Excelsior Correspondent
SRINAGAR, Feb 1: The High Court today upheld the writ Court order whereby Director Tourism for willful disobedience of Court judgment was directed to show cause as to why he shall not be punished for contempt of court.
Observing that contempt is a matter between the court and the alleged contemnor and any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court, Division Bench of Justice Sanjeev Kumar and Justice M K Hanjura dismissed the appeal of Government.
The writ court order was challenged by the Government before the Division Bench with the plea that the order could not have been passed by the contempt court, more so when the judgment sought to be complied with had been fully complied with and a consideration order in terms thereof had been passed.
Senior Counsel B A Bashir appearing for the person, who filed contempt against the Director and other officers, raised a preliminary objection with regard to the maintainability of the appeal filed by the Government.
“Under the Jammu & Kashmir Contempt of Courts Act, 1997, appeal in terms of Section 19 is provided only against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt”, Advocate Bashir argued.
The Division Bench recorded that the ‘intermediary and interlocutory’ orders passed during the course of the proceedings which do not determine any right or issue between the parties cannot be said to be the judgment amenable to the appellate jurisdiction of the Division Bench under Clause 12 of the Letters Patent.
“It is not the case of the appellants that by virtue of the order impugned the contempt court has issued directions which go beyond the scope of the judgment alleged to be violated by the appellants and in the light of aforesaid analysis, we find that the appeal is not maintainable under Section 19(1) of the Act or under Clause 12 of the Letters Patent. Consequently, the appeal is dismissed along with connected MP”, DB concluded.
Facing contempt proceedings, the Director Tourism was directed to show cause as to why he shall not be punished for contempt of court order, instead remaining present before the court he files application seeking exemption of personal appearance while as he was supposed to answer as to why he shouldn’t punished for disobeying the court orders.
Taking serious note on casual approach of higher ups in Tourism department with regard to Court directions, contempt court also issued bailable warrants against the erring Director and SSP Srinagar was asked to execute the warrants.
Advocate Bashir seeking dismissal of appeal filed by Government urged that given the nature of the order passed by the contempt court which is challenged in the appeal, it cannot be said that the contempt court while framing the Rule against the Director Tourism also has made observations which travelled beyond the scope of the order alleged to be disobeyed.
Court while underscoring the Section 94 of the Constitution of Jammu & Kashmir, which is pari materia to Article 215 of the Constitution of India, provides that the High Court shall be a Court of record and shall have all the powers of such a court including the power to punish for contempt of High Court or of the courts subordinate to it.
“That being the explicit position, appeal under Section 19(1) of the Act would lie only when High Court makes an order or decision in exercise of its jurisdiction to punish for contempt”, DB said.
“It may be one of the reasons which weighed with the Legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court”, DB said.
Court further added that Secretary and Director of Tourism would have ample opportunity to put forth their stand before the contempt court and explain that there was no deliberate or willful disobedience of the order alleged to be violated.
“It is for the contempt court to consider the plea, if any, taken by the appellants in response to the show cause notice and decide the same in accordance with law. Suffice it to say that the preliminary objection raised by advocate Bashir on the maintainability of this appeal is well founded and deserves to be accepted”, DB said.
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