Sujith Majeed vs. Sri.Jose.T.K - Kerala High Court, 03 December 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUE AY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941 Con.Case(C).No.1988 OF 2019 IN WP(C). 14924/2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 14924/2019(M) OF HIGH COURT OF KERALA PETITIONER/S: SUJITH MAJEED AGED 36 YEARS S/O.MAJEED, THATTAMPARAMBIL, K.T.R./116, KUTHAPADY TEMPLE, THAMMANAM P.O., COCHIN-682032. BY ADV. SRI.S.SUJIN RESPONDENT/S: SRI.JOSE.T.K AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. R1 BY GOVERNMENT PLEADER OTHER PRESENT: SR ADV N.N. SUGUNAPALAN FOR PETITIONER, SPL. GP. C.E. UNNIKRISHNAN THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Contempt Case (Civil) No. 1988/2019 -2- J U D G M E N T Dated this the 3rd day of December 2019 Heard Senior Advocate N.N.Sugunapalan and Special Government Pleader Sri C.E. Unnikrishnan.

The petitioner in W.P.(C) No.14924 of 2019 has filed the present contempt case substantially complaining against the respondent herein for the alleged disobedience of docket order dated 05.09.2019. The petitioner filed the writ petition for the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P2 and quash the proposal introduced for imposing entertainment tax at 10% on cinema industry by the Finance Bill of 2019 and also the declaration made to enforce the same from 01.04.2019; ii) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to

Contempt Case (Civil) No. 1988/2019 -3- Ext.P4 and quash the proposal introduced for imposing entertainment tax at 10% on cinema industry by the Finance Bill of 2019 and declaration made to enforce the same from 01.04.2019; iii) Issue writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P4 and P5 and quash the proposal introduced for imposing entertainment tax @ 5% and 8½ % on cinema industry; iv) To grant such other reliefs which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case interest of justice.”

The writ petition was taken up for admission on 05.09.2019. The Court passed order in I.A. No.5 of 2019, wherein the request of writ petitioner for amendment of writ prayer was considered and allowed. The case of petitioner in the writ petition was that the Government Order dated 31.08.2019, instead of leaving discretion to local bodies to fix the date or the rate at which the entertainment tax is to be implemented, itself prescribed the date as 01.09.2019. The Court after referring to the objections taken by the writ petitioner in this

Contempt Case (Civil) No. 1988/2019 -4- behalf, proceeded to note the submissions made by the Special Government Pleader appearing for the respondent. The disobedience complained in the contempt case has bearing on the submissions recorded by this Court in the docket order dated 05.09.2019. For convenience the same is excerpted hereunder:

“3. The Special Government Pleader submits that array of respondents is incomplete. According to him, the fact that order dated 31.08.2019 refers to the date of implementation as 01.09.2019 does not mean that, the entertainment tax is being collected at the rates specified by the order 31.08.2019. He further by referring to the averments in the writ petition together the stand taken in all the affidavits filed along with the applications submits that nothing is brought out on record to show that the entertainment tax is also collected as on date, warranting consideration of interim prayer by this Court. According to him, the procedure under section 279 is to be appreciated and understood with overall power of superintendence the government has in this behalf and also the purpose for which, the revised rate of entry tax is introduced in Municipalities, Panchayats etc.

Contempt Case (Civil) No. 1988/2019 -5-

The counsel appearing for the 4th respondent requests time till 18.09.2019 to get instructions. Post on 18.09.2019. The petitioner is given liberty to move the vacation court if at all it comes to the notice of the petitioner that without reference to Section 279 the order dated 31.08.2019 is implemented by the local bodies.

The petitioner in the contempt case complains that the respondent through a press release in Annexure A3 has stated as follows: “The information and publicity that the Government has stopped the introduction and enforcement of the Entertainment Tax newly introduced is wholly incorrect and against facts. The office of the concerned ministry has informs that there is no stay as such has been granted by the Court. The Entertainment Tax was withdrawn when the GST was introduced. This was re-introduced by the Government when the Entertainment Tax on cinema tickets were reduced by 6% and 10% respectively, the Entertainment Tax was re- introduced in local bodies.”

Contempt Case (Civil) No. 1988/2019 -6- The said statement made in the press, it is stated, for all purposes amounts to disobeying what is recorded by this Court in the docket order dated 05.09.2019. 5. Learned Senior Counsel refers to the decisions reported in State of Orissa v. Aswini Kumar Baliar Singh1 and Maruti Udyog Limited v. Mahinder C. Mehta2 and contends that there is an undertaking given by the respondent and the respondent, in disregard to such undertaking, released the press note and the same amounts to willful and deliberate disobedience of order of the Court.

Special Government Pleader Sri.C.E.Unnikrishnan objects to the maintainability of present contempt case and draws the attention of the Court to each one of the sentences already excerpted and contends that this Court has merely recorded the submissions made by him on 05.09.2019. Firstly, 1 (2003) 6 SCC 759 2 (2007) 13 SCC 220

Contempt Case (Civil) No. 1988/2019 -7- the Court has not accepted either the case of the petitioner and granted stay or suspension of the orders impugned in the writ petition and, likewise, by accepting the preliminary objections taken by the Government, refused or dismissed the interim prayers. The concluding portion in the docket order dated 05.09.2019 has given liberty to petitioner to move the vacation court if at all the respondent proposed to implement the orders impugned in the writ petition. According to him, the Court in exercise of its power under Article 129 or under Contempt of Courts Act, 1971 exercises quasi-criminal juri iction and unless and until all the ingredients attracting the definition of civil contempt are present the case ought not to be further proceeded with. By inviting the attention of the Court to the counter filed by the respondent he states there is no undertaking which is disobeyed by the respondent. According to him, the case is still pending in W.P.(C) No.14924 of 2019. The

Contempt Case (Civil) No. 1988/2019 -8- petitioner instead of working out the prayers on merit, without just reason has filed the present contempt case. He prays for dismissing the contempt case.

I have taken note of the respective submissions and perused the record. For brevity I refer not to reproduce the order and the contents of Annexure A3 which constituted the cause for filing the present contempt case. At the outset, by keeping in mind the grounds stated by the petitioner, I have once again perused the docket order dated 05.09.2019. Prima facie, looking at hindsight I am of the view that on 05.09.2019 this Court neither decided any of the issues between the parties nor recorded an undertaking allegedly now referred by the petitioner in the order dated 05.09.2019. The Court has merely recorded the submissions made by the parties and given discretion to writ petitioner to move the vacation court. The respondent if have created a situation where the entertainment

Contempt Case (Civil) No. 1988/2019 -9- tax is collected by the local authorities then, that constitutes a cause of action for either moving the vacation court or after re- opening before the Court where the writ petition is posted for further orders.

The contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. In other words, where action of contemner is in clear disregard of Court's order, it amounts to contempt. It is settled law that breach of an undertaking given to a Court by a person on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt. In the instant case, the Special Government Pleader had made his 'submissions' and it was not an 'undertaking'.

After taking note of the totality of circumstances, this court is of the view that the dis-obedience complained in

Contempt Case (Civil) No. 1988/2019 -10- the contempt case does not merit consideration and it is well established that the contempt, once it is brought to the notice of the Court, it is an issue considered between the Court and the contemnor. This Court is convinced that the contempt case need not be continued further.

Hence the contempt case is closed. S.V.BHATTI JUDGE jjj

Contempt Case (Civil) No. 1988/2019 -11- APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A1OF THE GOVERNMENT IMPOSING THE ENTERTAINMENT TAX ON 31.8.2019. ANNEXURE A2 CERTIFIED COPY OF THE ORDER DATED 5.9.2019 IN WRIT PETITION (C) 14924/2019. ANNEXURE A3OF THE CLARIFICATION ISSUED BY THE GOVERNMENT DATED 7.9.2019. ANNEXURE A4OF THE I.A.8 AND I.A.NO.9 /2019 IN WRIT PETITION 14924/2019. ANNEXURE A5 THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 23.9.2019.