Madhya Pradesh High Court
Anurag Nagar Griha Nirman ... vs Indore Development Authority on 14 June, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
WRIT APPEAL No. 1518 of 2019
BETWEEN:-
ANURAG NAGAR GRIHA NIRMAN SAHAKARI SANSTHA MARYADIT
THROUGH ITS PRESIDENT SHRI SHARAD CHANDRA MEHTA FLAT
NO. 304, VISHAL EMINENCE 60, AHILYA MATA COLONY, INDORE
-452003 (MADHYA PRADESH)
.....APPELLANT
(SHRI VIJAY KUMAR ASUDANI, ADVOCATE)
AND
INDORE DEVELOPMENT AUTHORITY THROUGH ITS CHIEF
1. EXECUTIVE OFFICER 7, RACE COURSE ROAD, INDORE (MADHYA
PRADESH)
SHRI VIVEK SHOTRIYA, CHEIF EXECUTIVE OFFICER INDORE
2. DEVELOPMENT AUTHORITY 7, RACE COURSE ROAD, INDORE
(MADHYA PRADESH)
SHRI S.C. JAIN, ASSISTANT ENGINEER INDORE DEVELOPMENT
3.
AUTHORITY 7, RACE COURSE ROAD, INDORE (MADHYA PRADESH)
SHRI ASHOK SAMEER ,SUB ENGINEER INDORE DEVELOPMENT
4.
AUTHORITY 7, RACE COURSE ROAD, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(MS. MINI RAVINDRAN, ADVOCATE FOR RESPONDENT NO.3)
Reserved on : 16/02/2023
Posted on : 14/06/2023
2
__________________________________________________________
This appeal coming on for admission this day, JUSTICE
SUSHRUT ARVIND DHARMADHIKARI passed the following:
ORDER
Heard finally with the consent of both the parties.
2. This writ appeal under Section 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been
filed being aggrieved by the order dated 20/07/2019 passed by learned
Single Judge in Contempt Case No.883/2019 whereby contempt
proceedings have been dropped/dismissed.
3. At the out-set learned counsel for the respondent No.3 - Ms. Mini
Ravindran raised a preliminary objection with regard to maintainability
of the present writ appeal, since the order impugned is passed by the
learned Single Judge in exercising its contempt jurisdiction.
4. Learned counsel for the appellant submitted that on perusal of the
order impugned, it is seen that the same has tenets of an order under
Article 226 of Constitution of India and as such observations/findings
issued by the learned Single Judge cannot be issued in its contempt
jurisdiction, the same have to be presumed to be the directions under
Article 226 of Constitution of India and, therefore, the appeal is
maintainable.
5. Heard learned counsel for the parties on the question of
maintainability.
''2. Appeal to the Division Bench of the High
Court from a judgment or or of one Judge of the High
Court made in exercise of original jurisdiction. --
{1} An appeal shall lie from a Judgment or order
passed by one Judge of the High Court in exercise of
original jurisdiction under Article 226 of the Constitution
of India, to a Division Bench Comprising of two Judges of
the same High Court: Provided that no such appeal shall
lie against an interlocutory order or against an order
passed in exercise of supervisory jurisdiction under Article
227 of the Constitution of India.
{2} An appeal under Sub-section {1} shall be filed within
45 days from the date of order passed by a Single Judge :
Provided that any appeal may be admitted after the
prescribed period of 45 days, if the petitioner satisfies the
Division Bench that he had sufficient cause for not
preferring the appeal within such period.
Explanation - The fact that the petitioner was
misled by any order, practice or judgment of the High
Court in ascertaining or computing the prescribed period
may be sufficient cause within the meaning of this sub-
section.
{3} An appeal under Sub-section {1} shall be filed,
heard and decided in accordance with the procedure as
may be prescribed by the High Court."
8. A fair reading and understanding of Section 2
would clarify that according to the intention of the
legislature, an appeal shall lie from a judgment or an order
passed by one Judge of the High Court in exercise of
original jurisdiction under Article 226 of the Constitution
of India. The proviso appended to Sub-section {1} of
Section 2 clearly provides that no such appeal shall lie
against an interlocutory order or against an order passed in
exercise of supervisory jurisdiction under Article 227 of
the Constitution of India. Such an appeal is required to be
filed within 45 days and if the appeal is not filed within 45
days then the High Court under particular circumstances
shall have powers to condone the delay in filing the
appeal. Section 4 of the Madhya Pradesh Uchcha
Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam,
2005 repealed the Madhya Pradesh Uchcha Nyayalaya
{Letters Patent Appeals Samapti} Adhiniyam, 1981.
9. Section 2 and its sweep had been a subject of
controversy in number of cases. A Full Bench of this
Court has held that if an interlocutory order has the tenets
of being final in nature and it affects the rights of the
parties permanently or the parties are left at an
irretrievable position then an order can be challenged in an
appeal. However, none of the judgments of this High
Court say that when a learned Single Judge has exercised
his jurisdiction under the provisions of Contempt of
Courts Act, an appeal shall be maintainable under Section
2 of the Madhya Pradesh Uchcha Nyayalaya {Khand
Nyaypeeth Ko Appeal} Adhiniyam, 2005.
10. Section 2 of the Madhya Pradesh Uchcha
Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam,
2005 clearly provides that an appeal shall lie from a
judgment or an order passed by one Judge of the High
Court in exercise of original jurisdiction under Article 226
of the Constitution of India. Section 2 of the Adhiniyam,
2005 does nowhere provide that if an order passed under
some proceedings other than writ proceedings can be
treated to be an order under Article 226 of the Constitution
of India then also an appeal would be maintainable.
11. The key words in Section 2 are "in exercise of
original jurisdiction under Article 226 of the Constitution
of India". If a learned Single Judge issues some direction
in a civil matter or in a criminal matter, which even
otherwise he could have issued under Article 226 of the
Constitution of India then such a direction cannot be
challenged before a Division Bench. The basic question is
whether the Judge is exercising the jurisdiction under
Article 226 of the Constitution of India or any other
jurisdiction.
12. Undisputedly, the learned Single Judge was not
exercising his jurisdiction under Article 226 of the
Constitution of India but was exercising his contempt
jurisdiction. Assuming for a minute that the order passed
by the learned Single Judge is beyond his jurisdiction and
the same can be set aside by an Appellate Court then the
appeal must be filed before a proper forum because an
intra-court appeal, which is a statutory appeal, would not
be maintainable against such directions or illegal exercise
of the jurisdiction.
21. In the present matter, undisputedly, the order was
passed by the learned Single Judge but it was not passed
in exercise of the jurisdiction under Article 226 of the
Constitution of India. A perusal of the order would make it
clear that the learned Single Judge was clear in his mind
that the earlier observations made by the learned Judge
while disposing of the writ petition were to be understood
in a particular form. While disposing of the writ petition,
if the learned Single Judge made certain observations,
issued certain directions and such directions were not
wholeheartedly followed or complied with and ultimately
a contempt proceedings came before the Court then even
in such jurisdiction, the learned Single Judge could
explain that what was really meant by the order. It would
altogether be a different thing that the alleged contemnors
may come before the competent Court and say that the
interpretation made by the learned Single Judge is wrong
or bad but the forum to challenge such observations or
directions would be different not a Division Bench in an
intra-court appeal under the Adhiniyam."
6. In view of the facts and circumstances of the case, without entering
into the merits of the case, we hold that this appeal is not maintainable.
Accordingly, writ appeal stands dismissed.
No order as to costs.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Aiyer*
Digitally signed by
JAGADISHAN AIYER
Date: 2023.06.14 18:18:04
+05'30'
