Mohd. Sadiq and Others vs Mohd. Sharief and Others

Muzaffar Hussain Attar, J.—The operative part of the judgment of the Court about which it was alleged that same has not been implemented

in its entirety thus giving cause for filing of Contempt petition on alleged intentional violation thereof, is noticed as under:

In view of the discussions as detailed above, keeping in view the reports and enquiry held, the Respondent is entitled to take over the possession

of land under Khasra Nos. 1252 (27 Kanals 5 marlas) 2777 min (6 Kanals) 2777 min (6 Kanals) 2777 min (2 kanals 14 marlas) 2778 (6 kanals

12 marlas) 2786 (9 kanals 11 marlas) 2788 (kanals 6 marlas situated in village Khanetar Tehsil Haveli as has been held by the Member, Special

Tribunal J&K Jammu by his order dated 25.2.1987 as the land is question is not exceeding the ceiling unit of 96 kanals of agriculture land as per

provisions of Agrarian Reforms Act, 1976. Accordingly the Assistant Custodian (Tehsildar) Haveli is directed to put the Respondent in possession

of the land. The remand case is disposed of accordingly. The file be consigned to records after due completion.

Contempt (LPA) No. 08/2008 in LPAOW No. 184/2001 was filed on the ground that though contempt Petitioner-Respondent No. 1 has been

put in the possession of the land in terms of Court judgment but structures/dwelling house constructed thereon have not been handed over to him.

In the contempt petition, learned Single Judge has given the direction, which is noticed as under:

I, accordingly, direct the Deputy Custodian, Poonch to hand over land alongwith structures raised therein to the Petitioner within a period of three

weeks. In case request is made by the Deputy Custodian, Poonch for assistance, Sr. Superintendent of Police, Poonch and Deputy Commissioner,

Poonch shall provide assistance to him forthwith. Compliance report be submitted before this Court on or before 02.11.2010, and for this

purpose, index be maintained by the Registry.

The Appellants are aggrieved of the order of the learned Single Judge to the extent it directs Deputy Custodian, Poonch to hand over structures

to Respondent No. 1 within period of three weeks and also of the direction given to Senior Superintendent of Police, Poonch and Deputy

Commissioner, Poonch to provide assistance to the Deputy Custodian, Poonch, on the ground that learned Single Judge while exercising powers

conferred on him under the Jammu and Kashmir Contempt of Courts Act, 1997 (for short Act of 1997) read with Section 94 of Constitution of

Jammu and Kashmir, has modified the judgment which is subject matter of the contempt petition.

We have heard learned Counsel for the parties. Considered the matter.

Learned Counsel for the Appellants, while referring to the judgment of the Court, about which it was alleged that it has not been implemented in

its entirety, submitted that Assistant Custodian (Tehsildar Haveli) was directed to put Respondent No. 1 in possession of land. Learned Counsel

further submitted that no direction was given for handing over the possession of the structures/dwelling house to the Respondent No. 1. Learned

Counsel also submitted that in contempt proceedings, learned Single Judge, in law, could not issue a direction which has the effect of modifying the

original judgment and cannot issue additional directions. To support his contention, learned Counsel for the Appellants referred to and relied upon

judgment of the Hon'ble Supreme Court titled ""Appellant: Prithawi Nath Ram v. Respondents: State of Jharkhand and Ors."" reported in 2004 AIR

SCW 4742. Learned Counsel invited the attention of the Court to paragraph 8 of the said judgment, which is reproduced as under:

If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor

feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness

of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render

the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which

is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It

cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction

while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the

matter, the order of the High Court is set aside and the matter is remitted for fresh consideration. It shall deal with the application in its proper

perspective in accordance with law afresh. We make it clear that we have not expressed any opinion regarding acceptability or otherwise of the

application for initiation of contempt proceedings.

Learned Counsel for Respondents submitted that in terms of Section 2(9) of Jammu and Kashmir Agrarian Reforms Act, 1976 (for Short Act

of 1976) land has been defined to mean land which was occupied, or was let, for agricultural purpose...and includes: structures on such land used

for purposes connected with agriculture. Learned Counsel thus submitted that learned Single Judge has not committed any error, in law, by

directing handing over of the structures to the Respondent.

The provisions of Act of 1997 and the Section 94 of the Constitution of Jammu and Kashmir confer a unique and distinctive power on the Court

of law to punish a person/authority, who is proved to have intentionally and/or willfully disobeyed the order/judgment of the Court. The power to

punish a person/authority for its contumacious conduct, inheres in the court of law for the reason that Court order/judgment after having attained

finality is to be implemented, as otherwise, the people will loose faith in the efficacy of the institution of the judiciary. The power to decide the

dispute and render the judgment will become meaningless unless there is further power to seek its implementation and to punish the person for

willfully and deliberately violating order/judgment of the Court. The contempt jurisdiction is to be exercised to maintain and preserve the integrity

and respect of institution of judiciary. The power conferred on the Court by the Act of 1997 and Section 94 of the Constitution of Jammu and

Kashmir read with Article 215 of the Constitution of India is to be exercised in rear and extreme situations. The Court, in exercise of contempt

jurisdiction, has power to punish the party for intentionally violating its order/judgment, but has no power to give additional directions or to modify

original order/judgment. Such a course, if permitted to be adopted, will be violative of the basic concept of the settled judicial norms, inasmuch as,

in appropriate legal proceedings, issues are raised and decided by Court of law. In contempt proceedings, issues can not be permitted to be

raised, which would result in modification of original order/judgment of the Court either by deleting any part thereof or by giving additional

direction. The Hon'ble Supreme Court in judgment (supra) has specifically ruled that the Court, while exercising contempt jurisdiction, has neither

power to modify the original order/judgment nor to give additional directions.

Reverting back to the facts of this case, in the main proceedings, direction was issued to Assistant Custodian (Tehsildar Haveli) to put the

Respondent No. 1 in possession of the land. No direction was given to Deputy Custodian, Poonch. In the main judgment, no direction was given

for handing over the possession of the structures. The submission of the learned Counsel for Respondent is that the land defined in the Act of 1976

includes the structures as well, as such, direction issued by the learned Single Judge cannot be said to be illegal, in the facts and circumstances of

this case. What is the nature of the structure and for what purpose the said structure were raised are the issues which were to be gone into in the

original proceedings. Section 2(9) of the Act of 1976 also says that the land shall not include the site of a building or a structure within municipal

area town area, notified area or village abadi or any land appurtenant to such building or structure. The land for the purpose of contempt

proceedings, thus, could not be said to include structure as well. Had it been the intention of the Court in the main proceedings to order for handing

over the possession of structure as well, a specific direction would have been given in this behalf. As no direction has been given, the learned Single

Judge in exercise of contempt jurisdiction could not issue further direction.

For the above stated reasons this LPA succeeds and is allowed. The order impugned dated 01.10.2010 is accordingly set aside. However no

order as to costs.