REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO.   7317     OF 2009 (Arising out of SLP (Civil) No. 1722 of 2007)

Parents Association of Students     …. Appellant  

Versus

M.A. Khan and another    …. Respondents

J U D G M E N T

S.B. SINHA, J.  

1. Leave granted.

2. The question which arises  for  consideration  in  this  appeal  is  as to

whether  a  Special  Appeal  from an  interim order  passed  by the  court  in

exercise of its contempt jurisdiction is maintainable.   

The said question arises in the following circumstances :-

3. Appellant-herein is an Association of Parents of the Wards who have

taken  admission  in  different  professional  colleges  including  medical

colleges.   Respondent  No.1  is  a  Secretary  of  Era’s  Lucknow  Medical

College  and  Hospital  while  respondent  No.2  is  the  Secretary,  Medical

Education, Government of U.P.  

4. A writ petition was filed by the appellant against the State of U.P. and

others wherein a learned  Single Judge of the High Court having regard to

the decision of a 11 Judge Bench of this Court in T.M.A. Pai Foundation  v.

State  of  Karnataka,   [  (2002)  8  SCC 481  ]  while  disposing  of  the  writ

petition on 31st August, 2006, directed as under:-  

“Learned  counsel  appearing  on  behalf  of  the respondent  No.2  Sri  Sanjay Bhasin,  informs that the authorities are bound to act in the light of the judgment  of  the  Apex  Court  and  the  various Government  Orders  i.e.  Government  order  dated 15.7.2003 and 13.7.2005 issued in the light of the judgment of this Court at Allahabad.

In the light of the above no further directions are required  to  be  issued  by  this  Court.   In  the circumstances,  the  authorities  must  ensure  and stick on the fair statement made on behalf of the respondents.

With these observations the writ petition is finally disposed of.”

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5. Indisputably  clarification  as  regards  interpretation  of  various

directions/observations  made  in  T.M.A.  Pai  Foundation (supra)  fell  for

consideration  before  a  Constitution  Bench  of  this  Court  in     Islamic   

Academy of Education  v.  State of Karnataka, [ (2003) 6 SCC 697 ].  The

mater did not stop there.  Another Seven Judge Bench was constituted to

interpret the directions issued in Islamic Academy of Education  (supra) vis-

à-vis T.M.A. Pai Foundation (supra).   

In  P.A.  Inamdar v.  State  of  Maharashtra,  [  (2005)  6  SCC  537  ]

wherein direction to constitute various Committees inter alia to determine

the quantum of fees payable by the students for taking admission as also

tuition and other fees to continue their studies in professional colleges, was

reiterated.   

6. Respondent  No.1  was  not  a  party  to  the  said  writ  petition.   It,

however, approached the Committee for determination of the quantum of

fees which could be collected from the students.  The Committee refused to

go into the said question opining that for the year in question i.e. 2003-04 it

had no jurisdiction to decide the same.   

7. Relying on or on the basis of the said opinion of the Committee the

first respondent approached the Government of the State.  A Government

order was issued on 7th September, 2006 permitting the College to collect

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Rs.2,96,000.00 as fees for admission.  The College indisputably collected

the said amount from the students.   

8. It is at this stage that a contempt petition was filed by the appellant

against the contemnors-respondents contending that by issuance of the said

G.O. dated 7th September, 2006 the State had committed contempt of Court.

1st respondent was impleaded as a respondent-contemnor on the plea that he

was also bound by the earlier decision of the Court.  However, he was not a

party to the writ petition.   

9. A learned Single  Judge  of  the  High Court  by his  order  dated  13th

September,  2006  while  opining  that  a  prima  facie  case  for  initiating

contempt proceedings under the Contempt of Court Act has been made out,

passed the following interim order :-

“ After considering the argument on behalf of the both sides this Court is of the view that issuing of  the  Government  Order  dated  7.9.2006  prima facie  indicates  the  commission  of  contempt  of Court.  

Let  notice  be  issued  to  the  opposite  party no.1 and 2.

They shall file counter affidavit within three weeks.   Rejoinder affidavit  maybe filed within a week thereafter.  

List immediately thereafter.

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In  the  meanwhile,  the  operation  of  the disputed  Government  order  dated  7.9.2006  shall remain stayed and any consequential action taken by way of  notices  to  students  shall  also  remain stayed.

The Court  is  passing this order in view of the observation of the Apex Court in  Mohammad Idris and another  vs.  Rustam Jehangir Bapuji and others, AIR 1984 SC 1826 where it was observed that the clear breach of undertaking given by the petitioner, the Court could also issue appropriate direction to close breach.”     

10. An intra court appeal by way of Special Appeal was filed thereagainst

by  the  respondent  No.1.   Appellant  herein  raised  a  question  of

maintainability of the said appeal.  A Division Bench of the Court (Coram :

Hon’ble Jagdish Bhalla, J. and Hon’ble D.V. Sharma, J.) on 17th October,

2006 held the said appeal to be maintainable but did not assign any reason

in support thereof immediately, but stated :-.   

“ In this Special; Appeal, the Stamp Reporter has reported that it  has been presented beyond 4 days of the statutory period.  Admittedly, on 13th September,  2006  the  appellant  was  not  being represented  before  the  learned  Single  Judge. However, notices were issued on 13.9.2006, which was served upon the appellant on 21st September, 2006.  Therefore, it cannot be said that appeal has been filed beyond 4 days of the period prescribed by the Limitation Act.

By  the  order  dated  13.9.2006  passed  in Criminal Misc. Case No.2053 of 2006 (contempt

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jurisdiction) the Hon’ble Single Judge was pleased to  issue  notices  calling  upon  the  respondents including the appellant to file counter affidavit and stayed  the  operation  of  the  Government  order dated  7.9.2006  together  with  the  consequential actions taken by way of notices to students.

A preliminary objection has been raised by Sri  S.N.  Shukla,  Advocate  appearing  for  the opposite party no.1 with respect to maintainability of the instant Special Appeal.  According to him, there  is  no  provision  of  filing  Special  Appeal arising out of the contempt petition.  He has next contended that  the  respondent has received copy of the Special Appeal at about 3 PM whereas the affidavit of service shows the time as 12:15 PM.    

Having  heard  the  learned  counsel  for  the parties,  we would have  dictated the  order in  the open Court on account of paucity of time we are dictating  only  the  operative  portion  of  the  order and the reasons would follow :-         

Admit.

Issue Notice.

Ten days time is allowed for filing objection to  the  affidavit  in  support  of  the  appeal.   Till further  orders  of  the  Court  the  order  dated 13.9.2006 so far as it relate to the appellant shall remain stayed.  It would be for the parties Counsel to  inform  this  order  to  the  Hon’ble  Contempt Judge.”

Reasons in support of the said order were assigned later on but the

date thereof was stated to be 17th October, 2006 itself.  A certified copy of

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the said order was made available to the appellant on or about 15th January,

2007.  

11. Appellant is, thus, before us.

12. Mr. S.N. Shukla, learned counsel appearing on behalf of the appellant

would submit that as in view of the decision of this Court in  Midnapore

Peoples' Coop. Bank Ltd. v.  Chunilal Nanda, [(2006) 5 SCC 399] an appeal

in  terms  of  Section  19  of  the  Contempt  of  Courts  Act,  1970  would  be

maintainable, the special appeal filed by the respondent should have been

dismissed in limine.  It was urged that as the special appeal itself was not

maintainable, any interlocutory order passed therein should be held to be a

nullity.  It was pointed out that in any event as merely a show cause notice

had been issued by the learned Single Judge by an order dated 31st August,

2006,  no  appeal  lay thereagainst.   As the decision  of  the  learned Single

Judge dated 31st August, 2006 was binding on the State of Uttar Pradesh and

as prima facie the State has committed an act of contempt in issuing the

impugned GO. dated 7th September, 2006, the first respondent herein who

was aware of the said order could be proceeded against for commission of

contempt. Reliance in this behalf has been placed on Babulal  v.  Municipal

Corpn., Ratlam, [ (2005) 13 SCC 101], where it was held :-.

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“2. The High Court appears to have proceeded on the basis that it was settled law that a person not a party  to  the  original  proceedings  cannot  be proceeded  against  in  contempt.  The  issue  is  a debatable  one,  particularly  having  regard  to  the law on the issue particularly in  S.N. Banerjee v. Kuchwar Lime and Stone Co. Ltd.   The order of the  High  Court  is  set  aside  and  the  matter  is remanded back for reconsideration of the issue.”

13. Mr.  A.  Mariarputham,  learned  counsel  appearing  on  behalf  of

respondent No.1, on the other hand would contend :-

(i) A  valuable  right  of  the  appellant  to  receive  fees  from  the

students having been taken away by reason of the order passed

by  the  learned  Single  Judge  the  Special  Appeal  was

maintainable.   

(ii) As  it  is  accepted  that  an  appeal  under  Section  19  of  the

Contempt  of  Courts  Act  would  have  otherwise  been

maintainable before a Division Bench, it did not matter whether

the Division Bench exercised its jurisdiction under Section 19

of the Contempt of Courts Act or under the Letters Patent of

the High Court.   

(iii) In view of the subsequent event, namely – determination of the

same amount of fees by the Committee which has also received

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the approval of the Government having been questioned before

the  High  Court  in  a  writ  petition  and the  matter  is  pending

judgment,  this  Court  should  not  interfere  with the impugned

order.  

14. The controversy as regards exercise of jurisdiction of the appellate

court under Section 19 of the Contempt of the Court Act is a vexed one.

Whereas  one  line  of  decisions  beginning  from  Baradakanta  Mishra v.

Justice Gatikrushna Misra,  [ (1975) 3 SCC 535 ] till  Midnapore Peoples'

Coop. Bank Ltd. (supra) is that an appeal would be maintainable only when

an  order  of  punishment  has  been  made,  in  R.N.  Dey v.  Bhagyabati

Pramanik,  [ (2000) 4 SCC 400 ] it has been held to be maintainable if the

jurisdiction is excised by any court under the Contempt Courts Act.  

15. The question, we may notice, has been referred to a 3 Judge Bench in

Dharam Singh v. Guljari Lal & Ors. [Civil Appeal No.18852 of 2005).  

We,  therefore,  need  not  decide  the  larger  question,  namely,

maintainability of the appeal under Section 19 of the Contempt of Courts

Act, 1970 vis-à-vis maintainability of the Special Appeal under the Letters

Patent  of  the  High  Court,  since  the  matter  has  been  referred  to  a  larger

Bench.   

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16. We, however wish to deal with the basic issue.  Appellant filed the

writ  petition,  inter  alia,  for  a  direction  upon  the  State  to  regulate

professional education so far as it, inter alia, relates to fixation of fee.  First

Respondent  admittedly runs  a  professional  institution.   It,  subject  to  any

law, would be bound by the decision of this Court in  T.M.A. pai (supra).

The contemnor or the institution which he represents, however, was not a

party.   If  he  was  not  a  party,  subject  to  statutory  interdict,  only  in

exceptional  cases,  he  may  be  proceeded  against  under  the  Contempt  of

Courts Act, 1970.  It is one thing to say that a direction having been issued

upon the State Government; issuance of a Government Order in exercise of

its jurisdiction under Article 162 of the Constitution of India would attract

the wrath of the Contempt of Courts Act; but it would be another thing to

say that a party who merely derives benefit from such Government Order

would also be liable to be proceeded against under the Contempt of Courts

Act despite the fact that he was not a party to the judgment.  

17. The learned Single Judge did not address itself to this aspect of the

matter at all.  Ordinarily, a person if not a party to the lis and no direction

having been issued against him, a contempt petition against him would not

lie.  Whether an exceptional case has been made out against him is yet to be

determined.  

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18. In S.N. Banerjee  v.  Kuchwar Lime and Stone Co. Ltd.,  [AIR 1938

PC 295], it has been observed :-

“The question whether a contempt committed not by any person inhibited by injunction for breach of that injunction but by a person said to have aided and abetted a person so inhibited in breaking the injunction  is  of  such  a  criminal  nature  as  to prevent  an  appeal  has  given  rise  to  much controversy, controversy which in the present case this Board does not think it necessary to resolve. The respondents themselves when petitioning the Court  asked  the  Court  to  issue  notice  upon  the opposite  parties  to  show cause  why they should not be committed for contempt for disobedience of the injunction.  Strictly speaking this was a wrong remedy to ask against Ghose and Banerjee.   The injunction was not binding on them and they had never  disobeyed  it.   The  petition  should  have asked  that  they  be  committed  for  aiding  and abetting the Secretary of State in his disobedience. Indeed on the authority of 1848) – 11 Beav 180 and  181,  the  High  Court  might  well  have dismissed the petition against those two appellants and left  the  petitioners  to  apply  again  in  proper form.  Though the High Court did not do so but treated the petition as if application had been made to commit those appellants for contempt in aiding and  abetting  the  Secretary  of  State,  yet  their Lordships do not think, the respondents have any cause  of  complaint  if  the  Court  in  admitting  the appeal  treated  the  case  (as  the  respondents themselves  had  done)  as  being  a  petition  for breach of the injunction and gave a certificate as in a civil matter.”

19. It is one thing to say that a person claiming title or any other right is

bound  by  a  direction  issued  to  another  through  or  under  whom  he  is

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claiming a right but it may not be correct to opine that a person who has

nothing to do with the functions of the State would also be liable therefor.

In any event, the issue admittedly is a debatable one.  It is required to be

gone into.  Without any application of mind in this behalf on the part of the

High Court not only a notice has been issued but also an interim order has

been passed which vitally affects the respondents No.1.   

A person aggrieved by an order must have a remedy.  Technicalities

of law should not be allowed to come on his way to move the higher courts.

20. If  Mr.  Mishra  is  correct  in  his  contention  that  an  appeal  was

maintainable  under  Section  19  of  the  Contempt  of  Courts  Act,  such  an

appeal would also lie before a Division Bench of the High Court.  It may,

subject  to  just  exceptions,  not  matter  much  as  to  whether  an  appeal  is

entertained under the said provision or under the Letters Patent of the High

Court.  The Division Bench of the High Court, therefore, could entertain an

appeal subject, of course, to allocation subject matters by the Chief Justice

of High Court.

21. There cannot, however, be any doubt or dispute that this Court has

the jurisdiction to interfere with both the orders under Article 136 of the

Constitution of India.   

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22. Once the counsel for the parties are heard at great length, this Court

may in appropriate cases and in particular a case of this nature and keeping

in  view  the  subsequent  events  may  either  refuse  to  interfere  with  the

impugned judgment or quash both the orders of the Division Bench and the

Single Bench on the legal principle that if setting aside of an illegal order

gives  rise  to  another  illegal  order  both  orders  may  be  quashed.   [See

Chandra Singh v. State of Rajasthan & Anr. [(2003) 6 SCC 545]; and Dove

Investments Pvt. Ltd. & Ors. v. Gujarat Industrial Investments Corporation

Ltd. & Anr. [(2006) 2 SCC 619].

23. The  question  as  to  whether  a  person,  although  not  a  party  in  the

original writ proceedings, could be proceeded against, is a debatable one.

Such a question, therefore, was required to be determined at the threshold.

If prima facie two views are possible and unless it is firmly held that the

respondent No.1 not only was bound by the directions issued by the High

Court  but  he  had  also  defied  it  willfully  and  deliberately,  he  cannot  be

punished for commission of contempt.    

If,  prima  facie,  appellant  cannot  be  punished  for  commission  of

contempt  of  the  High Court,  an interim order also should have not  been

passed.   

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We draw inspiration in this regard from a decision of this Court in

The State of Bihar v.  Rani Sonabati Kumari [AIR 1961 SC 221]which has

since been followed in a large number of cases.   

24. Recently  in  Sushila  Raje  Holkar v.  Anil  Kak  (Retd.) [2008  (7)

SCALE 484], it was held :

“19.  It  may be true that  this Court  upon hearing the parties, by the order dated 1.5.2007 granted the respondent 15 days' time to deposit all arrears of rent at the rate of Rs.50,000/- per month including the rent for the month of April 2007. We are not concerned  with  the  implementation  of  the  said order as violation thereof is not the subject matter of the contempt proceedings pending before us.  

The  order  of  this  Court  properly  construed, therefore,  would  mean  that  the  admitted  lease would  cover  only  16,000  square  feet  of  land. Different  phraseologies  like  "entire"  and "admitted"  have  been  used  by  this  Court. Construction of the said order, therefore, must be resorted to upon reading the same in its entirety. It is  a  well  settled  principle  of  law  that  if  two interpretations are possible  of the order which is ambiguous,  a contempt proceeding would not  be maintainable.  In  The  State  of  Bihar v.  Rani Sonabati  Kumari  [AIR  1961  SC  221],  it  was stated:

‘The second contention urged was that even if on a proper construction of the order, read in  the  light  of  the  relevant  pleadings,  the State  Government  was  directed  to  abstain from publishing a notification under Section 3(1)  of  the  Act,  still,  if  the  order  was ambiguous  and  equivocal  and  reasonably capable of two interpretations, a party who

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acted  on  the  basis  of  one  of  such interpretations  could  not  be  held  to  have willfully  disobeyed  the  order.  Stated  in these  terms,  the  contention  appears unexceptionable.  For  its  being  accepted  in any particular case, however, two conditions have to be satisfied: (1) that the order was ambiguous  and  was  reasonably  capable  of more  than  one  interpretation,  (2)  that  the party being proceeded against in fact did not intend to disobey the order,  but  conducted himself in accordance with his interpretation of the order.’

This aspect of the matter has been considered by this Court in Purnendu Mukhopadhyay and Ors. v. V.K.  Kapoor  and  Anr. [(2007)  12  SCALE 549] {See also  Maruti Udyog Limited v.  Mahinder C. Mehta and Ors. [(2007) 11 SCALE 750]}”

25. Strong  reliance  has  been  placed  by  Mr.  Mishra  on  Midnapore

Peoples’ Coop. Bank Ltd. & Ors. (supra), wherein it  has, inter alia,  been

held :

“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  a 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).

XXX XXX XXX

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15. Interim  orders/interlocutory  orders  passed during the pendency of a case, fall  under one or the other of the following categories :

(i) to (iii) …

(iv) Routine orders which are passed to facilitate the progress of the case till  its culmination in the final judgment.

(v) Orders  which  may  cause  some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.”

26. We may, however, notice that in an earlier decision of this Court in

R.N. Dey & Ors (suspra) it was opined :

“In  our  view  the  aforesaid  contention  for  the learned counsel for the respondents requires to be rejected  on  the  ground  that  after  receipt  of  the notice, officers concerned tendered unconditional apology  and  after  accepting  the  same,  the  High Court rejected the prayer for discharge of the rule issued for contempt action.  When the court either suo motu or on a motion or a reference, decides to take action and initiate proceedings for contempt, it assumes jurisdiction to punish for contempt. 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 proceedings, it would be  an  order  or  decision  in  exercise  of  its jurisdiction to punish for contempt.  Against such order, appeal would be maintainable.”

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27. As indicated hereinbefore, the matter is pending before a Three Judge

Bench.   

In a case of this nature, this Court is also not precluded from taking

into consideration the subsequent events.  Having regard to the subsequent

events, and in particular as, the decision as to the Committee’s power to fix

fees is justiciable or not is pending consideration, it  would not be fair to

allow the  interim order  passed  by the  learned  Single  Judge  to  continue;

assuming that the Division Bench had no jurisdiction to entertain the appeal

and consequently pass the interim order staying the operation of the order of

the learned Single Judge.  While, therefore, quashing both the orders, we

would request the learned Single Judge to consider the merit of contempt

matter only after disposal of the Writ Petition No.2117 (M/S) of 2006.

27. Appeal is disposed of accordingly.  No costs.

…….…………………J.

            ( S.B. SINHA )

…….…………………J.

          ( CYRIAC JOSEPH )

New Delhi

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December 16, 2008

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