IN APO 190 OF 2019 - CALCT HC- Observations pertaining to merits by Single Judge was beyond scope of jurisdiction under Contempt of Courts Act read with Article 215; the only issue was whether the alleged contemnors were guilty of willful violation of the order passed by the Court: Calcutta High Court
Justice Arijit Banerjee and Justice Apurba Sinha Ray [21-06-2023]

Read more: Khalil Ahmed v Ansar Ahmed

Simran Singh

New Delhi, June 23, 2023:  The Calcutta High Court has allowed an appeal against the order passed by a Single Judge wherein certain findings were recorded on issues which were not the subject matter of the proceedings. A Division Bench held that if such findings adversely affected or were likely to affect the future rights of the party in whose favour the order was passed, that party would be entitled to assail the order, although in its favour, for deletion of the remarks which were adverse to that party’s interest.

The matter pertained to a dispute regarding the heritage property that belonged to Bengali poet Michel Madhusudhan Dutta.

The Division Bench comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray, while navigating the question whether or not the order impugned or any portion thereof warranted interference by the appellate Court, held that naturally the entire order of the Single Judge was not required to be interfered with since it had dismissed the contempt applications which were instituted against the present appellants. However, the Division Bench stated that 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 Kolkata Municipal Corporation (KMC) was justified in assigning heritage tag to the property in question -- needed 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.” Observed the Bench

In view thereof, it was held that the observations/findings of the 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 stood expunged.

The Bench was quick to clarify that “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.”

In the matter at hand, the premise located in Karl Marx Sarani, Calcutta was declared to be a heritage building by KMC. The petitioners who had acquired the said property in 1990 after coming to know of the declaration of the property as a heritage building approached the Court wherein it was observed that the West Bengal Heritage Commission (Commission) was to review and reassess the view taken by the said Expert Committee and the Heritage Conservation Committee (HCC) endorsed by KMC, following the guidelines given in the judgment and after serving notice to the appellants, providing them with the opportunity of being heard within a period of 3 months. Further, it was directed that KMC would not interfere with the decision of the Commission unless supported by a detailed reason.

The appellants alleging violation of the aforesaid order, filed two contempt petitions wherein a compliance report was filed by KMC in one of the said contempt proceedings which contained the decision of the Commission which was communicated to KMC by a letter dated 05-09-2017 stating that it did not find any documentary evidence to uphold the decision of KMC. However, the HCC did not agree with the decision of the Commission and was of the opinion that the Grade of the building as Grade IIB was to be retained. Subsequent to which Mayor-in-Council duly approved the resolution of HCC dated 11.08.2018 under Sections 425B and 425D of the KMC Act, 1980.

The judgment in contempt petitions observed that KMC proceeded to consider the decision of the Commission only after the contempt proceedings were initiated and observed that “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.”

The contempt judgment emphasised that part of the order of the Court wherein it was stated that KMC would not ordinarily interfere with the decision of the Commission unless supported by a detailed order and opined that the the contemnors were bound to follow this order strictly and there was 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.” Held the contempt judgement. Thus it was held that there was non-compliance of the order of the Court to the extent that there was refusal on the part of KMC to accept the decision of the Commission without the support of intelligible reasons. It was held that the disobedience was wilful on part of KMC and the alleged contemnors were in contempt of the said order of this Court and was accordingly liable to be punished.

However, the Single Judge in the impugned order held that there was non-compliance on part of KMC but such non-compliance was not wilful. Accordingly the two contempt petitions were disposed of without issuance of Rule. In the process, observation in regards to the merits of the decision of the HCC of KMC were made to retain the heritage status of the aforesaid property.

The grievance of the appellants was that the Single Judge in the impugned order had for all practical purposes held that the HCC ought not to have differed from the opinion of Commission and that the said opinion was not reliable or credible. The Single Judge had in effect decided that the property in question could not be declared as a heritage property although no such declaration had been made by the Judge considering the contempt application. It was argued that “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.”

Issue for consideration before the Bench was:

1. Whether the Single Judge completely fell in error in going into the merits of the matter and had assumed the role of expertise while dealing with the contempt matter.
2. Whether the Judge, while dealing with the contempt matter was only concerned as to whether the alleged violation of the order of the Court was deliberate and wilful or not and once it came to the conclusion that the violation was not deliberate or wilful, the contempt proceeding came 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.

Court Analysis

The Bench while dealing with the preliminary objection raised by the respondents as regards maintainability of the appeal, stated that it was not in dispute that these appeals had not been filed under Section 19 of the Contempt of Courts Act, 1971 (Contempt of Court Act). The order assailed in the appeals was 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.”

The Bench was of the view that this appeal would be maintainable under clause 15 of the Letters Patent and the impugned judgment in the appeal qualified as a judgment within the meaning of Clause 15 of the Letters Patent.

The Bench after pursuing decisions of Supreme Court judgements stated that “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.”

The Bench observed that the Single judge while dealing with the issue whether or not there was wilful violation of the judgment and order dated 18-07-2016, whereby two writ petitions were disposed of, so as to amount to contempt of Court, had held that technically there was violation of the order but the same was not intentional. In the course of so holding, the Single Judge dilated on the merits of the decision of KMC to declare the property in question as a Heritage property. The Single 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 Single Judge came to a finding that the declaration of the concerned property as heritage was erroneous. “Learned Judge therefore finally decided a collateral issue which is 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.”

Therefore, the Bench opined that the order assailed in this appeal to the extent it holds that the concerned property could not be assigned heritage status, was a judgment within the meaning of Clause 15 of the Letters Patent and was open to challenge in an intra-court appeal.

Further the Bench was of the view that it was true that if an order was wholly in favour of a party to a lis, that party could not maintain an appeal against such order. However, if in the course of passing such order, a Single Judge of the High Court recorded certain findings on issues which were not subject matter of the proceedings, and if such findings adversely affected or were likely to affect in future rights of the party in whose favour the order was passed, that party would be entitled to assail the order, although in its favour, for deletion of the remarks which were adverse to that party’s interest. Otherwise, in any future proceedings, that party may suffer prejudice and would have to face the argument that not having challenged the adverse observations in the earlier order, that party was bound by the same.

“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. 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.” Observed the Bench.