Rajesh Kumar Kaushal vs SRMB Srijan Private Limited & Anr.

OM NARAYAN RAI, J.:-

The instant appeal has been filed by an alleged contemnor. It takes exception to an order dated October 04, 2024 passed in CPAN No. 1154 of 2023 (filed in connection with WPA No. 9990 of 2020), whereby the Hon’ble Single Judge has issued a rule calling upon the alleged contemnor (i.e., the appellant herein) to show cause as to why penal action as prayed for in the contempt application filed by the respondents herein, shall not be taken against the appellant.

Shorn of meticulous details, the facts relevant for adjudication of the present appeal, as may be gathered from the material on record, are as follows:-

a. The respondents- writ petitioners had filed a writ petition being WPA No. 9990 of 2020 challenging Clause 27.2 of the Central Public Works Department (CPWD)^{11.Hereafter “CPWD”} Works Manual, 2014^{22.Hereafter “the 2014 Manual”}, which was retained in the CPWD Works Manual, 2019^{33.Hereafter “the 2019 Manual”} as amended by the Office Memoranda dated December 27, 2019 and January 08, 2020, as well as connected Office Memoranda.

b. The said writ petition was disposed of by the Hon’ble Single Judge by an order dated April 11, 2023 thereby quashing the modified Clause 27.2 of the 2014 Manual, as reincorporated in the 2019 Manual, and the consequential Memoranda issued by the CPWD. By the said order, the CPWD was directed to implement the Notification dated May 12, 2016 issued by the Ministry of Steel, Government of India, the order dated August 09, 2016 and the reminders dated December 14, 2016 and February 07, 2017 issued by the said Ministry. The said order was carried in appeal being MAT 310 of 2024 before the Hon’ble Division Bench.

c. The Hon’ble Division Bench disposed of the appeal by an order dated April 15, 2024 by observing that there was no ground to interfere with the order passed by the Hon’ble Single Judge except with regard to the direction issued in paragraph 53 of the order impugned in the said appeal whereby the modified Clause 27.2 of the 2014 Manual was quashed. The Hon’ble Division Bench instead of quashing the said Clause directed the CPWD to appropriately amend their Work Manual to be in consonance with the notification issued by the Ministry of Steel, Government of India as done by the notifications referred to in the appellate order.

d. Alleging contempt of the order dated April 11, 2023, the respondents filed an application being CPAN No. 1154 of 2023. During hearing of the said application, the appellant (who was the alleged contemnor in the application for contempt), filed an affidavit of compliance stating inter alia that the application for contempt had become infructuous as there was no wilful disobedience and violation of the order dated April 11, 2023 passed by the Hon’ble Single Judge and also since the said order dated April 11, 2023 had been modified by the Hon’ble Division Bench on April 15, 2024.

e. The Hon’ble Single Judge took note of the affidavit of compliance on October 04, 2024 and ultimately issued rule directing the alleged contemnor “to show cause as to why he should not be committed to prison or otherwise penalized or dealt with” for having wilfully and deliberately violated the order dated April 11, 2023 passed by the Hon’ble Single Judge in WPA No. 9990 of 2020.

f. Feeling aggrieved thereby the appellant has approached this Court by filing the present appeal.

g. At the time when the appeal was initially moved, this Court took note of the question as regards maintainability of the appeal keeping in view the fact that the order impugned was one whereby only rule of contempt had been issued and penalty/punishment had not been imposed. At the same time, this Court also took note of another seminal question as to whether the application for contempt was itself maintainable before the Hon’ble Single Judge when the original order (contempt whereof has been alleged) stood modified by the Hon’ble Division Bench. The Hon’ble Division Bench accordingly entertained the appeal by observing as follows:-

h. Post entertainment of the appeal as aforesaid, the Presiding Member of the Hon’ble Division Bench which entertained the appeal demitted His Office and the matter was thereafter assigned to this Bench by the Hon’ble the Chief Justice.

A brief summary of the submissions made by Mr. Chakraborty, learned Additional Solicitor General of India, appearing for the appellant, is as follows:-

a. The order impugned is squarely appealable, inasmuch as the same satisfies all attributes of a judgment within the meaning of Clause 15 of the Letters Patent. The impugned order has in fact decided everything and the issuance of rule is a mere formality leaving only the question of the quantum of the punishment to be decided.

b. In answer to the point of maintainability of the appeal, Shah Babulal Khimji vs. Jayaben D. Kania & Another^{44.(1981) 4 SCC 8} was cited and it was asserted that the impugned order qualifies for a judgment within the meaning of Clause 15 of the Letters Patent.

c. The order impugned has been passed on the faulty premise that contempt of the original order passed in WPA No. 9990 of 2020 had been committed while the original order lost its existence upon being modified by the Hon’ble Division Bench. Sailesh Kumar vs. Smitha R., IAS & Another^{55.2023 SCC OnLine Cal 1152} was pressed into service to demonstrate that in case of reversal, modification and setting aside the order of the Hon’ble Single Bench in an appeal under Clause 15 of the Letters Patent by the Hon’ble Division Bench, the contempt application would lie before the Hon’ble Judges constituting the Division Bench which passed the order.

d. The order impugned is a nullity since the Hon’ble Single Judge lacked jurisdiction to entertain an application for contempt of an order that no longer remained an order of the Hon’ble Single Bench upon being modified by the Hon’ble Division Bench in appeal.

e. Ram Kishan vs. Tarun Bajaj & Others^{66.(2014) 16 SCC 204} was relied on to support the contention that if two interpretations are possible and if the action is not contumacious, a contempt proceeding would not be maintainable and that element of willingness is an indispensable requirement to bring home the charge of contempt.

f. Prithawi Nath Ram vs. State of Jharkhand & Others^{77.(2004) 7 SCC 261} was cited to assert that while dealing with an application for contempt, the Court is only concerned with the question whether the earlier decision that has attained finality has been complied with or not and it would not be permissible for the Court to examine the correctness of the earlier decision which had not been assailed and to take a different view than what was taken in the earlier decision.

A brief summary of the submissions made by Mr. Sen, learned Senior Advocate, appearing for the respondents, is as follows:-

a. The appeal is clearly not maintainable since no punishment has been imposed upon the appellant by the impugned order. Midnapore Peoples’ Cooperative Bank Limited & Others vs. Chunilal Nanda & Others^{88.(2006) 5 SCC 399} was cited to demonstrate that neither an order declining to initiate proceedings for contempt, nor an order dropping proceedings for contempt nor an order acquitting or exonerating the contemnor is appealable under Section 19 of the Contempt of Courts Act, 1971^{99.Hereafter “the 1971 Act”}.

b. The order impugned is one whereby only rule has been issued and nothing has been decided as yet. The impugned order does not satisfy the requirements for it to be termed as a judgment within the meaning of Clause 15 of the Letters Patent. Shah Babulal Khimji (supra) was invoked to show that an order to be treated as a judgment within the meaning of Clause 15 of the Letters Patent, the impugned order must decide matters of moment or affect vital and valuable rights of the parties. In the instant case, only rule has been issued and the appellant would have all the opportunity to answer the same in accordance with law.

c. The views expressed by the Hon’ble Single Judge are only prima facie and the same only mark the initiation of a proceeding for contempt. Purshotam Dass Goel vs. Hon’ble Mr. Justice B.S. Dhillon & Others^{1010.(1978) 2 SCC 370} was relied on in support of the proposition that mere initiation of proceeding for contempt by issuance of notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question.

d. Dipti Ganguly & Others vs. State of West Bengal & Others^{1111.1998 SCC OnLine Cal 442} was deployed to demonstrate that initiation of a contempt proceeding in exercise of contempt jurisdiction is not an order which is appealable either under Section 19 of the 1971 Act or Clause 15 of the Letters Patent of this Court.

e. Doctrine of merger is not a constitutional doctrine but is a common law concept. Application of such doctrine does not lead to inherent lack of jurisdiction of a Court. At best it can lead to irregular exercise of jurisdiction and at the highest may be termed as a waivable error. Sailesh Kumar (supra) was relied on in support of such contention and also to assert that doctrine of merger is not to be applied rigidly or universally.

f. The appellant has participated in the contempt proceedings before the Hon’ble Single Judge and has accepted the jurisdiction of the Hon’ble Single Judge thereby waiving the irregularity of the proceeding, if any.

g. The order impugned is not a nullity since it does not suffer from the incurable defect of inherent lack of jurisdiction of the Court that passed it. Balvant N. Viswamitra & Others vs. Yadav Sadashiv Mule (Dead) Through LRs. & Others^{1212.(2004) 8 SCC 706} was employed to buttress the point that a mere wrong exercise of jurisdiction does not result in a nullity and the lack of jurisdiction in the Court passing the order must be patent on its face. The Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. Relying on the said judgment, it was highlighted that there is a distinction between a decree passed by Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. In the latter case, the decree cannot be said to be inexecutable.

h. Hasham Abbas Sayyad vs. Usman Abbas Sayyad & Others^{1313.(2007) 2 SCC 355} was employed to demonstrate that jurisdiction of Court can be classified into three categories-i) pecuniary, ii) territorial and iii) subject matter and that jurisdiction as to subject matter stands on a different footing. Lack of jurisdiction as to subject matter would render the order nullity, which is not the case here.

Both the parties distinguished and countered the authorities cited against them with the appellant reaffirming its position in the rejoinder arguments.

Since a question as regards maintainability of the appeal itself has been raised, that needs to be answered first.

The ground on which the maintainability of the present appeal has been challenged is that the order impugned is not one imposing punishment on the alleged contemnor and going by the law laid down by the Hon’ble Supreme Court in the case of Midnapore Peoples’ Cooperative Bank Limited (supra) only an order that penalises the contemnor is challengeable in a Section 19 - appeal.

Indeed, the order impugned does not impose punishment and would not be appealable under Section 19 of the 1971 Act, but in the facts of the present case can it be said that the said order was passed in exercise of contempt jurisdiction? The answer to this question would depend on the answer to the primary question i.e., which Court would be entitled to exercise the jurisdiction for contempt of an order?

Rule 15 of the Calcutta High Court Contempt of Courts Rules, 1975 framed by this Court in exercise of the powers conferred by Section 23 of the Contempt of Courts Act, 1971 and by Article 215 of the Constitution of India and all other powers in that behalf provides the answer to the latter and the primary question. The same reads thus:-

[Emphasis supplied]

Thus, for the Hon’ble Single Judge to exercise jurisdiction of contempt, the order whereof contempt was alleged must be one that was passed by the Hon’ble Single Judge. In the case at hand, the Hon’ble Single Judge disposed of the writ petition of the respondents on April 11, 2023 by passing the following directions:-

The appeal preferred against the said order dated April 11, 2023, was disposed of by the Hon’ble Division Bench ordering as follows:-

It is thus clear that the Hon’ble Division Bench did not interfere with the order impugned in appeal except with regard to the direction issued in paragraph 53 of the impugned order whereby the modified Clause 27.2 of the CPWD Works Manual has been quashed. That is as good as saying that the original decision of the Hon’ble Single Bench of quashing of the modified Clause 27.2 was modified by the Hon’ble Division Bench with a direction to amend the said Clause as indicated in the appellate order.

In the wake of the above, can it be said that the original order passed by the Hon’ble Single Bench still subsisted? The answer is an emphatic - NO. It is well settled that once an order is reversed or modified by the appellate forum, it is the appellate order that subsists since the original order merges in the appellate order. The Hon’ble Full Bench of this Court has taken note of a long line of authorities on this trite legal proposition spanning from the case of Commissioner of Income Tax vs. Amritlal Bhogilal & Co.^{1414.1958 SCC OnLine SC 59} to Khoday Distilleries Limited & Others vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited Kollegal^{1515.(2019) 4 SCC 376}.

The judgment of the Hon’ble Supreme Court in the case of Kunhayammed & Others vs. State of Kerala & Another^{1616.(2000) 6 SCC 359} (which has been relied on by the Hon’ble Special Bench in Sailesh Kumar (supra)) has discussed the issue elaborately and summed up the legal position in paragraph 44 in the following words:-

This concept has been applied by the Hon’ble Special Bench while answering the reference made to it in the case of Sailesh Kumar (supra). It would be significant to note that the reference to the Hon’ble Special Bench was necessitated in the wake of conflicting views on maintainability of an application for contempt before the Hon’ble Single Bench when the relevant order passed by the Hon’ble Single Bench stood affirmed in appeal by the Hon’ble Division Bench. The Hon’ble Special Bench answered the reference made to it with the following observations in paragraph 22 of the judgment:-

The underlined portion of the judgment leaves no scope for any doubt or ambiguity in the case at hand. As already noticed hereinabove, the order dated April 11, 2023 was modified by the Hon’ble Division Bench in appeal. What matters is not the extent of modification but its presence. Once there is a modification, howsoever little it be, the original order should be treated as having merged with the appellate order since there cannot be two orders in operation at the same time. In cases of affirmation, there is no addition or subtraction or variation of the original order so there is only one order that subsists - and that is the original order, but it is not so in cases of reversal or modification or variation of the original order.

At this stage the respondents’ arguments as regards the inapplicability of the doctrine of merger to the facts of this case as the same is not rooted in the Constitution of India but has arisen from the common law concept needs to be dealt with. The proposition is trite in the abstract but its applicability to the facts of the case cannot be doubted merely because it owes its genesis to the common law concept. In fact, the debate is no longer open for us after the judgment of the Hon’ble Special Bench. The Hon’ble Special Bench has clearly noted the source of the doctrine in paragraphs 4, 5, 8 and 13 of the judgment and has thereafter answered the reference in paragraph 22 which has already been quoted hereinabove.

In any case the caution sounded by the Hon’ble Special Bench against the rigid and universal application of the doctrine of merger must be seen in the context of the case that was being dealt with. As already noted above, the Hon’ble Special Bench was answering a reference where there was a cleavage of opinion on maintainability of an application for contempt before the Hon’ble Single Bench when the relevant order passed by the Hon’ble Single Bench stood affirmed in appeal by the Hon’ble Division Bench. It was in such context that the Hon’ble Special Bench held that the doctrine cannot be universally applied such that the original order merges with an appellate order of affirmation as well.

Indeed, for merger to take place the nature of jurisdiction exercised by the higher Court must necessarily be seen. In such context Kunhayammed (supra) becomes the guiding light. Paragraph 12 and paragraph 44(iii) explain the legal position with absolute clarity. While paragraph 44 has already been quoted hereinabove, paragraph 12 deserves notice:-

In the instant case, the Division Bench was exercising appellate jurisdiction over the Hon’ble Single Bench and as such the doctrine of merger squarely applies without being rigid, even in the least, in its application.

This takes us to the issue of jurisdiction. What is the subject matter over which the Court exercises jurisdiction in case an application for contempt is filed before it? It is nothing else but the order, contempt whereof is alleged. The following observations of the Hon’ble Supreme Court in the case of Jhareswar Prasad Paul & Another vs. Tarak Nath Ganguly & Others^{1717.(2002) 5 SCC 352} are apposite to the present context:-

The underlined observations of the Hon’ble Supreme Court clearly mandate that while exercising contempt jurisdiction, “the Court should be confined to the question whether there has been any deliberate disobedience of the order of the Court”. So the order alleged to have been violated is the subject matter of the contempt proceeding and it defines the limits of the enquiry to be undertaken by the Court dealing with the proceeding.

Viewed in the light of legal position governing the field, it becomes evident that the Hon’ble Single Judge did not have jurisdiction to entertain the application for contempt of the order that stood modified by the Hon’ble Division Bench. It is indeed a case of inherent lack of jurisdiction and not one of irregular exercise of jurisdiction.

It is well settled that any order passed by a Court lacking jurisdiction would be a nullity. Law in such regard was settled by the Hon’ble Supreme Court as far back as in the year 1954 in the case of Kiran Singh & Others vs. Chaman Paswan & Others^{1818.(1954) 1 SCC 710} in the following words:-

Once it is found that the order passed by the Hon’ble Single Bench is without jurisdiction, an appeal under Clause 15 of the Letters Patent would be clearly maintainable. The Hon’ble Supreme Court has held so in the case of V.M. Manohar Prasad vs. N. Ratnam Raju & Another^{1919.(2004) 13 SCC 610} in the following words:-

The reason behind the normal appeal being maintainable is quite clear. If the Court does not have jurisdiction to deal with the contempt proceeding, the proceeding cannot be said to be governed by the 1971 Act. To wit, Section 19 of the 1971 Act presupposes a valid exercise of contempt jurisdiction; where the Court lacked jurisdiction to entertain the contempt proceeding, its order cannot be regarded as one passed in the exercise of jurisdiction to punish for contempt and hence the rigours of Section 19 of the 1971 Act will not apply. It will be an appeal under Clause 15 of the Letters Patent.

Since the order impugned is clearly without jurisdiction, the same deserves to be interfered with.

Coming to the other decisions cited by the parties, Shah Babulal Khimji (supra) has held that while routine orders would not qualify to be called judgments within the meaning of Clause 15 of Letters Patent, orders which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned would qualify to be called judgments and would therefore be appealable under Clause 15 of the Letters Patent. The Hon’ble Supreme Court held that the word “judgment” has undoubtedly a concept of finality in a broader and not a narrower sense.

In the present case the Hon’ble Single Judge has assumed jurisdiction that it did not have and has found in the order impugned specifically that the appellant is guilty of contempt. Paragraph 44 of the impugned order deserves notice in such regard:-

Thus, while exercising a non-existent jurisdiction, the Hon’ble Single Judge has passed an order that almost finally decides the issue and renders a specific finding. It therefore positively answers the test for being treated as a judgment as prescribed by the Hon’ble Supreme Court in the case of Shah Babulal Khimji (supra). Accordingly, the order is appealable under Clause 15 of the Letters Patent.

Ram Kishan (supra) instructs that if two interpretations are possible and if the action is not contumacious, a contempt proceeding would not be maintainable. It holds that element of willingness is an indispensable requirement to bring home the charge of contempt. Having regard to the view that we have taken and our finding as regards lack of jurisdiction of the Hon’ble Single Bench, the said judgment does not help the appellant any further.

Prithawi Nath Ram (supra) reaffirms that the Court dealing with a contempt proceeding is only concerned with the question whether the earlier decision that has attained finality has been complied with or not. The said judgment clearly supports the appellant. It mandates that compliance of the judgment that has attained finality is to be ascertained. In the present case the final judgment is the one passed by the Hon’ble Division Bench and not the Hon’ble Single Bench and as such the Hon’ble Single Judge lacked jurisdiction to entertain the contempt proceeding.

Purshotam Dass Goel (supra), Midnapore Peoples’ Cooperative Bank Limited (supra) and Dipti Ganguly (supra) cited by the respondents are all authorities for the proposition that neither an order declining to initiate proceedings for contempt, nor an order dropping proceedings for contempt nor an order acquitting or exonerating the contemnor is appealable under Section 19 of the 1971 Act. We have already held that the instant appeal is not under Section 19 of the 1971 Act but under Clause 15 of Letters Patent since the Hon’ble Single Judge lacked jurisdiction to entertain the application for contempt.

Balvant N. Viswamitra (supra) and Hasham Abbas Sayyad (supra) reiterate that a decree which is a nullity cannot be executed. The difference between a decree which is a nullity and a decree which is illegal as enunciated in the case of Balvant N. Viswamitra (supra) does not help the respondents inasmuch as in the instant case it has been found that the order impugned is indeed a nullity.

For all the reasons aforesaid, the order impugned herein and all consequential steps taken on the basis thereof stand set aside. MAT 2003 of 2024 stands allowed. CAN 1 of 2024 stands disposed of accordingly. No costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on urgent basis after completion of necessary formalities.

I agree.