Ab. Gani Bhat vs State and Others

Mohammad Yaqoob Mir, J.—Vide order impugned dated 3.9.2009, CMP No. 2674/2001, filed for initiating contempt proceeding against

Respondent No. 4 therein, has been dismissed being misconceived and not maintainable. Aggrieved thereof, instant appeal has been filed, non

maintainability of which warrants its dismissal for the reasons to follow:

In terms of the judgment rendered in SWP No. 2578/98, the Respondents had to disburse the subsistence allowance to the Appellant. Grievance

of the Appellant is that the full amount of arrears of subsistence allowance have not been paid to him, therefore, Respondents have violated the

order, so are liable to be proceeded for having committed contempt of the Court. Earlier the Appellant seem to have filed a motion for initiating

contempt proceedings which has been disposed of with the direction to the Respondents to release the subsistence allowance after taking an

undertaking from the Appellant. Another contempt petition No. 26/2003 has been rejected with liberty to the Appellant to launch fresh

proceedings before the competent forum if advised.

The appeal against the order dated 3.9.2009, by virtue of which CMP for initiating contempt proceedings, has been dismissed, on the face of it

is not maintainable. In terms of Section 19 of the Contempt of Courts Act, appeal can lie only when in exercise of contempt jurisdiction any

punishment is passed. Similar view has been taken by the Division Bench of this Court in LPA No. 153/2007 decided on 16.3.2007, that too in

the case of the Appellant titled Abdul Gani Bhat v. State and Ors.

The position vis-a-vis maintainability of the appeal has also been dealt with by the Hon'ble Apex court in the judgment reported in AIR 1974 3C

2255, wherein it has been held that ""where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses

to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to

punish for contempt. Such a decision would not, therefore, fall within the opening words of Section 19 Sub-section (1) and no appeal would lie

against it as of right under that provision.

Applying the ratio as has been laid down, the present appeal is not maintainable, therefore, is dismissed as such. However, Appellant shall be at

liberty to have recourse to other permissible remedial measures, if he so chooses.