Suresh K v. Dr. A Kaushikan I.A.S., Land Revenue Commissioner

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 27[TH] DAY OF NOVEMBER 2023/6TH AGRAHAYANA, 1945 ``` ``` CONT. APPEAL(C)NO.9OF 2023 ``` ``` ARISING FROM THE JUDGMENT DATED 21.08.2023 IN CON. CASE (C)NO.1630 OF 2023 OF THE HIGH COURT OF KERALA ``` ## **`APPELLANT:`** ``` SURESH K, AGED 47 YEARS, S/O KUTTANPILLAI, RESIDING AT PADINJARETHALIYIL, VAZHAPPALLI WEST P.O., CHANGANASSERY, VAZHAPPALLY WEST, KOTTAYAM, PIN – 686 103 BY ADVS. M.H.ASIF ALI RAJANA JOSE S.MUHAMMED HANEEFF ASHIK ALI M.H. ``` ## **`RESPONDENT:`** ``` DR. A KAUSHIKAN I.A.S [NAME AND FATHER'S NAME NOT KNOWN TO APPELLANT] LAND REVENUE COMMISSIONER, LAND REVENUE COMMISSIONERATE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695 033 ``` ## **`BY ADV`** ``` SMT RASHMI K.M – SR.GOVERNMENT PLEADER ``` ``` THIS CONTEMPT APPEAL (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ..2.. Cont. Appeal(C) No.9 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant, who is the petitioner in Cont. Case (C)No.1630 of 2023, arising out of the judgment dated 21.08.2023 in W.P.(C)No.3711 of 2023, has filed this Contempt Appeal, invoking provisions under Section 19(1)(a) of the Contempt of Courts Act, 1971, read with Section 5 of the Kerala High Court Act, 1958, challenging Annexure A1 judgment dated 21.08.2023 of the learned Single Judge in Cont.Case(C)No.1630 of 2023, which reads thus; “It is submitted that the directions in the judgment dated 22.05.2023 in W.P.(C)No.3711 of 2023 are complied with and a proceedings of the Land Revenue Commissioner is produced with a memo. If the petitioner is aggrieved by the same, the petitioner is free to challenge the same, in accordance with law. In the light of the compliance of the directions, this contempt case is closed.” 2. The grievance of the appellant, which was raised in the contempt case is that the direction contained in the judgment dated 22.05.2023 in W.P.(C)No.3711 of 2023 was not complied with and the document placed on record along with the memo dated 11.08.2023 of the Special Government Pleader was only a communication dated 09.08.2023 of the Land Revenue ..3.. Cont. Appeal(C) No.9 of 2023 ## Commissioner, addressed to the District Collector, Kottayam. 3. The direction contained in the judgment dated 22.05.2023 in W.P.(C)No.3711 of 2023 reads thus: “6. If that be the case, I am of the considered opinion that the 3[rd] respondent has to reconsider the matter to redress the grievance of the petitioner. I make it clear that the 3[rd] respondent can do the needful in accordance with law to see that there is no danger to the life of the petitioner and the other local residents. To facilitate the 3[rd] respondent to pass fresh orders, Ext.P6 can be set aside. There can be a direction to the 3[rd] respondent to reconsider the matter in the light of Ext.P7. The 3[rd] respondent also can think about utilising any other funds, if it is available, for redressing the grievance. Therefore, this writ petition is disposed of in the following manner: 1. Ext.P6 is set aside. 2. The 3[rd] respondent is directed to reconsider the matter, after affording an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within three weeks from the date of receipt of a stamped certified copy of this judgment. 3. The 3[rd] respondent is free to pass appropriate orders, but I make it clear that the grievance of the petitioner should be redressed.” 4. Heard the learned counsel for the petitioner and the learned Senior Government Pleader for the respondent. 5. Section 19 of the Contempt of Courts Act, 1971, deals with appeals. As per sub-section (1) of Section 19, an appeal shall lie as of right from any order or decision of the High Court ..4.. Cont. Appeal(C) No.9 of 2023 in the exercise of its jurisdiction to punish for contempt - (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court As per the proviso to sub-section (1), where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. 6. **In Anil Kumar T.R. and others v. Premkumar V.R [2021 (1) KLT SN 32 (C.No.35) : 2020 KHC 384]** a Division Bench of this Court held that an appeal under Section 19 of the Contempt of Courts Act is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, i.e., an order imposing punishment for contempt. 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 Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should ..5.. Cont. Appeal(C) No.9 of 2023 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. 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 the 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. 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 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 exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the rule issued in contempt ..6.. Cont. Appeal(C) No.9 of 2023 proceedings, it would be an order or decision in the exercise of its jurisdiction to punish for contempt, against which an appeal would be maintainable. The decision of the High Court to reject the unconditional apology and proceed further was an order or decision to proceed to punish the contemnor. Hence, such a decision or order is appealable. 7. The decision of the Division Bench in **Anil Kumar T.R. [2021 (1) KLT SN 32 (C.No.35) : 2020 KHC 384]** is one rendered after referring to the law laid down by the Apex Court in **Midanpore Peoples’ Co-operative Bank Ltd. v. Chunilal Nanda [(2006) 5 SCC 399]** , a decision relied on by the learned Senior Counsel for the respondent and also the learned counsel for the appellants. 8. **In V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610]** the Apex Court, in the context of Section 19 of the Contempt of Courts Act, held that if a direction given by a court is without jurisdiction, against such orders an appeal would lie to the court normally exercising the appellate jurisdiction. 9. By Annexure A1 judgment dated 21.08.2023, the learned Single Judge closed the contempt case in view of the ..7.. Cont. Appeal(C) No.9 of 2023 memo filed by the learned Special Government Pleader, producing therewith a copy of a letter dated 09.08.2023 of the Land Revenue Commissioner, addressed to the District Collector, Kottayam. According to the appellant, it is only a letter of the Land Revenue Commissioner, addressed to the District Collector, Kottayam, which is a verbatim reproduction of the communication dated 09.02.2023 of the Member Secretary, Kerala State Disaster Management Authority, a copy of which is marked as Ext.P7 in W.P.(C)No.3711 of 2023. Further, despite the specific direction contained in the judgment dated 22.05.2023 in W.P.(C)No.3711 of 2023, no opportunity for a personal hearing was afforded to the appellant, by the Land Revenue Commissioner. 10. In view of the law laid down in the decisions referred to supra, Annexure A1 judgment of the learned Single Judge in Cont. Case(C)No.1630 of 2023 is not appealable either under Section 19(1)(a) of the Contempt of Courts Act or under Section 5 of the Kerala High Court Act. 11. The learned counsel for the appellant would submit that the appellant proposes to file an application before the learned Single Judge to re-open Cont. Case(C)No.1630 of 2023. ..8.. Cont. Appeal(C) No.9 of 2023 In such circumstances, after recording the aforesaid submission made by the learned counsel for the appellant, this Cont. Appeal is dismissed as not maintainable. **Sd/-** **Sd/G. GIRISH, JUDGE** ded ..9.. ## Cont. Appeal(C) No.9 of 2023 ## **`PETITIONER ANNEXURES`** ``` Annexure A1CERTIFIED COPY OF JUDGMENT DATED 21/08/2023 IN CON.CASE(C) NO. 1630 OF 2023 IN W.P(C)NO. 3711/2023 ```