Top News Headlines 29th Apr 2022: Correctness Of Judicial Order Cannot Be Decided In Contempt Proceedings

Correctness Of Judicial Order Cannot Be Decided In Contempt Proceedings: Andhra Pradesh HC

• In Ajay Kumar Parasaramka vs Pradeep Kumar Rath the Andhra Pradesh HC has held that a Court exercising contempt jurisdiction cannot test the legality or the correctness of the order or give any additional direction or delete any direction. 
• In the instant case, a contempt case was filed under the Contempt of Courts Act, 1971 by the petitioners for the disobedience of an order passed by the HC. The HC had passed an interim direction to the respondents not to dispossess the petitioners from the land in question. 
• It was alleged by the petitioners that after the passing of the interim order, the respondents had made an attempt to demolish the buildings of the petitioners in violation of the Court orders. Aggrieved, the present contempt petition had been filed. 
• The respondents, on the other hand, contended that the petitioners had occupied the land illegally. The same was allotted to the railways and was covered with wild growth, and the respondents/revenue authorities, alongwith the railway department, had demolished the unauthorised construction and erected caution boards stating that the land belongs to the Government. 
• The Hon’ble HC observed that once when the petitioners were in the possession of the land as encroachers, the provisions of the Andhra Pradesh Land Encroachment Act, 1905 should have been followed for the removal of the encroachment. The act of demolishing the compound wall to remove the encroachers from the Government land despite an interim order and without adherence to the procedure amounted to a Civil Contempt, defined under section 2(b) of the Contempt of Courts Act as any wilful disobedience to any judgement, decree. order , direction, writ or other process of Court or any wilful breach of any undertaking given to the Court. 
• Referring to the decision of the Hon’ble SC in Commissioner, Karnataka Housing Board vs C. Muddaiah (2007) SCC the HC observed that once an order is passed, it is the duty of the Court to implement the same without giving any interpretation, and if the order is contrary to law, they are at liberty to file an appropriate appeal before the appellate authority. But without preferring an appeal, the respondent cannot interpret the order and give a different meaning to it. This act had been held to be illegal in the impugned judgement. 
• The HC also referred to the decision of the Apex Court in Prithawi Nath Ram vs State of Jharkhand and ors. (2004) SCC wherein the Apex Court had observed that while dealing with an application for contempt, the Court is concerned with the question as to whether the earlier decision of the Court had been complied with or not. The Court cannot examine the correctness of the earlier decision which had not been assailed and take a view which is different from the earlier decision. 
• It was observed that if any party feels that the order is wrong or against rules or its implementation is not feasible or is impractical, it should either approach the Court that passed the order or invoke the Appellate jurisdiction. Rightness or wrongness of the order cannot be invoked in contempt proceedings. While dealing with the application for contempt, the Court cannot traverse beyond the order, non compliance of which is alleged. It cannot say what should or should not have been done. 
• Thus, in light of the above, the Court allowed the petition, and ruled that there had been an utter disobedience of the order in the case at hand. The Tehsildar in the case, was ordered to undergo simple imprisonment for a term of 6 months, and a fine of Rs. 2000/-.

More Meritorious Reserved Category Candidate Entitled To General Category Seat: SC

• In Bharat Sanchar Nigam Limited vs. Sandeep Choudhary (2015), Justices M R Shah and B V Nagarathna held that the seats/posts belonging to the General Category can be allotted to those candidates of the reserved category if their merit and position in the merit list permit them to do so.
• In this instance, a writ petition filed by BSNL that challenged the order of the Central Administrative Tribunal was dismissed by the HC. The ruling allowed an application by a candidate who held that the OBC candidates securing higher marks than that of the general category candidates are entitled to be accommodated against the general category seats. Consequently, the seats reserved for the OBC category were required to be filled in by remaining reserved category candidates on merit.
• It was contended by BSNL that the reserved category candidates might be adjusted against their own vacancies at the time-of-service allocation to acquire services of greater preference if they are selected on merit and put on a list of general category candidates. Contrary to this, the respondents contended that reserved category candidates who scored higher than the last candidate in the general category must be adjusted against the general category quota and must be considered in the general category pool, requiring the remaining reserved category candidates to be appointed against the reserved category quota.
• Article 16 (4) states that nothing prevents the state from creating provisions for the reserve of appointments in favour of any backward class of persons that, in the view of the state, is not sufficiently represented in the state's services.
• In Indra Sawhney V. Union of India, 1992 Supp (3) SCC 217, it was ruled that the 50 percent requirement only applies to reservations imposed in favour of backward classes under Article 16(4) of the Constitution. In addition, it was discovered that there are two types of reservations: vertical reservations (in favour of SC, ST, and Other Backward Classes) and horizontal reservations (in favour of the physically handicapped). Furthermore, horizontal reservations intersect with vertical reservations, forming interlocking reservations. Even with horizontal reservations present, the ratio of reservations in favour of the backward class of residents remains the same and should stay so. This is how reservations are handled in various states, and there's no reason it shouldn't continue.
• In Rajesh Kumar Daria V. Rajasthan Public Service Commission, (2007) 8 SCC 785, the Court observed the definition of horizontal reservation and the contrast between vertical reservation and horizontal reservation.
• After hearing both parties' arguments and referring to the aforementioned cases, the Hon'ble Court held that candidates affiliated with the vertical reservation categories are permitted to be selected in the general category and that their selection based on their merit cannot be tallied against the quota reserved for their category. 
• Furthermore, it was decided that reserved category applicants who scored better than the last general category candidate were entitled to a seat or post in the unreserved categories. Moreover, merit must be given preferential treatment even when applying horizontal reservation, and if applicants from the SCs, STs, and OBCs have obtained higher marks, they must be evaluated against seats designated for unreserved candidates. Candidates from restricted categories are eligible to claim seats in unreserved categories, provided their merit and location on the merit list allow it.
• The Hon'ble Court also held that the entire selection process would be disturbed by reorganizing and inserting two OBC candidates onto the general category's list as the two general category candidates would have to be expelled or removed. As a result, it directed, utilizing its powers under Article 142 of the Constitution, that these two general category candidates would not be dismissed from service on reorganizing the select list.
• Therefore, the Hon'ble SC dismissed the appeal.

Compensation U/S 138 NI Act And Not Interim Compensation Can Be Recovered From Deceased Accused Estate: Calcutta HC

• In the latest judgement, Hon’ble Calcutta High Court stated that interim compensation given under section 143A of the NI Act cannot be recovered from the estate of the accused who dies before the final judgement is announced. However, further, the court propounded that compensation granted under section 138 of the pertinent act, can be recovered from the estate of a deceased accused.
• In the given case of Indranil Mukherjee v the State of West Bengal and others , an appeal was filed against a dismissed application filed under Section 421 of the Code of Criminal Procedure, 1973, seeking recovery of the interim compensation awarded to the petitioner by an order dated March 4, 2020.
• In the instant case, the petitioner filed a complaint under Sections 138/141 of the Negotiable Instruments Act, 1881, that the accused had dishonoured the cheque of Rs. 50 lakhs and claimed interim compensation should be provided for the same before the Metropolitan Magistrate .Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (“NI Act”) provides that where any cheque is drawn by any person on an account maintained by him with a banker and if it is returned back by the banker due to insufficient balance to honour the cheque or the cheque value exceeds the amount arranged for payment from the account, such person is deemed to have committed an offence and is punishable with an imprisonment or fine or with both.
• Subsequently, the concerned Magistrate on 4 March 2020 had allowed the application and made the accused pay interim compensation to petitioner amounting to twenty per cent of the total cheque according to Section 143A of the Act within sixty days from the date of order.
• A revisional application was filed against the order passed on 4 March 2020 in concerned Session Court by the respondent. The order dated March 4, 2020, was upheld by the concerned Sessions Court on 2 December 2020 as the accused succumbed to death during the trial of the case leaving behind a widowed wife and 2 children. 
• The petitioner claimed that an interim compensation is to be recovered from the estate of the deceased accused as liability prevails even after death of the accused and referred to the judgements, Sri Jeyaram Educational Trust v. A.G. Syed Mohideen 2 SCC 513 (2010) and NEPC Micon Ltd. v. Magma Leasing Ltd.  4 SCC 253 (1999), given by Hon’ble Supreme Court where it was held that the liability to pay interim compensation from the estate of the accused is not absolved on death of the accused. 
• On the other hand, the respondent submitted that the compensation passed under Section 143A is interim in nature and the same is refundable if the accused is proven innocent. In the event of the death of an accused during the trial, the innocence of the accused cannot be proved and hence the amount of compensation directed to be paid in terms of Section 143A is irrecoverable. Respondent had relied upon the judgments rendered in Madhu v. State of Kerala  SCC OnLine Ker 2353 (2020) , Smt. Girija v. K. Vinay SCC OnLine Kar 434 (2003), and M. Abbas Haji v. T.N. Channakeshava 9 SCC 606 (2019) and hence alleged that proceeding under Section 138 of the Negotiable Instruments Act cannot continue against the legal representatives of the drawer of the cheque and abates upon his death.
• The Calcutta HC affirmed that interim compensation awarded under section 143A of the NI Act cannot be recovered from the estate of the deceased accused. In Girija v. K. Vinay SCC OnLine kar 434 ( 2003), the Karnataka High Court had given the precedent that no proceedings can be initiated for an offence punishable under Section 138 of the Negotiable Instruments Act against the legal heirs of the deceased. As the accused died during the pendency of the trial, there is no finality in the decision of the court. The interim compensation ceased to exist and thus cannot be extracted from the accused’s estate. Hence, the Court concluded that the compensation to be provided will depend on the final verdict of the case.