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Judgment
Both these contempt petitions arise from same set of facts and raise identical questions of law, therefore, both of them are decided together.
Before the real controversy is taken up, it will be pertinent to mention certain facts hereinbelow:
Some riots took place on 13.1.1989 in Jammu city, which resulted in burning and causing of damages to certain shops. Some of the persons
whose property got destroyed during the said riots, filedvarious writ petitions in this court. One of such writ petitions was entitled: Mohan Lai and
others V/s Union of India and others (being OWP No. 263/1991). Second petition came to be filed under the title: Pawan Cloth House V/s Union
of India and others (being OWP No. 271/1991). Another writ petition came to be filed under the title: M/s Inder Puri Gneral Store and others V/s
Union of India and others. This writ petition was decided by a learned Single Judge of this Court, and is reported in AIR 1992 J&K page 11. This
was the first petition to have been decided out of all the petitions which were filed. Another writ petition filed under the title: M/s Geet General
Stores V/s Union of India and others (being WP No. 273/1991) was also decided by the learned Single Judge on the analogy of the judgement
delivered in Inder Puri's case. While deciding the writ petition titled: Mohan Lai and others V/s Union of India and others (being WP No.
263/1991) this court also decided a batch of four other writ petitions bearing Nos. WP No. 975, 977 and 978 of 1989. The writ petition titled:
M/s Pawan Cloth House Vs. Union of India and others was decided separately. All these writ petitions were disposed of by the learned Single
Judge on the strength of judgement delivered in M/s Inder Puri's case. An LPA was preferred by the State against the judgement delivered in M/s
Geet General Store and others, in which there were ten respondents. This appeal was taken up by the Division Bench and was decided vide
judgement dated 2881995. Appeals were also filed by the State in the cases of Pawan Cloth House and Mohan Lai and others. They were
dismissed by the Division Bench for non prosecution, and applications for their restoration are pending disposal.
The Division Bench reversed the basic judgement given by the learned Single Judge in Inder Puri's case. In Inder Puri's case, the learned Single
Judge had given a detailed judgement and mentioned the grounds taken in the writ petition reply submitted therein and considered the law on the
subject and issued the writ. This was not done either in Mohan Lai's case or in case of Pawan Cloth House. Only a reference was made to Inder
Puri's case and the cases were decided on the strength of judgement given in Inder Puri's case. Since the judgement of the learned Single Judge
given in Inder Puri's case has been reversed by the Division Bench of this Court, the question which arises is whether the judgement given in Pawan
Cloth House and Mohan Lai's case is still enforceable. These Contempt Petitions have been filed by the petitioners alleging therein that the
judgement were not complied with by the respondents, therefore, contempt proceedings be initiated against them, and orders be passed for
enforcing the judgements.
Objections have been filed by the respondents.
Heard learned counsel for the parties.
The only question that has to be decided is whether the judgement delivered in the instant cases by the learned Single Judge still remain
enforceable after the Division Bench passed a judgement in M/s Geet General Store's case in appeal. Mr. H.L. Bhagotra learned counsel for the
petitioners in one of the contempt petitions submits that the decisions given by the High Court are the only precedent for the subordinate Courts
and do not assume the colour of LAW as it assumed by the judgements of the Supreme Court. He also submits that there is a provision in this
regard in the Constitution of India (under Article 141). He further submits that the law declared by the Supreme Court is binding on all the Courts
within the territory of India, but there is no such identical power vested with the High Court. The judgments of the High Court are only the
interpretation of the provisions of law and facts of a particular controversy before the Court and become precedent for its subordinate Courts, but
do not become law. Therefore, even if the Division Bench has allowed the appeal and set aside the judgement of the learned Single Judge given in
M/s Geet General Store's case, it will have no bearing whatsoever on the cases of present petitioners, whose cases have been decided by the
learned Single Judge. Since, no appeals were preferred against the petitioners herein, therefore, the judgments of the learned Single Judge in their
cases have assumed finality, and therefore, there is no option left with the respondentstate but to enforce the same. He further submits that the state
cannot be heard to say that since the basic judgment has been set aside by the Division Bench, therefore, there is no judgment which needs to be
enforced. He also contended that his clients were not party to the LPA No. 109/1992, therefore, the rights which had accured to the present
petitioners could not be taken away, even without hearing them. In order to appreciate the arguments of learned counsel for the parties, I
reproduce one of the judgments passed by the learned Single Judge in OWP No. 263/1991:
Heard learned counsel for the parties and perused the pleadings. Petitioners are the victims, who suffered losses in the unfortunate communal riots
which took place in the holy city of Jammu on 13.1.1989. It has been prayed that appropriate directions be issued to the respondents to pay to the
petitioners the compensation to the extent of losses actually suffered by thm as detailed in these petitions. It is submitted that the property of the
petitioners was damaged in the riots as the respondents authorities failed to provide them protection as was the mandate of law adopted and
followed in this democratic socialist that the District Magistrate is alleged to have committed summary inquiry to assess the loss and damages which
are shown in the statements attached with the petitions. It has been agreed by the learned counsel for the parties that under similar circumstances,
this court has already passed appropriate directions in case M/s Inder Puri General Store and others V/s Union of India and another (AIR 1992
J&K 11). It was held in that case:
The constitutional set up in this country envisages that all communities have a right to life and practice their religion according to their conscience.
All citizens of the country have a right to carry on any profession or trade within the limits of law and the State is under an obligatiion to protect
their life and property ensuring them all the benefits of fundamental rights enshrined under the Part III of the Constitution. As and when life and
property, as discussed hereinabove, is taken away by any indivdual or organisation, a duty is cast upon the State representing the will of people to.
compensate the victim by granting adequate compensation. The monarchia! rule has to be distinguished from democratic set up and the State
cannot shrink in its responsibitlity to protect the life, liberty and property of the citizens. On, their failure to protect the life, liberty and property of
the citizens, State is under a constitutional obligations to compensate the victims adequately. The argument of the learned Advocate General that
the State was under no obligation to compensate the victims of communal riots, is without any basis and contradictory in terms in view of the
actions already taken in that behalf. If it was not the responsibility of the State to provide compensation, what was the necessity of passing orders
for providing exgratia grant and lumpsum amounts as compensation for the lossess suffered. The State represents the will of the lapses of the
Rulers, a right accrues to them for award of compensation. As and when the life and liberty of any person is taken away, a presumption arises of
the failure of the State machinery to protect the life and property of the individual involved.
As the facts of these cases and the points of law involved are identical as were considered in Inder Puri General Store and others (supra), these
petitions are also disposed of in terms of that judgement with the directions to the respondents to pay to the petitioners the compensation to the
extent of losses suffered by them as assessed by the Committee consituted by the Deputy Commissioner, Jammu within a period of three months.
Parties to bear their own costs.
Jammu August 20, 1992
From the perusal of the said order, it appears that the learned Single Judge has found that the controversy in question was squarely covered by
the judgement given in Inder Puri's case. The facts narrated in both the writ petitioners were same and the question of law involved were also
identical. Therefore, there is no doubt that the facts of the writ petitions which have given rise to these Contempt proceedgins were identical to the
writ petition titled: Geet General Store. The question of law involved in both the matters were also identical. The judgement passed in the cases
which have given rise to these contempt proceedings are infact based upon the judgement delivered in Geet General Store's case. We are working
under the scheme created by the Consitution itself; where at the State level the High Court is the Apex Court, and at the Central level the Supreme
Court of India is the Apex Court. It is true, that there is no provision in the Constitution of India or the State Constitution, which is similar to Article
141 of the Consitution of India, but that does not mean that once the High Court decides a matter, it does not lay down law for the State. The
interpretations given to the laws or usages by the High Court are a final word on the subject, in so far as such a State is concerned. High Court
draws strength from the fact that Article 226 of the Constitution of India give power to the High Court to issue writs, and Article 227 (in our case
Section 104 of the Constitution of the State) gives it the power of superintendence over the subordinate Courts and Tribunals. There is, therefore,
inherent power in the High Court to interpret law. Besides, the High Court is the Court of record and has the power to punish for contempt. The
Supreme Court in a case titled: Bishnu Ram Borah V/s Parag Saikia and others reported in AIR 1984 page 898, while dealing with the question as
to whether Board of Revenue could refuse implementation of order of the High Court, made the following observations:
It is regrettable that the Board of Revenue failed to realise that like any other subordinate tribunal, it was subject to the writ jurisdiction of the High
Court under Article 226 of the Constitution. Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out
throughout the territory of India under Article 142 of the Constitution, so should the judgments and orders of the High Court by all inferior courts
and Tribunal subject to their supervisory jurisidiction, within the State under Article 226 and 227 of the Constitution. We cannot butdepracate the
action of the Board of Revenue in refusing to carry out the directions of the High Court
In Bhopal Sugar Industries Limites Vs. Income Tax Officer, Bhopal, (1961) 1 SCR 4474; (AIR 1961 SC 182), the Income Tax Officer had
virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income Tax Appellate Tribunal had given to
him by its final order in exercise of its appellate powers in respect of an order of assessment made by him. The Court held that such refusal was in
effect a denial of justice and is furthermore destructive to one of the basic principles in the administration of justice based as it is in this country on
the hierarchy of courts. The facts of the present case are more or less similar and we would have allowed the matter to rest at that but unfortunately
the judgement of the High Court directing the issue of a writ of mandamus for the grant of a liquor licence to respondents Nos. 1 and 2 cannot be
sustained.
The Supreme Court has laid down the parameters regarding precedent of the High Court in East India Commercial Company Limited Vs The
Collector of Customs Calcutta reported in AIR 1962 SC 1093. Views of justice Subba Rao J. as His Lordships then was, were again referred to
with approval in Shri Baradkanata Mishra Versus Shri Bhimsen Dixit reported in AIR 1972 SC page 2466. The following observations of Justice
Subha Rao J. has clinched the matter:
The Division Bench of the High Court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under
S.5 of the Act. This raised the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate
proceedings in direction violation of the law so declared. Under Article 215, every High Court shall be a court of record and shall have all the
powers to punish for contempt of itself. Under Article 226, it has a plenary powers to issue orders or writs for the enforcement of the fundamental
rights and for any other purpose to any person or authroity including in appropriate cases any Government, within its territorial jurisdiction. Under
Article 227 it has jurisdiction over all Courts and tribunals throughout the terrotories in relation to which it exercises jurisdiction. It would be
anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start
proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do sc, for there is no specific provision, just like in
the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision
conferred on a superior tribunal that all the tribunal subject to its supervision should confrom to the law laid down by it. Such obedience would also
be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably
suffer.
Their Lordships of the Supreme Court in case Shri Baradkanta Mishra V/s Shri Bhimsen Dixit reported in AIR 1972 SC 2466, held as under:
1516. The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration
of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is
therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior Court's disobedience to the specific order of
a superior Court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the
court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law
laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has
repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is
calculated not only to undermines constitutional authority and respect of the High Court generally but is also likely to subvert the Rule of Law and
endager harassing uncertainty and confusion in the administration of law.
It follows from the judgement (supra) that whatever powers the Supreme Court has under Article 142, same powers have to be enjoyed by
the High Courts. If the judgments of the High Court are binding on subordinate Courts and Tribunals, so are they binding on each and every
person in the State. Besides, the High Court is working under syatem and under the constitutional provisions, the High Court has the power to
make the Rules. In Jammu and Kashmir High Court Rules, 1975, a hierarchy has been created within the High Court. Even, the Letters Patent
Rules of the High Court, permit such a hierarchy within the High Court. A judgement of a learned Single Judge passed in exercise of original
jurisdiction is appellable before a Division Bench. The Lord Chief Justice has the powers to constitute Full Benches also, and in terms of the
relevant Rules, a judgment/decision of the full Bench is binding on all Division and Single Benches, and a judgement of the Division Bench is binding
on all the single Benches on law and usages, having the force of law. The judgement delivered by the Division Bench in Geet General Store's case
is, as such, binding on this Court, as against the judgement passed by the learned Single Judge. Before issuing any rule in these contempt
proceedings, this Court has to first satisfy itself as to whether the judgement delivered by a Single Bench of this Court, of which disobedince is
alleged, are still enforceable, and can this court enforce them, I am afraid it cannot be done for two simple reasons; i) That this Court is bound by
the judgement of the Division Bench, which has impliedly set aside the judgment of the single Judges, the disobedince whereof is alleged; ii) The
High Court Rules made me bound to follow the judgment of the division Bench.
There are other reasons for adopting the said course, which I am entertaining in these proceedings. The reason being that we are placed in the
system of tiers, where the Judiciary works under different tiers in the State. It starts at the Munsiffs level and ends at the High Court level, and at
the Apex level we have the Supreme Court. If there is no judicial discipline in implementing and getting the judgments implemented, there shall be
judicial anarchy, which will not be in the interest of anybody.
Let me give an example, that there are two shopkeepers adjacent to each other, who suffered losses in one and the same incident. Both of
them filed writ petitions and succeeded. In one of the cases, appeal was filed, which was accepted and judgment of the single Judge was set aside.
In another case, no appeal was preferred. One of the shopkeepers who suffered losses as a result of same incident, gets compensation another
shopkeeper adjacent to his shop who also suffered losses in the same incident, will not get any compensation. This will erode confidence of the
people in the Courts. There must be some standards for identical situations. Therefore, I am of the view that the judgement delivered by the
learned Single Judge in Geet General Store must be taken to have been set aside; even if not taken to have ben set aside impliedly, but even then,
they are rendered unenforeceable. The position of Division Bench in the scheme of our constitution and the laws, is not a kin to Supreme Court,
but at the same time, by fiction of Rules and Letters Patent, we have tried to create a Court within a Court. Therefore, a full Bench of this Court is
at the highest level; whereas Division Bench is at the next higher level and the Single Bench is at the lowest level.
In view of the discussion made hereinabove, I find that the judgments delivered by the learned Single Judge, disobedince where of has been
complained, have become unenforceable in view of the judgment delivered by the Division Bench in Geet General Store. I think, the appropriate
remedy for the petitioner was to challenge the judgement of the Division Bench before an appropriate Court; as they decidedly were the persons
who were aggrieved of the judgement of the Division Bench (supra).
For the aforesaid reasons, I find no merit in these contempt petitions, which are dismissed accordingly, and the rule issued against the
respondents is discharged.