STATE OF J & KversusMOHD. YAQOOB KHAN AND ORS.

                              STATE OF J & K                                        A
                                       v.
                   MOHD. YAQOOB KHAN AND ORS.

                              AUGUST 26,1992 .

              [LALIT MOHAN SHARMA, S.MOHAN AND                                      B
                      N. VENKATACHALA, JJ.]

      Constitution of India, 1950-Article 136-Appeal against order made in
a contempt proceeding-Disposal of contempt proceeding while the stay peti-
tion and the writ petition pending-Legality oHnitial ex-parte stay order C
whether gets confirmed by subsequent orders passed in contempt proceed-
ing-Direction to High Court.

      Contempt of Courts Act, 1971-Bections 11,T4,19-Disposal of con-
tempt proceedings, while stay petition and writ petition· pending-Legality
of-Initial ex-parte stay order whether gets confirmed by subsequent orders D
passed in contempt proceeding-Direction to High Court.

       Respondent No.1 in the appeal, filed a writ petition under Article 226
 of the Constitution for the implementation of a decree which was modified
 subsequently by a compromise between the parties.
                                                                                    E
      An ex-parte interim order was passed by the High Court on 19.03.90
directing notice to be Issued to the respondents In the writ petition as also
In the stay matter, with a direction that the case be listed In the second
week of May, 1990. The Government was further directed to give the
writ-petitioner, on his furnishing a "bond, 50% of the timber out of the            F
agreed timber referred to in the compromise.

         The wrlt-petitloner;wlthout waiting for the next date In the case, filed
  on 02.04.90, an application for Initiation of a proceeding for contempt of
  court against the appellant-State and two oflts officers, for non-compliance
. of the direction Issued by the Court under Its order dated 19.3.1990.             G
       On 26.7.91, two Commissioners were appointed for submitting a
 report, and a report v•as submitted.

     The contempt proceeding was disposed of in the light of the
 Commissioner's report, directing the appellant-State to Implement the              H
                                   43
    44                    SUPREME COURT REPORTS (1992] SUPP.1 S.C.R.

A   interim direction issued on 19.3.91.

          In the appeal by special leave by the State it was contended that the
    appellant and its officers· were expecting that they were not required to
    Immediately obey the interim direction, as the stay matter was fixed to be
    heard in the second week of May, 1990; that there was no time indicated
B   for compliance or the direction in the order; that stay application was still
    pending final disposal and the appellant was to be heard; that so long as
    the stay matter In the writ petition was not finally disposed of, the further
    proceeding In the contempt case was itself misconceived BJJd no orders
    therein should have been passed.
c          The respondent-writ petitioner opposed the appeal contending that
    the orders passed in the contempt proceedings should be treated to have
    disposed of the stay matter in the writ petition also; that the counsel for
    the respondents in the writ petition bad been beard before the orders were
    issued; that the order dated 19.3.1990 in the circumstances, was to be
D   treated to have become final and, binding on the State; and that the High
    Court was right in issuing the further direction by way of implementation
    of its earlier order.

          Allowing the appeal, this Court,

E          HELD: 1.01. The orders passed in the contempt proceeding were not
    justified, being pre-mature, and, must, therefore, be entirely Ignored. The
    High Court should first take up the stay matter in the writ case, and
    dispose it of by an appropriate order. Only therea~r it shall proceed to
    consider whether the State and Its authorities could be accused of being
F   guilty of having committed 'Contempt of Court. (48-C]

          1.02. 1be respondents before the High Court were raising a serious
    objection disputing the claim of the writ petitioner. Therefore, an order in
    the nature of mandatory direction could not have been justified unless the
    Court was in a position to consider the objections and record a finding,
G   prime facie In nature, in favour of the writ petitioner. Besides challenging
    the claim on merits, the respondent is entitled to raise a plea of non-main-
    tainability of a writ application filed for the purpose of executing a decree.
                                                                           (47-GJ
          1.03. The scope of a contempt proceeding is very different from that
H of the pending main case, yet to be heard and disposed of (in future).
            STATE OF J & K v. MOHD. YAQOOB [SHARMA, J.]                    45

Besides, the respondents, in a pending case are at a disadvantage, if they A
are called upon to meet the merits of the claim in a contempt proceeding
at the risk of being punished. It is, therefore, not right to suggest that it
should be assumed that the initial order of stay got confirmed by the
subsequent orders passed in the contempt matter. (47-EJ

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3472 of                  B
1992.

    From the Judgment and Orderd dated 193.1992 of the Jammu &
Kashmir High Court in C.O.A.No. 25 of 1990.

        Mr. Barish N. Salve and Ashok Mathur for the Appellant.                  c
        M.C. Bhandare and SK Bhattacharya for the Respondents.

        The Judgment of the Court was delivered by

      SHARMA, J. Heard the learned counsel for the parties, Special leave        D
is granted.

       2. The appeal is directed against the order dated March 19,1992
(signed by the Hon'ble Judge on March 20, 1992) passed on an application
of the respondent no.1 being C.C.A. 25 of 1990 for initiating a proceeding       E
for contempt of court against the appellant-State and two of its officers,
namely, Shri S.S. Billoria, Secretary to Government of Jammu and Kashmir
and Shri N.R.Gupta, Commissioner/Secretary, Government of Jammu and
Kashmir for non-compliance of the direction issued by the Court undor its
order March 19,1990. In view of the order which we are proposing to pass,
it is not necessary to deal with all the facts leading to the present case in    F
detail and it will be sufficient for the purposes of the appeal to set out the
circumstances briefly, as mentioned hereafter.

       3. The respondent No.1 filed a writ petition under Article 226 of the
Constitution registered as Writ Petition No. 133 of 1990 for the implemen-       G
talion of, what has been described by Mr. Bhandare, the learned counsel
for the respondents, as a decree modified subsequently by a compromise
between the parties. On 19.03.90 an ex-parte interim order was passed by
the High Court directing notice to be issued to the respondents in the writ
petition as also in the stay matter with a direction that the case would be
listed in the second week of May, 1990. The order further said that in the       H
    46                    SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A meantime, out of the agreed timber in accordance with the compromise
  entered into between .the writ petitioner and the Government, 50% ·.of the
  timber shall be given to the writ petitioner on his furnishing a .bond.
  According to Mr. Salve, the learned counsel for the appellant, the appel-
  lant and its officers were expecting that they were not required to imme·
  diately obey the interim direction, as the stay matter was fixed to be heard
B in the second week of May, 1990, and specially as there was no time
  indicated for compliance of direction. How~ver, the writ petitioner, without
  waiting for the next date in the case, filed the application on 02.04.90 on
  which the impugned order was passed. According to Mr. Salve the stay
   application was still pending final disposal and the appellant was to be
C heard. Then again, there was no occasion for assuming that the ex-parte
   order, which·did not even mention any period for compliance, had to be
  obeyed immediately. At this stage it has to be appreciated that the
   aforesaid direction although passed as an interim order in a pending
  interlocutory matter was, in substance, a final order allowing the writ
D petition in part without hearing the other side. The direction was not for
  .maintainance of status quo; nor again was it restraint order on the State
  authorities forbidding from taking any step to which the writ petitioner
  could have an objection. As a result of the interim direction, the writ
  petitioner was to receive the fruits of the decree (in the language of the.
  learned counsel for the respondents before us, that is, the writ petitioner) to
E the extent of half. The facts disclose that the stakes in the case are very high.
  According to the State it had already paid a huge amount of money. Mainly
  it has discharged its obligation in full. Hence it is not liable to pay anything ·
  furhter or to deliver any timber as claimed by the writ petitioner. That issue
  remains to be decided at the time of the final hearing of the writ petition:
F
           4. The matter was pending for some time. By an order passed on
    26.07 .91 in the contempt matter two commissioners were appointed by the
    Court for submitting a report as indicated in the order. The commissiOners
    accordingly submitted a report. The contempt. proceeding was disposed of ·
    by the impugned order whereby the State has been asked to implement the
G   interim direction issued on March 19,1991 in the light of the corllmi-
    ssioner's report. Dealing with the objections raised on behalf of the State,
    the High Court made certain observations against its case; but followe.d it
    by declaring that,

H            "It is no stage to go to the merits of the case which factum
           STATE OF J & K v. MOHD. YAQOOB [SHARMA, J.]                     47

       . is required to be adjudicated upon in the main writ peti-               A
         tion but the petitioner is required to be provided 50 per
         cent timber, to be assessed with increment$, 'in light of the
         above said Gov.ernment orders."

       5. We find great force in the argument of Mr. Salve that so long the
stay matter in the writ petition was. not finally disposed ·of, the further      B
proceecfuig in the contempt case was itself misconceive,d and no orders
therein should have been passed. Mr. Bhandare appearing on behalf of the
writ petitioner, who is respondent before us, has strenuously contended
that the orders passed in the contempt proceedings should be treated to
have disposed of the stay matter in the writ petition also. He laid great        C
emphasis on the fact that the counsel for the respondents in the writ
petition had been heard before the orders were issued. He invited our
attention to the merits of the claim. It is argued that the order .dated March
19,1990 must, in the· circumstances, be treated .to have become final and,
therefore, binding on the State and the High Court was right in issuing the      D
further direction by way of implementation of earlier order.

      We do not agree. The scope of Ii contempt proceeding is very
different from that .,f the pending main case yet to be heard and disposed
of (in future). Besides, the respondents in a pending case are at a disad-
vantage. if they are called upon to meet the merits of the claim in a E
contempt proceeding at the risk of being punished. It is, therefore, not right
to suggest that it should be assumed that the initial order of stay got
confirmed by the subsequent orders passed in the contempt matter.

      6. We, therefore, hold that the High Court should have first taken F
up the stay matter withou.t any threat to the respondents in the writ case
of being punished for contempt. Only after disposing it of, the other case
should have been taken up. It is further significant to note that the
respondents before the High Court were raising a serious objection disput-
ing the claim of the writ petitioner. Therefore, an order in the nature of. G
mandatory direction could not have been justified unless the Court was in
a position to consider the objections and record a finding, prima facie in
nature, in favour of the writ petitioner. Besides challenging the claim on
merits, the respondent is entitled to raise a plea of non-maintainability of
a writ application filed for the purpose of executing a decree. It appears
that at an earlier stage the decree in question was actually put in execution H
    48                    SUPREMECOURTREPORTS (1992)SUPP lS.C.R.

A when the parties are said to have entered into a compromise. According
  to the case of the State the entire liability under the decree (read with the
  compromise) has already been discharged. The dispute, therefore, will be
  covered by section 47 of the Code of Civil Procedure. It will be a serious
  question to consider whether in these circumstances the writ petitioner was
  entitled to maintain his application under Article 226 of the Constitution
B
  at all. We do not want to decide any of these controversies between the
  parties at this stage except holding that the orders passed in the contempt
  proceeding were not justified, being pre-mature, and must, therefore, be
  entirely ignored. The High Court should first take up the stay matter in the
  writ case, and dispose it of by an appropriate order. Only thereafter it shall
C proceed to consider whether the State and its authorities could be accused
  of being guilty of having commited contempt of Court.

         7. Accordingly the appeal is allowed and the impugned judgment is
  ;et aside. The High Court may now proceed with the case in accordance
  with the observations made above. The respondent No. 1 shall pay the cost
D of this appeal to the appellant-State which are quantified at Rs.5,000.
    V.P.R.                                                     Appeal allowed.