasons."
4. Alleging violation of the aforesaid order, two contempt petitions were filed
by the owners of the said property.
5. A compliance report was filed by KMC in one of the said contempt
applications. From such report it appears that the opinion of the West
Bengal Heritage Commission (in short WBHC) having sought for by KMC as
regards whether or not the said property deserves to be declared as a
heritage building, the WBHC communicated its decision to KMC by a letter
dated September 5, 2017. The final opinion of WBHC as recorded in the
compliance report was to the following effect:-
"The Commission, therefore, does not find any documentary
evidence to uphold the decision of the Heritage Conservation
Committee of the Kolkata Municipal Corporation. The Commission
considered for settlement of the issue for making some provision
for installing a statuette along with a plaque inscribing the brief
history of the poet in his memory at a prominent place of the
proposed project of the petitioners at 20B, Karl Marx Sarani."
6. The compliance report then recorded as follows :-
"It is submitted that having due regard to the solemn
direction of the Hon'ble Justice I.P. Mukerji as contained in the
order dated 11.07.2016 the Heritage Conservation Committee held
a meeting on 11.08.2018 when the Historian member of the HCC
placed his report in respect of the building at 20B, Karl Marx
Sarani. In the said report the Historian made a reference to a
memoir written by Sibnath Shastri wherein it is mentioned that
Madhusudan Dutta resided in this house for a substantial period
of his student life and had his school and college education from
this house. The WIKEPIDIA and other biographies also confirm the
authenticity of above report. Moreover, the area is known as
"KABITIRTHA" named after the three great poets of Bengal of this
locality i.e. Madhusudan Dutta, Ranglal and Hem Chandra
Banerjee and so, demolishing the building related to Madhusudan
Dutta will not be a dignified step.
The Heritage Conservation Committee could not agree
with the decision of the Heritage Commission upon accepting the
report of the historian Committee and was of the opinion that the
Grade of the building as Grade IIB was to be retained.
The resolution of the Heritage Conservation Committee
dated 11.08.2018 was thereafter placed before the Mayor-in-
Council in its meeting held on 31.08.2018 under Item No. MOA-
67.9 and the Mayor-in-Council duly approved the resolution of the
Heritage Conservation Committee dated 11.08.2018 under
Sections 425B and 425D of the KMC Act, 1980.
It may be stated that the note of the historian member on
authentication of Michal Madhusudan Dutta's residence at 20B,
Karl Marx Sarani with supporting information as contained therein
is a part of the resolution of the Heritage Conservation Committee
dated 11.08.2018 because of acceptance of the same for
disagreeing with the decision of the West Bengal Heritage
Commission.
It is submitted that the direction as contained in the order
dated 11.07.2016 has been acted upon by taking the decision with
supporting reasons as above the Hon'ble Court may be pleased to
accept the same."
7. The relevant portion of the judgment and order whereby the contempt
petitions were disposed of by the learned Judge reads as follows:-
"It appears from this report that only after the contempt
proceedings were initiated, the Corporation proceeded to consider
the decision of the West Bengal Heritage Commission according to
the order of this Court dated 11th July, 2016. It is amazing to see
the evidence that the historian member of the heritage
Conservation Committee of the Corporation relied upon and which
was apparently accepted by it; (i) memoir written by Sibnath
Shastri (ii) wikipidea and other biographies; (iii) the subject area
being known as KABITIRTHA.
First of all, Sibnath Shastri was born in 1847 and died in
1919. He was 23 years younger than the poet, was only twenty six
years old when the poet died and most probably wrote several
decades after the poet's death. So, he could not have had any
firsthand knowledge of his residence in his early days. What
Shastri wrote was his opinion and of very little evidentiary value.
What "other biographies were relied upon" are not even mentioned.
WIKEPIDIA is a website which contains information. What was the
source of this information, what was the content of the WIKEPIDIA
posting have not been disclosed.
Being thoroughly dissatisfied, this Court called for a
further compliance report. The second compliance report says that
the recommendation of the Mayor-in-council dated 31st August,
2018 was placed as Item No. 13 under Agenda no. 43 before the
Corporation in its meeting held on 4th October, 2018. The
recommendation of the Heritage Conservation Committee dated
11th August, 2018 was approved. The recommendation was: "......
Hence, this Committee would like to interfere with the decision of
the State Heritage Commission of demolishing the building by
accepting the report of the Historian member of the Committee and
opined to retain the Grade of the building as "Grade -IIB as it
was."
At this point, I would like to emphasize a part of the order
dated 11th July, 2016 reproduced above: "The Corporation will not
ordinarily interfere with the decision of the Commission. If it does,
it is to be supported by detailed reasons."
The alleged contemnors were bound to follow this order
strictly. They had no scope of going the way they desired. Even, if
the decision of the State Heritage Commission was unacceptable to
the Corporation, ordinarily they had to accept that decision. That
is why it was provided in the said order that they would not
"ordinarily interfere with the decision of the Commission."
There was non-compliance of the said order of this Court
to the extent that there was refusal on the part of the respondent
Corporation to accept the decision of the Heritage Commission
without the support of intelligible reasons.
Therefore, it is to be taken that they had no reasons to
give to depart from the decision of the Commission.
In the ordinary course this lack of any grounds to depart
from the opinion of the Heritage Commission would have provided
sufficient grounds to reverse the declaration that the subject
building was heritage. Regrettably the Corporation ought to have
taken this decision but has not taken it. Certainly there is non-
compliance with the said order of this Court dated 11th July, 2016.
Could it be said that there was wilful disobedience of the
said order? The respondents have tried to comply with the
statutory procedure for declaration of a building as heritage by
circulating the decision of the Heritage Commission amongst the
Mayor-in-Council and the Corporation. But the Corporation could
not advance the required reasons, to depart from it. The reasons
sought to be advanced by the historian member only strengthens
the case of the petitioner and does not strengthen case of the
Corporation. Nevertheless, it would be difficult to hold that this
disobedience was wilful and that the alleged contemnors are in
contempt of the said order of this Court and that they should be
punished for it. This Court in the exercise of this jurisdiction does
not have the power to declare that since the Corporation did not
have any grounds to contradict the decision of the Heritage
Commission, it could be assumed that they have accepted it and
that on that basis they should reclassify the building as non-
heritage.
Perhaps on the basis of these findings the petitioners will
be able to seek redress in a proper Court having the jurisdiction to
pass the necessary order. With those observations, these two
identical contempt applications i.e. CC 37 of 2018 and CC 39 of
2018 are disposed of, without issuance of any Rule."
8. The learned Judge therefore held that there was non-compliance of His
Lordship's order on the part of KMC but such non-compliance was not
wilful. Accordingly the two contempt applications were disposed of without
issuance of Rule. However, in the process the learned Judge made
observations which pertain to the merits of the decision of the Heritage
Conservation Committee of KMC to retain the heritage status of the
aforesaid property. The grievance of the appellants in these appeals is that
the learned Judge has for all practical purposes held that the Heritage
Conservation Committee (HCC) ought not to have differed from the opinion
of WBHC and that the material on the basis whereof the HCC has come to a
different opinion, is not reliable or credible. The learned Judge has in effect
decided that the property in question cannot be declared as a heritage
property although no such declaration has been made by the learned Judge
considering that in a contempt application no such order could be passed.
However, the learned Judge should not have made such observations while
deciding the contempt applications. The learned Judge ought to have
restricted himself to decide whether or not the alleged contemnors are guilty
of contempt of Court. The observations of the learned Judge pertaining to
the merits of the decision of the HCC are beyond the scope of the contempt
proceedings and ought to be expunged from the judgment and order under
appeal. Otherwise, such observations may be relied upon by the writ
petitioners in any future litigation pertaining to the heritage status of the
building in question before any competent forum.
9. On the question of maintainability of the appeals which are admittedly not
appeals under Section 19 of the Contempt of Courts Act, 1971, learned
Counsel for the appellants relied on two decisions:-
(i) J.S. Parihar v. Ganpat Duggar & Ors., reported in (1996) 6 SCC
291. Learned Counsel relied on paragraph 6 of the reported judgment
which reads as follows:-
"6.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 be 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, a fresh 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."
(ii) Midnapore Peoples' Coop. Bank Ltd. & Ors. v. Chunilal Nanda
& Ors., reported in (2006)5 SCC 399. In this case on a contempt
petition, a learned Single Judge passed certain substantive directions
pertaining to the merits of the case. Being aggrieved, the respondents in
the contempt petition preferred an appeal before a Division Bench of the
High Court. The Division Bench dismissed the appeal as not
maintainable on the grounds that neither the order of the learned
Single Judge punished any contemnor and hence there could be no
appeal under Section 19 of the Contempt of Courts Act, nor, the
impugned order was a judgment within the meaning of clause 15 of the
Letters Patent. The matter being ultimately carried to the Hon'ble
Supreme Court, the following Questions were framed by the Hon'ble
Supreme Court for consideration:-
"(i) Where the High Court, in a contempt proceeding, renders a
decision on the merits of a dispute between the parties, either by
an interlocutory order or final judgment, whether it is appealable
under Section 19 of the Contempt of Courts Act, 1971? If not, what
is the remedy of the person aggrieved?
(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?
(iii) In a contempt proceeding initiated by a delinquent employee
(against the Enquiry Officer as also the Chairman and Secretary
in-charge of the employer Bank), complaining of disobedience of an
order directing completion of the enquiry in a time-bound
schedule, whether the court can direct (a) that the employer shall
reinstate the employee forthwith; (b) that the employee shall not be
prevented from discharging his duties in any manner; (c) that the
employee shall be paid all arrears of salary; (d) that the Enquiry
Officer shall cease to be the Enquiry Officer and the employer shall
appoint a fresh Enquiry Officer; and (e) that the suspension shall
be deemed to have been revoked ?"
10. Having considered various earlier decisions of the Hon'ble Supreme
Court, in the above case, on issue no. (i), at paragraph 11 of the judgment ,
the Hon'ble Court held as follows:-
"11. The position emerging from these decisions, in regard to
appeals against orders in contempt proceedings may be
summarized 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 CC Act. The only exception is where
such direction or decision is incidental to or inextricably 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).
The first point is answered accordingly.
Re : Point No. (ii)"
11. On Issue No. (ii) the Hon'ble Supreme Court held, at paragraphs 12, 15,
16 and 18 as follows:-
"12. We will next consider as to whether an intra-court appeal
under clause 15 of the Letters Patent was available against the
interlocutory order dated 20.11.1998 containing the directions on
merits of the dispute. Clause 15 of the Letters Patent provides for
an appeal from a "judgment" of a Single Judge in exercise of
original jurisdiction to a Division Bench. In Shah Babulal Khimji v.
Jayaben D. Kania & Anr. [AIR 1981 SC 1786], the scope of clause
15 of the Letters Patent was considered. This Court held:
"The concept of a judgment as defined by the Code of Civil
Procedure seems to be rather narrow and the limitations
engrafted by sub-section (2) of section 2 cannot be physically
imported into the definition of the word 'judgment' as used in
Clause 15 of the Letters Patent because the Letters Patent has
advisedly not used the term 'order' or 'decree' anywhere. The
intention, therefore, of the givers of the Letters Patent was that
the word 'judgment' should receive a much wider and more
liberal interpretation than the word 'judgment' used in the Code
of Civil Procedure. At the same time, it cannot be said that any
order passed by a trial Judge would amount to a judgment;
otherwise there will be no end to the number of orders which
would be appealable under the Letters Patent. It seems to us
that the word 'judgment' has undoubtedly a concept of finality in
a broader and not a narrower sense. In other words, a judgment
can be of three kinds :
(1) A final Judgment. ____ * * *
(2) A preliminary Judgment. ____ * * *
(3) Intermediary or interlocutory judgment. - Most of the
interlocutory orders which contain the quality of finality are
clearly specified in clauses (a) to (w) of Order 43, Rule 1 and
have already been held by us to be judgments within the
meaning of the Letters Patent and, therefore, appealable.
There may also be interlocutory orders which are not covered
by Order 43, Rule 1 but which also possess the
characteristics and trappings of finality in that, the orders
may adversely affect a valuable right of the party or decide an
important aspect of the trial in an ancillary proceeding. Before
such an order can be a judgment the adverse effect on the
party concerned must be direct and immediate rather than
indirect or remote. (SCC pp. 55-56, para 113)
* * *
... in other words every interlocutory order cannot be regarded as a
judgment but only those orders would be judgments which decide
matters of moment or affect vital and valuable rights of the parties
and which work serious injustice to the party concerned. (SCC P.
57, para 115)
* * *
... any discretion exercised or routine orders passed by the trial
Judge in the course of the suit which may cause some
inconvenience or, to some extent, prejudice to one party or the
other cannot be treated as a judgment otherwise the appellate
Court (Division Bench) will be flooded with appeals from all kinds
of orders passed by the trial Judge. ...
... the interlocutory order in order to be a judgment must contain
the traits and trappings of finality either when the order decides
the questions in controversy in an ancillary proceeding or in the
suit itself or in a part of the proceedings. (SCC p. 58, para 119)"
15. Interim orders/interlocutory orders passed during the
pendency of a case, fall under one or the other of the following
categories :
(i) Orders which finally decide a question or issue in
controversy in the main case.
(ii) Orders which finally decide an issue which materially and
directly affects the final decision in the main case.
(iii) Orders which finally decide a collateral issue or question
which is not the subject-matter of the main case.
(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.
16. 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) CPC and orders enumerated in Order 43 Rule 1 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. Interlocutory orders which
fall under categories (i) to (iii) above, are, therefore, "judgments" for
the purpose of filing appeals under the Letters Patent. On the other
hand, orders falling under categories (iv) and (v) are not
"judgments" for the purpose of filing appeals provided under the
Letters Patent.
18. The Division Bench, therefore, committed a serious and
obvious error in holding that the appeal [MAT 4075 of 1998] was
not maintainable under clause 15 of the Letters Patent. Though
the order of the learned Single Judge dated 20.11.1998, by which
several directions to the Bank with reference to first Respondent
were issued, is not a final "judgment", it is an "interlocutory
judgment" which finally decides several rights and obligations of
the employee vis-a-vis the employer and, therefore, appealable
under clause 15 of the Letters Patent." (The emphasis is ours).
12. On Issue No. (iii), the Hon'ble Court, in paragraphs 20 and 21 of the
reported judgment, held as follows:-
"20. In the circumstances, the High Court ought to have proceeded
to consider whether there was any wilful disobedience of the order
dated 9.4.1997, on the part of S.K. Das and, if so, punish him for
contempt. As S.K. Das was nowhere in the picture when the order
dated 9.4.1997 was passed in the writ petition, and as he was
appointed as an independent Enquiry Officer only by an order
dated 5.1.1988 and as there was a complaint about the non-
cooperation by the first respondent, (delinquent employee), it is
doubtful whether there was any case for even issuing a show-
cause notice to him. Be that as it may. We are not concerned with
the issue of show-cause notice to S.K. Das in this appeal. What is
relevant to be noticed is that the learned Single Judge could not
have made an order in the contempt proceedings, that Sri S.K. Das
had, by his conduct, disqualified himself to be the Enquiry Officer
and that he shall cease to be the Enquiry Officer and that another
Enquiry Officer shall be appointed.
21. There was also no justification for the further direction by the
learned Single Judge in the contempt proceedings, that too by an
interlocutory order, that the complainant should immediately and
forthwith be reinstated into the service of the Bank, and shall be
deemed to be in the service of the Bank all through, that the
employee shall not be prevented in any manner from discharging
his duties and that he shall be paid all arrears of salary within four
weeks, and that the suspension order shall be deemed to have
been revoked. These were totally outside the scope of the
proceedings for contempt and amounted to adjudication of rights
and liabilities not in issue in the contempt proceedings. At all
events, on the facts and circumstances, there was no disobedience,
breach or neglect on the part of the Bank and its President and
Secretary, to provoke the Court to issue such directions, even
assuming that such directions could be issued in the course of the
contempt proceedings. Hence, Directions (2) and (3) and the
direction relating to revocation of suspension are liable to be set
aside."
13. Mr. Chakraborty, learned Advocate representing the respondents,
argued that the appeals are not maintainable. The appeals have not been
filed under Section 19 of the Contempt of Courts Act, 1971 since they are
not appeals against an order or decision of the High Court in exercise of its
jurisdiction to punish for contempt. No punishment has been imposed on
the alleged contemnors. In fact, no Rule was issued.
14. Learned Counsel further submitted that the judgment and order
under appeal is also not a judgment within the meaning of Clause 15 of the
Letters Patent. The judgment and order under challenge has decided nothing
on merit. In this connection learned Advocate relied on the decision of the
Hon'ble Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd.
& Ors. v. Chunilal Nanda & Ors., (supra) which was also relied upon by
learned Advocate for the appellant.
15. Mr. Chakraborty then submitted that a mere observation in an order
which does not amount to a decision against a party to the lis, cannot be
challenged by way of appeal. In this connection learned Advocate relied on
the decision of Arun Kumar Aggarwal v. State of Madhya Pradesh &
Ors., reported at (2014) 13 SCC 707. In particular reliance was placed on
paragraphs 13, 37 and 38 of the reported judgment which read as follows:-
"13. We have heard the learned Counsel for the parties before us.
The short point in issue before us is based on the nature of the
order passed by the learned Special Judge whether it amounts to a
direction issued by the Court to the authority concerned or mere
observation of the Court.
37. The wordings of this order clearly suggest that it is not in the
nature of the command or authoritative instruction. This order is
also not specific or clear in order to direct or address any authority
or body to perform any act or duty. Therefore, by no stretch of
imagination, this order can be considered or treated as the
direction issued by the learned Special Judge. The holistic reading
of this order leads to only one conclusion, that is, it is in the
nature of "obiter dictum" or mere passing remark made by the
learned Special Judge, which only amounts to be expression of his
personal view. Therefore, this portion of the order dealing with the
challan proceedings, is neither relevant, pertinent nor essential,
while deciding the actual issues which were before the learned
Special Judge and hence, cannot be treated as the part of the
judgment of the learned Special Judge.
38. In the light of the above discussion, we are of the opinion that,
the portion of the order of the learned Special Judge which deals
with the challan proceedings is a mere observation or remark made
by way of aside. In view of this, the High Court had grossly erred in
considering and treating this mere observation of the learned
Special Judge as the direction of the Court. Therefore, there was
no occasion of the High Court to interfere with the order of the
learned Special Judge."
16. Learned Counsel then submitted that the appellants are not and
cannot be parties aggrieved since the contempt proceedings were decided in
their favour. Hence, no appeal would lie at their instance. In this connection,
reliance was placed on the observation of the Hon'ble Supreme Court at
paragraph 11 of the judgment in Adi Pherozshah Gandhi v. H.M. Seervai,
Advocate General of Maharashtra, Bombay, reported in (1970) 2 SCC
484. The relevant portion of the said paragraph reads as follows:-
"11. From these cases it is apparent that any person who feels
disappointed with the result of the case is not a 'person aggrieved'.
He must be disappointed of a benefit which he would have received
if the order had gone the other way. The order must cause him a
legal grievance by wrongfully depriving him of something. It is no
doubt a legal grievance and not a grievance about material matters
but his legal grievance must be a tendency to injure him. That the
order is wrong or that it acquits someone who he thinks ought to
be convicted does not by itself give rise to a legal grievance........"
17. Learned Advocate finally submitted that since the impugned order is
not appealable before a Division Bench either under Section 19 of the
Contempt of Courts Act, 1971, or under Clause 15 of the Letters Patent, the
only remedy of the appellants is to approach the Hon'ble Supreme Court by
way of a special leave petition under Article 136 of the Constitution of India.
18. In reply learned Advocate for the appellants submitted that the portion
of the impugned order by which the appellants are aggrieved does not
contain mere observations. It constitutes a conclusive finding that the
material relied upon by Kolkata Municipal Corporation/the Heritage
Conservation Committee, for declaring the building in question as a heritage
property, are not authentic. The HCC could not have taken the decision to
classify the concerned building as heritage property relying on such
material. Since there is a conclusive finding of facts which may adversely
affect the appellants and/or Kolkata Municipal Corporation, the appeals are
maintainable.
19. I have given my anxious consideration to the rival contentions of the
parties.
20. Although there are 21 grounds enumerated in the memorandum of
appeal, essentially ground nos. XVII and XVIII summarise them all. Those
grounds XVII and XVIII read as follows :-
"XVII. For that the learned Single Judge completely fell in error in
going into the merits of the matter and has assumed the role of
expertise while dealing with the contempt matter.
XVIII. For that the learned Judge while dealing with the contempt
matter was only concerned as to whether the alleged violation of
the order of the Hon'ble Court was deliberate and wilful or not and
once it comes to the conclusion that the violation was not
deliberate or wilful, the contempt proceeding comes to the end and
there could be no occasion to make any observation and/or
express any opinion, which would affect the decision taken by the
authority and the same would act as an impediment in the future
proceedings."
21. Let me first deal with the preliminary objection raised by the
respondents as regards maintainability of the appeal. It is not in dispute
that these appeals have not been filed under Section 19 of the Contempt of
Courts Act, (the said CC Act) 1971. The order assailed in the appeals is not
an order passed in exercise of jurisdiction to punish for Contempt of Court.
In fact, the learned Single Judge having held that although there was
violation of the order in question, such violation was not wilful. Hence the
Contempt proceedings were closed.
22. Will this appeal be then maintainable under clause 15 of the Letters
Patent? Would the judgment and order impugned in the appeal qualify as a
judgment within the meaning of Clause 15 of the Letters Patent? I think it
would. I have extracted above relevant paragraphs from decisions of the
Hon'ble Supreme Court on the point as to what would amount to a judgment
within the meaning of Clause 15 of the Letters Patent. If an order decides the
rights of any of the parties to a lis and such decision has the trappings of
finality i.e., the order may adversely affect a valuable right of the party or
decide an important aspect of the matter in an ancillary proceeding, the
same would be a judgment within the meaning of Clause 15.
23. In the present case, the issue before the learned Single Judge was
whether or not there was wilful violation of the judgment and order dated
July 18, 2016, whereby two writ petitions were disposed of, so as to amount
to contempt of Court? The learned Judge held that technically there was
violation of the order but the same was not intentional. In the course of so
holding, the learned Judge dilated on the merits of the decision of Kolkata
Municipal Corporation to declare the property in question as a Heritage
property. The learned Judge for all practical purposes held that the decision
of KMC was based on insufficient evidence the authenticity whereof was
highly doubtful. In other words, the learned Judge came to a finding that the
declaration of the concerned property as heritage was erroneous. However,
the learned Judge observed that since in the contempt proceedings His
Lordship could not nullify such declaration, the respondents/property
owners could reap benefit of such findings in future proceedings.
24. Learned Judge therefore finally decided a collateral issue which was
not the subject matter of the contempt petition. Such decision may well
adversely affect KMC's rights in any future legal action that the property
owners may initiate before a competent forum assailing the heritage status
of the property in question. Hence, in my considered opinion, the order
assailed in this appeal to the extent it holds that the concerned property
cannot be assigned heritage status, is a judgment within the meaning of
Clause 15 of the Letters Patent and is open to challenge in an intra-court
appeal.
25. The decision in the case of Arun Kumar Aggarwal v. State of
Madhya Pradesh & Ors., (supra) relied upon by the learned Advocate for
the respondents, the relevant portions whereof have been extracted above,
has no manner of application to the facts of the present case. It is true that
if an order is wholly in favour of a party to a lis, that party cannot maintain
an appeal against such order. However, if in the course of passing such
order, a learned Single Judge of the High Court records certain findings on
issues which are not subject matter of the proceedings, and if such findings
adversely affect or are likely to affect in future rights of the party in whose
favour the order is passed, in my view, that party would be entitled to assail
the order, although in its favour, for deletion of the remarks which are
adverse to that party's interest. Otherwise, in any future proceedings, that
party may suffer prejudice and may have to face the argument that not
having challenged the adverse observations in the earlier order, that party is
bound by the same. For the same reason, the decision in Adi Pherozshah
Gandhi v. H. M. Seervai, Advocate General of Maharashtra, Bombay,
(supra) relied upon by learned Advocate for the respondents, is also not
germane to the present facts. In our view, the appellants rightly claim to be
aggrieved parties - aggrieved by the observations of the learned Single Judge
leading to the finding that the property in question is not liable to be
declared as a heritage property.
26. For the reasons aforestated, I decide the issue of maintainability of the
appeal in favour of the appellants. In my view, the appeal is maintainable
under Clause 15 of the Letters Patent.
27. The only other question is whether or not the order impugned or any
portion thereof warrants interference by the appellate Court. Naturally the
entire order is not required to be interfered with since by the order the
learned Judge has dismissed the contempt applications which were
instituted against the present appellants.
28. However, the portions of the order pertaining to the merits of the
dispute between the parties that was the subject matter of the two writ
petitions, i.e. whether or not KMC was justified in assigning heritage tag to
the property in question, need to be expunged. The finding of the learned
Judge that KMC/HCC wrongly classified the concerned property as heritage,
was beyond the scope of the two contempt petitions resulting in these two
appeals. The only issue before the learned Judge was whether or not the
alleged contemnors were guilty of wilful violation of the relevant order passed
in the two writ petitions. His Lordship's conclusion was that there was
violation, but not wilful. In my view, the learned Judge should have stopped
there. The observations pertaining to the merits of the case were not called
for and strictly speaking, was beyond the jurisdiction that the learned Judge
was exercising under the Contempt of Courts Act read with Article 215 of the
Constitution of India. In this connection reference may be had to the
decision of the Hon'ble Supreme Court in the case of J. S. Parihar v.
Ganpat Duggar & Ors., (supra) the relevant paragraph whereof has been
extracted hereinbefore.
29. In the result, these appeals succeed. The observations/findings of the
learned Single Judge in the impugned judgment and order, pertaining to the
correctness of KMC's decision to declare the property in question as heritage
property stand expunged. The impugned judgment and order shall not be
construed as having made any observation/finding on the justifiability of
KMC declaring the concerned property as heritage property, in any future
proceedings, before any legal forum or otherwise. I hasten to clarify, as I
think I ought to, that this judgment of ours shall not be construed as having
put a stamp of approval on the decision of KMC/HCC to classify the property
in question as a heritage one. I have not gone into that aspect of the matter,
nor we were required to or competent to do so. This judgment only decides
that the learned Single Judge should not have made any pronouncement in
the impugned judgment and order, passed in contempt proceedings, on the
correctness or otherwise of the decision of KMC/HCC to declare the building
in question as a heritage property. Accordingly we have directed expunction
of the observations/findings of the learned Single Judge which pertain to the
merits of the decision of KMC/HCC to declare/retain the heritage status of
the concerned property.
30. The appeals being APO/190/2019 with APO/88/2019 are disposed
of accordingly without any order as to costs.
31. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
(ARIJIT BANERJEE, J.)
I agree.
(APURBA SINHA RAY, J.)
