Rasheed Ahmad Peerzada vs Chairperson J&K Special Tribunal
2023 Latest Caselaw 647 j&K/2

       IN THE HIGH COURT OF JAMMU AND KASHMIR
                     AT SRINAGAR

                                              Reserved on: 15.05.2023
                                              Pronounced on: 25.05.2023

                          WP(C) No.2203/2022
                           CM No.5545/2022
                           CM No.5673/2022

RASHEED AHMAD PEERZADA                            ...PETITIONER(S)
      Through: - Mr. J. H. Reshi, Advocate.
Vs.

CHAIRPERSON J&K SPECIAL TRIBUNAL
AND OTHERS                   ...RESPONDENT(S)
      Through: - Mr. Mohsin Qadiri, Sr. AAG-for R1.
                     Mr. Moomin Khan, Advocate-for R2 to R5
                     Mr. Altaf Haqani, Sr. Adv. With
                     Mr. Asif Wani, Advocate-for R6&R7.

CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                 JUDGMENT

1) The petitioner invokes extraordinary writ jurisdiction vested in

this Court by Article 226 of the Constitution of India to seek a Writ of

Certiorari to quash order dated 13th September, 2022, passed by the J&K

Special Tribunal to the extent and in so far it effects the right of the

petitioner to raise construction of his residential house in conformity

with the building permission granted by the Srinagar Municipal

Corporation ["SMC"]. The petitioner also calls in question order dated

14th September, 2022, passed by respondent No.4 i.e., Chief

Enforcement Officer, SMC, Srinagar, whereby the petitioner has been

directed to stop the construction work on spot.

2) Briefly put, the facts relevant to the disposal of controversy raised

in this petition are that vide order No.121 of 2021 dated 3rd June, 2021,

competent authority (Commissioner, SMC), granted building permission

in favour of the petitioner for construction of three storied residential

house and erection of compound wall after dismantling the existing

house. Pursuant to the building permission granted, the petitioner started

raising construction after dismantling the existing construction. Two

neighbours of the petitioner, namely, Fayaz Ahmad Malik and Farooq

Ahmad Wani, challenged the building permission granted by SMC in

favour of the petitioner by way of a revision petition filed under Section

403 of the Jammu and Kashmir Municipal Corporation Act, 2000 ["the

Act of 2000"]. It was alleged that the writ petitioner had started raising

construction in violation of the building permission, in that, he had

constructed a basement without there being any permission for such

construction.

3) Be that as it may, the revision petition was contested by the writ

petitioner. The Tribunal, after hearing both the parties and regard being

had to the report of the Ward Officer, allowed the revision petition

holding that the writ petitioner had raised construction in deviation to the

permission and, therefore, had rendered himself to action under

stipulation No.7 of the building permission dated 3 rd June, 2021. The

Tribunal, thus, remanded the matter to Commissioner, SMC, for taking

action in accordance with his order of granting permission dated 3rd

June, 2021 under intimation to the Tribunal. The revision petition was

decided by the Tribunal vide its order dated 8th April, 2022.

Indisputably, the writ petitioner has not challenged this order of the

Tribunal and, therefore, the same has attained finality.

4) It seems that the Commissioner, SMC, to whom the matter was

remanded by the Tribunal, did not cancel or withdraw the permission

granted by invoking stipulation No.7 of the building permission order.

He, however, called upon the writ petitioner to remove the

deviation/violation before he could be permitted to raise the

construction. The writ petitioner obeyed the directions of the

Commissioner, SMC, and removed the violation committed by him in

the shape of construction of basement. The Joint Commissioner,

Planning, SMC, vide his order dated 10th August, 2022, taking note of

the fact that the writ petitioner had removed the violation and had also

submitted an affidavit/undertaking sworn in before the Judicial

Magistrate, 1st Class, Srinagar, that he shall fill up underground

cavity/basement, directed respondent No.4 to allow the writ petitioner to

construct the remaining portion of the structure as per the granted

building permission. Respondent No.4 was also directed to ensure that

the writ petitioner fills up the underground cavity/basement in full.

5) Feeling aggrieved by the manner in which SMC had acted in

response to the order passed by the Tribunal while disposing of the

revision petition, M/S Fayaz Ahmad Malik and Farooq Ahmad Wani

filed a petition for initiating contempt proceedings against Mr. Ghulam

Hassan, Joint Commissioner, SMC, for willful defiance of the orders

passed by the Tribunal. The matter was considered by the Tribunal and

vide order impugned dated 13th September, 2022, the Tribunal, after

hearing the petitioners therein and Mr. Ghulam Hassan, Joint

Commissioner, SMC, kept the order dated 10th August, 2022 passed by

the Joint Commissioner, SMC, in abeyance. The Tribunal also directed

the Ward Officer to stop the construction forthwith. A further direction

was issued to submit a status report containing complete measurements

along with fresh photographs vis-à-vis construction in question. The

matter was fixed for further proceedings on 18th October, 2022. It is this

order which has been assailed by the writ petition in this petition.

6) Mr. J. H. Reshi, learned counsel for the petitioner, has raised two

points for consideration of this Court; one whether the J&K Special

Tribunal is vested with power and jurisdiction to initiation contempt

proceedings against the violators of its orders and punish them for

committing contempt; and second, whether the Tribunal, in exercise of

contempt jurisdiction, if any vested in it, can issue fresh directions.

7) Having heard learned counsel for the parties and perused the

material on record, the first question that calls for determination by this

Court relates to the contempt jurisdiction of the Tribunal.

8) The answer to this question is not far to be sought. The Jammu

and Kashmir Special Tribunal is constituted under Section 4 of the

Jammu and Kashmir Special Tribunal Act, 1988 ["the Act of 1988"].

Section 3 of the Act of 1988 provides that notwithstanding anything

contained in any law made by the State Legislature, but save as

otherwise provided in sub-section (2), an appeal, revision or review

petition, which under any such law lies to the Government or a Minister,

shall, from such date as may be appointed by the Government by a

notification in the Government Gazette, lie or be so preferred, brought,

made or presented to the Tribunal. It is further provided that any

reference in any provisions of such law, providing for appeal, revision or

review, to the Government or Minister, shall be construed as a reference

to the Tribunal. By virtue of sub-section (2) of Section 3, appeals,

revisions or review petitions arising out of or under the provisions of the

Jammu and Kashmir Grant of Permanent Resident Certificate

(Procedure) Act, 1963, have been excluded from the purview of the Act

of 1988. The Tribunal has also been conferred all the jurisdiction,

powers and authority in relation to such appeals, revision and review

petitions as the Legislature may by law provide.

9) This brings me to Section 403 of the Act of 2000, which, for

facility of reference, is reproduced as under:

"403.Power of revision. The Government may at any time, for the purposes of satisfying itself as to the correctness, legality, propriety or regularity of any proceeding or order passed by any officer of the Government or the Commissioner or any officer subordinate to him, call for and examine the record and may pass such order with reference thereto as it may think fit.

10) As would be seen, Section 403 of the Act of 2000 confers power

of revision on the Government, which may, at any time, call for and

examine the record for the purposes of satisfying itself as to the

correctness, legality, propriety or regularity of any proceeding or order

passed by any officer of the Government or the Commissioner or any

officer subordinateto him and pass such order with reference thereto as it

may deem fit. The order of demolition passed either by the

Commissioner or any officer subordinate to him is, thus, amenable to

revisional jurisdiction of the Government.

11) By operation of Section 3 of the Act of 1988, the power of

revision is exercisable by the Tribunal. The Act of 1988 is a brief

legislation containing only 10 Sections. Sections 3 and 4 are already

dealt with. Section 5 pertains to the eligibility for appointment of a

Chairman or a Member of the Tribunal. Section 6 relates to the functions

to be discharged by the Tribunal. Section 7 pertains to the procedure to

be followed in pending appeals. Section 8 gives protection to the

Chairman and the members by declaring them to be public servants

within the meaning of Section 21 of RPC. Section 9, which is of

significance for us, deals with power of the Government to make rules.

Section 9 reads thus:

"Power to make rules. The Government may, by notification in the Government Gazette, make rules for carrying out the purposes of this Act."

12) There should be no denying the fact that the primary and foremost

purpose for creation of the Tribunal is to perform, in place of

Government or Minister to the Government, adjudicatory function of

hearing appeals, revision and review petitions arising under any law

made by the State Legislature. The procedure to perform this vital

adjudicatory function has been spelled out in the Jammu and Kashmir

Special Tribunal Rules, 1986, framed under Section 9 of the Act of

1988. Rule 21 of the said Rules is relevant in the context of controversy

on hand and the same is, thus, set out below:

21. The Tribunal constituted under Section 4 of the Act shall have the powers of the Civil Court in respect of the following matters:

a) summoning and enforcing the attendance of any person or witness and examining him on oath or solemn affirmation;

b) requiring the discovery or production of any document relating to subject-matter;

c) receiving evidence on affidavits;

d) issuing commissions for the examination of witnesses, documents or other books relating to the subject-matter;

e) to punish a person for contempt in relation to itself or any member thereof; and

f) to do all things necessary for and incidental to the discharge of its functions under the Act.

13) From a plain reading of Rule 21, it is evident that the Tribunal has

been vested with powers of civil court, inter alia, to punish a person for

contempt in relation to itself or any member thereof. Before proceeding

further, I deem it appropriate to mention that the petitioner has not called

in question the vires of Rule 21. As is further evident that a civil court

under the Code of Civil Procedure or under the Contempt of Courts Act,

1971, is not vested any specific power to punish a person for committing

contempt of itself. Rule 21(e) clearly and unequivocally treats the

Tribunal as „civil court‟ when it lays down that the Tribunal shall have

all the powers of civil court in respect of contempt of itself and any of its

members. If would signify that like a civil court subordinate to High

Court, the Tribunal may refer the matter to High Court for punishing a

person who commits contempt of the Tribunal, civil or criminal. The

only power which is traceable under the Code of Civil Procedure in this

regard is the power of the Civil Court to punish for disobedience of its

interim orders of injunction. Order 39 Rule 2-A of CPC confers such

power. At this stage, it would be proper to set out Order 39 Rule 2-A as

well to appreciate the power of the civil court to deal with disobedience

of the interim orders passed by it in the civil litigation pending before it:

"2-A. Consequences of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison, for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

14) From the above discussion based on the plain reading of the

relevant provisions, it is abundantly clear that the J&K Special Tribunal,

which is a creature of the Act of 1988, has not been specifically

conferred any power to punish a person for committing contempt of

itself or any member thereof. The powers given under clause (e) of Rule

21 (supra) are not more than the powers which are vested in the Civil

Court in respect of its contempt. It is, thus, held that while the Tribunal

shall have power to punish a person for disobedience of its interim

orders, it shall lack jurisdiction or competence to initiate an action for

proceeding against a person to punish him for contempt, either in

relation to itself or any member thereof. The Contempt of Courts Act,

1971 does not confer such power either on the Tribunal or on the Civil

Court. Article 215 of the Constitution of India confers contempt

jurisdiction on the High Court to punish for contempt of itself or any

court subordinate thereto.

15) Indisputably, the Tribunal performs adjudicatory function. The

Tribunal is a creation of statute i.e., an Act of State Legislature and

derives its jurisdiction and competence from it. I have gone through each

provision of the Act of 1988 and entire body of rules framed thereunder

but could not trace out, directly or indirectly, any power of contempt

conferred on the Tribunal. Rule 21 is already explained hereinabove.

Similarly, J&K Municipal Corporation Act, which confers upon the

Government the power of revision under Section 403, which, in terms of

Section 3 of the Act of 1988, is exercisable by the Tribunal, contains no

provision in relation to contempt of revisional authority. That being the

clear position emerging from the relevant statutory provisions, it is

difficult for this Court to concede any contempt jurisdiction in favour of

the Tribunal in the absence of specific statutory prescription.

16) Having held thus, the next question that begs determination in this

matter is whether Tribunal can be regarded as a "court subordinate to

High Court" so as to attract the applicability of Article 215 of the

Constitution of India and Section 12 of the Contempt of Courts Act,

1971.

17) Wade & Forsyth in Administrative Law, 2009 Edition, prescribes

following testes to be applied to determine the legal status of a Tribunal:

              (i)     Every Tribunal is constituted by an Act of

                      Parliament or an Act of State Legislature;


              (ii)    Decisions of the Tribunals are judicial and not

                      administrative;

(iii) Tribunals not only deal with cases in which

Government is a party but also adjudicates the

dispute between the private parties;

              (iv)    The Tribunals are independent in the matter of

                      adjudication      and   are   not      subject   to

administrative interferences. No authority can

dictate to Tribunal as to how and in what

manner they should decide;

(v) Tribunal is vested with adjudicatory powers

which it derives from Statute;

18) Apart from Administrative Tribunals constituted under Article

323A and 323B of the Constitution, there are Tribunals constituted under

various legislations to deal with complex problems involving technique

and expertise, which ordinary courts do not possess. Realistically,

Tribunals and courts share a common feature, in that, both discharge

judicial functions and exercise judicial powers normally vested in the

sovereign authority. However, Tribunal‟s powers are limited to special

matters which they have to deal dispassionately, in that, they do possess

the trappings of a court. The decisions of the Tribunals are not normally

interfered with by the High Courts or the Supreme Court on the ground

that the decision of the Tribunal is based on wrong appreciation of

evidence. The judicial review over Tribunal‟s decision can be exercised

on the following grounds:

             i)      Acting without jurisdiction or excess of

                     jurisdiction; or


             ii)     Not observing the procedures laid down by

                     law;

             iii)    Acting in violation of principles of natural

                     justice like not providing an opportunity of

                     being heard to the party concerned or acting

                     on extraneous material considerations;

             iv)     Decisions not supported by any reason;

19) Ordinarily, the decisions of many Tribunals including the Tribunal

under discussion are final though subject to the power of judicial review

vested in the High Court and the Hon‟ble Supreme Court under Articles

226 and 32 of the Constitution of India respectively. In Thakur Jugal

Kishore Sinha vs. Sitamarhi Central Cooperative Bank Ltd. & Anr,

[AIR 1967 SC 1494], the Apex Court held that the Assistant Registrar

of Cooperative Society adjudicating a cooperative dispute is a court and

must have the same power of the court to punish for contempt. After

discussing the issue at some length and placing reliance upon its various

authoritative pronouncements, in particular those rendered in the cases

of Brajnandan Sinha vs Jyoti Narain AIR 1956 SC 66, Bharat Batik

Limited v. Employees of Bharat Bank Ltd (1950) SCR 459, Maqbool

Hussain v. State of Bombay (1953) SCR 730 and Cooper v. Wilson

(1937) 2 KB 309,340, the Apex Court concluded that in order to

constitute a court in the strict sense of the term, an essential condition is

that the court should have, apart from having some of the trappings of a

judicial tribunal, power to give a decision or a definitive judgment which

has finality and authoritativeness which are the essential tests of a

judicial pronouncement. The Hon‟ble Supreme Court in particular made

a reference to the judgment in the case of Cooper v. Wilson, which was

later referred to in Brajnandan Sinha's case, which, for facility of

reference, is set out below:

"A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:--(I) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by

means of evidence adduced by the parties to the dispute and, often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law".

20) Having regard to the aforesaid prerequisites, the Hon‟ble Supreme

Court held that the Assistant Registrar, Co-operative Societies,

exercising the powers of the Registrar, Cooperative Societies,

under Section 48 of the Bihar and Orissa Cooperative Societies Act,

1935,was a "court" within the meaning of Contempt of Courts Act,

1952. As a matter of fact, the Hon‟ble Supreme Court in the aforesaid

case had framed following three questions:

1) Whether the Assistant Registrar of Co-operative Societies was a court within the meaning of the Contempt of Courts Act, 1952;

      (2)    Even if it was a court, whether it was a court
             subordinate to the Patna High Court; and

      (3)    Whether the words used by the appellant in one of

his grounds of appeal to the Joint Registrar of Co- operative Societies, which formed the basis of the complaint, did amount to contempt of any court;

21) This Court may not be concerned with third question which is a

question of fact. The first question was answered in the manner

explained above. So far as question No.2 is concerned, the Hon‟ble

Supreme Court concluded that by virtue of Article 227 of the

Constitution of India, the High Court exercises judicial control over all

courts and tribunals functioning within the limits of its territorial

jurisdiction and, therefore, all the tribunals, which meet the attributes of

a court, shall be deemed to be „courts subordinate to the High Court‟.

The Hon‟ble Supreme Court also clarified that subordination for the

purposes of attracting applicability of Contempt of Courts Act means

judicial subordination and not subordination under the hierarchy of

courts under the Civil Procedure Code or the Criminal Procedure Code.

In a nutshell, the Hon‟ble Supreme Court held that the Assistant

Registrar, Co-operative Societies, exercising the powers of the Registrar,

Cooperative Societies, was a „court‟ subordinate to the High Court.

22) True it is that the Contempt of Courts Act, 1971, does not define

the term „court‟ but the „court‟ under the Act of 1971 means the

authority which has the legal power to give judgment, which, if

confirmed by some authority would be definitive, binding and

authoritative.

23) From the analysis of the case law on the point, following essential

attributes of a Tribunal to be treated as „court‟ for the purposes of

Contempt of Courts Act may be culled out:-

      i)     Legal power to give a give a judgment, which if

             confirmed by some other authority would be

             definitive


      ii)    Power to regulate legal rights by the delivery of

             definitive judgments;

iii) Power to enforce its orders by legal sanctions; and

iv) Procedure followed must be judicial in character in

such matters as the taking of evidence and the

administration of oaths;

24) When we apply these tests to the Tribunal under discussion, we

find that the Tribunal exercises the power of adjudication of appeals,

revisions and review petitions which under different Acts of Legislature

lie to the Government or a Minister. Under Rules of 1986, any such

appeal, revision or review is required to be presented in the shape of

memorandum to the Tribunal bearing proper stamp duty. On its

presentation before the Registrar/Deputy Registrar of the Tribunal, it is

presented before a Bench of the Tribunal for consideration. If the

Tribunal entertains the said appeal, revision or review the parties to the

dispute are notified the date and place of hearing and is served with a

copy of the memorandum of such appeal, revision or review, as the case

may be, along with notice. In terms of Rule 21 of the Rules of 1986, the

Tribunal is conferred the powers of Civil Court in respect of various

matters, which we have already indicated hereinabove, which, inter alia,

include summoning and enforcing of attendance of any person or

witness, their examination on oath or solemn affirmation, requiring the

discovery or production of any document relating to the subject matter,

receiving of evidence on affidavits, issuing commissions for examination

of witnesses etc. etc. There is a period of limitation for filing appeal,

review, revision under the Act. The Tribunal is further given the power

under Rule 23 of the Rues of 1986 to call for the record of subordinate

courts/authorities. The Tribunal is also empowered to make spot

inspection, if necessary. There is further a provision that in case there

arises any question of law, the same shall be decided by the Full Bench

of the Tribunal consisting of at least the Chairman and two members of

the Tribunal.

25) From a reading of the entire scheme of the Act and the Rules

framed thereunder, we will find that all the attributes that make a

Tribunal a „court‟ for the purpose of Contempt of Courts Act, 1971, are

present in the case of Tribunal in question. I have, therefore, no

hesitation to hold that the Tribunal is a „court‟ for the purpose of Section

10 of the Contempt of Courts Act, 1971. The judgments cited by Mr.

Haqani, learned senior counsel appearing for respondents No.6 and 7,

also support the view I have taken.

26) In view of the law laid down by the Supreme Court in Thakur

Jugal Kishore Sinha's case, it is no more res integra that the Tribunals,

which are subordinate to the High Court, are subject to the supervisory

jurisdiction of the High Court under Article 227 of the Constitution of

India. That apart, the High Court also exercises the power of judicial

review against the orders passed by the Statutory Tribunals.

27) Viewed thus, there is no escape from holding that the J&K Special

Tribunal constituted under the Act of 1988 is a „court‟ subordinate to the

High Court for the purposes of Section 10 of the Contempt of Courts

Act, 1971. In appropriate cases where the authority of the Tribunal is

undermined or its orders are flouted or disobeyed, the Tribunal can refer

the matter to the High Court, which, under Section 10 of the Contempt

of Courts Act, 1971, shall be within its powers to invoke its contempt

jurisdiction and punish the contemnor for committing the contempt of

the Tribunal.

28) Otherwise also, under Rule 21 of the Rules of 1986, the J&K

Special Tribunal is conferred the power of Civil Court to punish a person

for contempt in relation to itself or any member thereof. Under Rule 21

the Tribunal is treated as a Civil Court for the purposes of punishing a

person for contempt in relation to itself or any member thereof. As I

have already clarified that the Civil Court, per se, does not have any

jurisdiction to punish for its contempt but it can refer the matter to the

High Court being a court subordinate to the High Court. Article 215 of

the Constitution read with Section 10 of the Contempt of Courts Act,

1971, empowers the High Court to punish a person for contempt of its

subordinate courts. It needs to be further clarified that under Section 10

of the Contempt of Courts Act, 1971, High Court has the power to

punish for contempt of courts subordinate to it provided such contempt

is not an offence punishable under the Indian Penal Code.

29) It was argued by learned counsel for the petitioner that Rule 21,

which is strongly relied upon by learned counsel for the respondents, is

beyond the rule making power of the Government and, therefore, it must

be declared as ultra vires the Act.

30) I am afraid I cannot embark upon such exercise, more particularly

when the vires of Rule 21 is not challenged in this petition nor any

foundation for such challenge has been laid therein. Prima facie, Rule 21

is within the rule making power of the Government conferred under

Section 9 of the Act of 1988, whereby the Government has been

conferred power to make rules for carrying out purposes of the Act. The

main object and primary purpose of the Act of 1988 is to provide

independent adjudicatory forum to hear and decide appeals, revisions

and review petitions arising under any law made by the State

Legislature, which before the promulgation of the Act of 1988 were

being heard and decided by the Government or a Minister. With a view

to effectuate efficient working of the Tribunal(s), necessary powers are

required to be conferred upon it and one such power is the power to

punish a person for disobedience of its orders on the analogy of the

power conferred on the Civil Courts under Order 39 Rule 2-A of the

Code of Civil Procedure. There is, however, no quarrel with regard to

the proposition propounded by Mr. J. H. Reshi supported with few

judgments that rule making authority cannot frame rules which are

contrary to and beyond the rule making power conferred upon it by the

principal Act.

31) The term "contempt of court" as defined in clause (a) of Section 2

of the Contempt of Courts Act, 1971, means civil or criminal contempt.

Sections 175, 178, 179, 180 and 228 are the relevant Sections in Chapter

X of the Indian Penal Code, which deal with the contempt of lawful

authority of public servants conducting judicial proceedings. Under

Section 345 of Cr. P. C, proper procedure is laid down where the

offences punishable under the aforesaid Sections are committed in the

view or presence of any Civil, Criminal, or Revenue Court. It confers

upon such Courts the power to take cognizance of the offence and award

punishment after giving the offender a reasonable opportunity of

showing cause. Such Court can sentence an offender to fine not

exceeding two hundred rupees, and, in default of payment of fine, to

simple imprisonment of term which may extend to one month, unless

such fine be sooner paid. Section 346 of Cr. P. C further provides that if

the Court is satisfied that a person accused of any of the offences

referred to in Section 345 and committed in its view or presence should

be imprisoned otherwise than in default of payment of fine, or that a fine

exceeding two hundred rupees should be imposed upon him, it can,

instead of disposing of the case under Section 345, forward the case to a

Magistrate having jurisdiction to try the same.

32) From a reading of Sections 345 and 346 of Cr. P. C, it clearly

transpires that the contempt of lawful authority of public servants

including those conducting judicial proceedings, is an offence under the

Indian Penal Code for which an adequate punishment is provided under

Section 345 of Cr. P. C to be awarded by the Court in a case where such

contempt is committed in the view or presence of any Civil, Criminal, or

Revenue Court. It is, thus, evident that the Tribunal, which has all the

attributes of a „court‟, shall have the power to punish a person for

committing the contempt in the view or presence of such court, which is

an offence under Sections 175, 178, 179, 180 or Section 228 of the

Indian Penal Code.

33) I have made the aforesaid observation only to bring home the

point that the J&K Special Tribunal is not a toothless body altogether

and is possessed of sufficient powers to deal with the citizens who dare

to commit its contempt. Though it is ideal as also to make the

functioning of the Tribunal effective to make an amendment in the Act

of 1988 to confer upon it specifically the power to punish for contempt

in relation to itself or any member thereof, as has been done in various

statutes. The Administrative Tribunals constituted under the

Administrative Tribunals Act, 1985, National Company Law Tribunal

and the National Company Law Appellate Tribunal constituted under the

Companies Act have been specifically conferred the powers to punish

for contempt of itself, which power is akin and identical to the power

conferred upon the High Courts under Article 215 of the Constitution of

India and Section 10 of the Contempt of Courts Act. It is, however, for

the Legislature vested with the power to legislate to take a call in this

regard.

34) In the premises it is sufficient for me to hold as under:

(I) That the Tribunal is not vested with any power,

directly or indirectly, to punish for contempt in

relation to itself or any member thereof;

(II) That under Rule 21 of the Rules of 1986, the Tribunal

is conferred the power of Civil Court to punish a

person for contempt in relation to itself or any

member thereof.

(III) Since the Civil Court is not vested with any power to

punish a person for contempt in relation to itself, as

such, such power should be understood to mean the

power conferred upon a Civil Court under Order 39

Rule 2-A of the Code of Civil Procedure, to punish

for disobedience of interim injunctions passed by a

Civil Court under Rules 1 and 2 of Order 39 of the

Code of Civil Procedure only. That would mean that

the Tribunal too shall have jurisdiction to punish a

person for disobedience of its interim orders of

injunction passed to maintain the equilibrium or to

preserve the lis etc. etc.

(IV) That the Tribunal shall be deemed to be a „court‟

subordinate to the High Court for the purposes of

Section 10 of the Contempt of Courts Act and,

therefore, shall be well within its powers to refer an

appropriate case to the High Court for initiating

appropriate proceedings against the violators of its

orders or against those who commit its criminal

contempt.

(V) That the Tribunal shall also be entitled to proceed

under Section 345 of the Cr. P. C, where the contempt

committed in the view of or in presence of the

Tribunal is an offence described under Sections 175,

178, 179, 180 and 228 of the Indian Penal Code.

35) In view of the conclusions arrived at hereinabove, there is hardly

any necessity to pronounce judgment on the point whether the Tribunal,

if at all it is considered to be vested with the power of contempt, can, in

the exercise of such jurisdiction, pass fresh directions, though the answer

to this question has to be in the „negative‟. The contempt court is

enjoined to ensure that the orders passed by it are adhered to in letter and

spirit and the violators thereof are adequately punished so as to deter

them from repeating their acts aimed at undermining the dignity of the

court and majesty of law. That being the scope of contempt jurisdiction,

it is trite to say that the contempt courts, like the executing courts, have

no jurisdiction to travel beyond the order of which the contempt is

complained of or issue fresh directions.

36) Viewed from any angle, the impugned order is not sustainable in

law. The same is quashed. It is, however, made clear that quashment of

the impugned order and the passing of this judgment shall not be an

impediment in the way of the Tribunal to exercise suo moto powers of

revision which are vested in it under Section 403 of the Act of 2000, if it

is of the opinion that the Srinagar Municipal Corporation has passed an

order which is in violation or derogation of the directions passed by it

earlier.

(Sanjeev Kumar) Judge Srinagar 25.05.2023 "BhatAltaf, PS"

                  Whether the order is speaking:      Yes
                  Whether the order is reportable:    Yes