Manubhai Kurjibhai Malaviya vs Aayush Oak, Collector, Surat
2022 Latest Caselaw 1457 Guj

     C/MCA/692/2021                                        ORDER DATED: 09/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 692 of 2021
           In R/SPECIAL CIVIL APPLICATION NO. 13037 of 2020
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                        MANUBHAI KURJIBHAI MALAVIYA
                                   Versus
                       AAYUSH OAK, COLLECTOR, SURAT
==========================================================
Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR VIRAL K SALOT(3500) for the
Applicant(s) No. 1
MR DM DEVNANI, ASST. GOVERNMENT PLEADER for the Opponent(s) No. 1
==========================================================

  CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
        KUMAR
        and
        HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                         Date : 09/02/2022
                          ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This complaint has been filed alleging

willful disobedience of the order dated 17.06.2020

passed in Special Civil Application No.13037 of 2020.

2. On issuing notice sole respondent has

appeared and filed the affidavit contending inter

alia that direction issued has been complied by

passing the order on 16.08.2021 which petitioner

himself has produced at Annexure-F and as such,

complainant has prayed for dismissal of the petition

with costs.

C/MCA/692/2021 ORDER DATED: 09/02/2022

3. We have heard Mr.Percy Kavina, learned

Senior Counsel appearing for the complainant and

Mr.D.M.Devnani, learned Assistant Government Pleader

appearing for the State.

4. It is the contention of Mr.Percy Kavina,

learned Senior Counsel that contemnor in order to

sidestep the order passed by this Court has resorted

to rejecting the claim of petitioner and he would

contend that if such course of action is taken by the

authorities is allowed to stand, it would not only

lead to chaotic situation in the administration

process but would also result in illegality being

perpetrated by the authorities by ignoring the writs

issued by this Court or passed by this Court. He

would elaborate his submissions by contending that if

such orders are allowed to be continued, it will

amount to giving licence for illegality being

perpetrated. He has further submitted that canvassing

of lip service would not suffice and when orders are

passed by the Court referring to its earlier orders,

same has to be followed by the contemnors in its

letter and spirit and not by ignoring it as has

happened in the instant case. He would contend that

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on more than one occasion this Court has held that

orders passed in respect of civil litigations ought

not to be taken into consideration, same has been

given a complete go-bye and as such he submits that

contemnors should be proceeded by framing charge

against them.

5. Per contra, Mr.D.M.Devnani, learned

Assistant Government Pleader appearing for the State

would submit that since direction issued by the

learned Single Judge was to the effect that fresh

orders are to be passed and same having been passed

by taking into consideration all the relevant facts,

there is neither disobedience nor willful

disobedience for framing the charge against the

contemnors. Hence, he prays for rejection of the

petition.

6. Having heard the learned advocates

appearing for the parties, we are of the considered

view that it would be apt and appropriate to notice

that under Section 12 of the Contempt of Courts Act,

1971, the said power has to be exercised to punish a

contemnor who has committed the breach of the order

C/MCA/692/2021 ORDER DATED: 09/02/2022

namely where there is willful breach or willful

disobedience of any judgment or order of the Court.

This is an extraordinary jurisdiction vested in a

Court to punish a person who willfully disobeys the

order of the Court or who attempts to pollute the

stream of justice. It is trite law that Court dealing

with an application for contempt of Court cannot

travel beyond the order. It would not be in the

domain of the Court adjudicating the contempt to test

the correctness or otherwise of an order which is

alleged to have been violated. In other words, said

Court would neither add nor delete any word, sentence

or paragraph of such order which is alleged to have

been violated. If such an exercise is undertaken, it

would definitely amount to exercising review or

appellate jurisdiction which would be impermissible.

Willful disobedience of Court's order is or means a

deliberate, conscious and intentional act. Thus, in a

contempt proceeding what is required is proof beyond

reasonable doubt since the proceedings are quasi-

criminal in nature. While dealing with a contempt

petition or application, Court is not expected to

conduct a roving inquiry and traverse beyond the very

C/MCA/692/2021 ORDER DATED: 09/02/2022

judgment which is allegedly violated. In other words,

this Court will have to go with blinkers namely to

find out as to whether respondent/contemnor has

willfully disobeyed the order of the Court or

violated the same deliberately.

7. Hon'ble Apex Court in the case of V.

Senthur and Another Vs. M. Vijayakumar, IAS,

Secretary, Tamil Nadu Public Service Commission &

Another reported in 2021 SCC OnLine SC 846, after

referring to catena of judgments has held :

"15. There can be no quarrel with the proposition that in a contempt jurisdiction, the court will not travel beyond the original judgment and direction; neither would it be permissible for the court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. The court is only concerned with the wilful or deliberate non-compliance of the directions issued in the original judgment and order."

8. In the matter of K.Arumugam vs.

Balakrishnan and others reported in 2019 (18) SCC

150, Hon'ble Apex Court after having held that Courts

cannot travel beyond the order alleged to have been

flouted or enter into question that have not been

dealt with or decided in the judgment or order of

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violation of which is alleged, has also held that it

has to be tested having regard to subject-matter of

proceedings in which it is made and the nexus between

alleged contumacious act or in other words it has

been held that while exercising the contempt

jurisdiction, the Court has to confine itself to four

corners of the order alleged to have been disobeyed.

It is further held :

"18. In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. Observing that in the contempt jurisdiction, the court cannot travel beyond the four corners of the order which is alleged to have been floated, in Sudhir Vasudeva v. M. George Ravishekaran [Sudhir Vasudeva v. M. George Ravishekaran, (2014) 3 SCC 373] , speaking for the Bench, Ranjan Gogoi, J., held as under : (SCC pp. 381- 82, para 19) "19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self- determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are

C/MCA/692/2021 ORDER DATED: 09/02/2022

explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [Jhareswar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352 : 2002 SCC (L&S) 703] , V.M. Manohar Prasadv. N. Ratnam Raju [V.M. Manohar Prasad v. N. Ratnam Raju, (2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami [Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami, (2008) 5 SCC 339] and Union of India v. Subedar Devassy PV [Union of India v. Subedar Devassy PV, (2006) 1 SCC 613]." (emphasis supplied)

9. We may hasten to add that while examining

an application or a petition filed for alleged

contempt or while exercising contempt jurisdiction in

the domain of the contempt law, this Court would not

trench upon either review jurisdiction or appellate

jurisdiction. In the matter of Sudhir Vasudeva,

Chairman and Managing Director, Oil and Natural Gas

Corporation Limited and others vs. M. George

C/MCA/692/2021 ORDER DATED: 09/02/2022

Ravishekaran and others reported in 2014 (3) SCC 373,

the Hon'ble Apex Court has set at naught the

supplemental order passed after the main order was

passed in the writ petition while exercising the

contempt jurisdiction on the ground that such an

exercise was impermissible. It has also been held :

"19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self- determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles

C/MCA/692/2021 ORDER DATED: 09/02/2022

would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 : 2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance Service House ConstructionCoop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and Union of India v. Subedar Devassy PV [(2006) 1 SCC 613]."

10. In the background of the aforesaid

authoritative principles of law enunciated by the

Hon'ble Apex Court, when we turn our attention to the

facts on hand, it would emerge from the case-papers

that complainant claiming as owner of the land

bearing Survey No.4/1 of village Vesu, Taluka Majura,

District Surat, which came to be reconstituted as

Final Plot No.12 admeasuring 3893 sq.mtrs. in

T.P.Scheme No.1 (Vesu) after having purchased the

said land under a registered Sale Deed on 30.09.2006

filed an application before the Collector, Surat,

during the year 2019 for grant of permission namely

to convert the land to non-agricultural purposes. An

objection was raised by a private person on the

ground of pendency of civil proceedings with regard

to the said land and claiming right, title and

interest over the land. The said objection was

overruled by order dated 07.03.2019. However, the

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prayer of the petitioner for converting the land to

non-agricultural purposes came to be rejected on the

ground there are other disputes relating to said land

were pending. Again on 20.02.2020, petitioner filed

one more application renewing his request or prayer

for conversion. Said prayer came to be rejected vide

order dated 29.07.2020 and it was the subject-matter

of challenge in Special Civil Application No.13037 of

2020 which came to be allowed by the learned Single

Judge by order dated 17.06.2021 and directed the

Collector to reconsider the application. The learned

Single Judge while examining the prayer of the

complainant and after taking note of the earlier

orders passed by this Court allowed the petition in

part and remanded the matter back to the Collector.

In the words of the learned Single Judge order

reads :

"6. In view of the aforesaid, the petition is partly allowed. Rule is made absolute to aforesaid extent only with no order as to costs. The matter is relegated back to the Collector to take a decision on the application of the petitioner for the NA permission in connection with the land bearing Survey/Block No.4/1, Final Plot No.12 admeasuring 3893 square meters in T.P. Scheme No.1 of Village-Vesu, District-Surat. Therefore, without being influenced by the

C/MCA/692/2021 ORDER DATED: 09/02/2022

impugned order of the Collector, the aforesaid exercise to be concluded preferably within the period of eight weeks from the date of the receipt of the writ of this judgment.

7. To overcome the technical issue, learned Advocate for the petitioner undertakes to make an application afresh for the same purpose before the Collector. This application be decided as directed in preceding para-6."

11. It is this direction which is alleged to

have been violated. Petitioner himself admits in the

complaint or this contempt proceedings that contemnor

has rejected his application by order dated

16.08.2021 which is produced at Annexure-F. Though

Mr.Percy Kavina, learned Senior Counsel appearing for

the complainant has made a valiant attempt to

buttress his argument that the sum and substance of

the order passed by the learned Single Judge and/or

the background in which the direction was issued to

the contemnor to consider the application will have

to be looked into, such an exercise would be alien to

be considered in contempt proceedings. In the light

of the judgments of the Apex Court referred to

hereinabove and within the limited scope as to

whether the directions issued by the learned Single

Judge is complied or not will only have to be

C/MCA/692/2021 ORDER DATED: 09/02/2022

examined. Nothing more or nothing less. Even

otherwise when the order which has been passed on

16.08.2021 is perused, it would indicate that apart

from reasons which has been assigned in paragraphs 1

and 2 of said order which was also assigned in the

previous order, the additional reason which has been

assigned is that the objection raised by Mrs.Bhanuben

wife of Thakorbhai Patel which was rejected by him on

07.03.2019 is now the subject-matter of Revision

Application No.GKP/ST/12/2019 which revision has

been admitted and is pending before the Secretary

(Appeals), Revenue Department, Ahmedabad. When two

views are possible if one view is taken by the

authority to reject the prayer, this Court in

exercise of contempt jurisdiction would not

substitute its view to that of the view expressed by

the authorities. As to whether such a view could have

been taken or not, would not be amenable to scrutiny

in contempt jurisdiction. The remedy lies elsewhere.

12. The complainant knowing fully well that his

application for grant of N.A. permission had been

rejected on 16.08.2021 (Annexure-F), without

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challenging the same has filed the present contempt

petition which resulted in issuance of notice vide

order dated 28.10.2021 and consequential reply

affidavit being filed by contemnor reiterating his

order dated 16.08.2021 which was not warranted or in

other words could have been plainly avoided. As such,

we are of the considered view that complainant

requires to be mulcted with costs.

13. Hence, the following

ORDER

(i) Contempt Application is dismissed with

costs.

(ii) We direct the complainant to pay a

sum of Rs.10,000/- to the office of the

Collector, Surat, within an outer limit of

four weeks from the date of this order,

failing which the Collector would be at

liberty to recover the same from the

complainant as arrears of land revenue.

(iii) It is made clear that we have not

expressed any opinion with regard to the

merits of the communication dated 16.08.2021

C/MCA/692/2021 ORDER DATED: 09/02/2022

or on the merits of the claim made by

petitioner - complainant and it would be open

for the complainant to challenge the

communication dated 16.08.2021 (Annexure-F)

before appropriate forum in accordance with

law.

(ARAVIND KUMAR, CJ)

(NIRAL R. MEHTA, J) GAURAV J THAKER