Gujarat High Court
Sunilkumar Popatbhai Patel vs State Of Gujarat on 15 September, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1263 of 2023
In R/MISC. CIVIL APPLICATION NO.820 of 2023
In R/MISC. CIVIL APPLICATION NO.155 of 2023
In R/SPECIAL CIVIL APPLICATION NO.2160 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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SUNILKUMAR POPATBHAI PATEL
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR.G.M. JOSHI, SENIOR ADVOCATE, with MR GAURAV
CHUDASAMA(5660) for the Applicant(s) No. 1,10,11,2,3,4,5,6,7,8,9
for the Opponent(s) No. 2,3
MR. K.M. ANTANI, AGP for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 15/09/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) (1) By way of the present applications, the applicants-original petitioners pray for recalling and reviewing the order dated Page 1 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 04.07.2023 passed by this Court in the captioned Misc. Civil Application No.820 of 2023 in Misc. Civil Application No.155 of 2023 and the applicants further seek a direction to direct the respondent authorities to comply with the order dated 22.07.2022 passed by the learned Single Judge (in the main writ petition - Special Civil Application No.2160 of 2019) and order dated 20.02.2023 passed in Misc. Civil Application No.155 of 2023.
(2) On a specific query raised by this Court with regard to the maintainability of the present application seeking review under the Contempt of Courts Act, 1971, learned Senior Advocate Mr.Joshi has asserted that the same would be maintainable.
(3) Learned Senior Advocate Mr.Joshi has referred to the provisions of Article 215 of the Constitution of India, the extract of which is reproduced herein:
"215. High Courts to be courts of record: - Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for the contempt of itself".
It is contended that the aforesaid Article encapsulates wide powers of the High Courts.
Page 2 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined It envisages that a High Court, as a court of record, has inherent powers under Article 215 of the Constitution of India, including the power to review its orders, where it prima facie appears on face of it that the impugned orders suffer from infirmity and that there exists an apparent error on the face of the record. It is submitted that there is a distinction between the jurisdiction exercised by this Court under the Constitution of India or under the Contempt of Courts Act (which is merely a codification relating to the procedure) is "Original Jurisdiction", as distinct and different from any Court or Tribunal (inferior Courts in the language of the Apex Court) exercising jurisdiction conferred on it by a particular statute and in that case the inferior Court or Tribunal is bound by vesting of jurisdiction by the Statutes. However, the High Court, exercising its Original Jurisdiction is a superior court and the powers / jurisdiction does not get abridged or restricted by any Statute.
(4) It is submitted that the Apex Court, in various judicial pronouncements has reinforced that the High Court, being a Court of record as envisaged under Article 215 of the Page 3 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Constitution of India, must have the inherent plenary powers to correct the record, if any apparent error is noticed by the High Court in respect of any orders by it.
(5) In support of his submission, the learned Senior Advocate has placed reliance on the judgement of a Full bench of the Kerala High Court, in the case of Bhagvat Singh vs. Manoj Joseph & Ors. (2018) S.C.C. OnLine Ker. 4900, which had the occasion to decide on the maintainability of the review petition against the order in a contempt case.
(6) It is submitted that considering the similar issue, the decision of M.M Thomas vs. State of Kerala, (2000) 1 S.C.C. 666, was referred. In this case, the question before the Apex Court was with respect to the maintainability of the review petition filed in an appeal under the Kerala Private Forests (Vesting and Assignment) Act (shortly referred to as 'PF Act').
(7) Under the said Act, a provision was incorporated to review the judgements passed by the Forest Tribunal and Appellate orders passed by the High Court. In this particular Page 4 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined case, the State had moved a review petition before the High Court to review an appellate judgement, alleging that the judgement suffers from an error apparent on the face of record. The High Court had reviewed thereby allowed the appeal. Thereafter, the said order was assailed before the Apex Court by the respondents, wherein the question regarding review was considered. Upon perusing the same, the Apex Court has ruled that "The High Court being a court of record as envisaged under article 215 of the Constitution of India, must have the inherent powers to correct the record. Therefore, if any apparent error is noticed by the High Court in respect of any orders by it, the High Court has not only the power but the duty to correct the judgement". The extract of the relevant paragraphs of the aforesaid judgement are produced below, which reads as under:-
"14. The High Court being a court of record as envisaged under article 215 of the Constitution of India, must have the inherent powers to correct the record. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its record correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders by it, the High Court has not only the Page 5 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined power but the duty to correct it. The High Court's power in that regard is plenary".
(8) It is submitted by the learned Senior Advocate that the Full Bench of the Kerala High Court noted that "though the M.M Thomas case was decided in a matter arising under the PF act, the principle laid down squarely applies in a contempt case as well". Therefore, the Kerala High Court held that a review petition is maintainable against the order in a contempt case.
(9) Reliance is also placed on the decision rendered in the case of Shyamsundar vs. Lokesh Chandra & Ors. 2011 (2) Mh. L.J., a Division Bench of the Bombay High Court. He has pointed out the observations made in Paragraph No.14 in the aforesaid judgement, which is as under:
"14. The Courts of Record would inherently possesses to correct its record, and its term "Records "would imply the power of Courts to correct the errors on judicial side, in order to maintain majesty of the law, Court, and justice The restrictions in ordinary law of own order on review which apply to authorities constituted by statute namely that the jurisdiction to review must be conferred by the statute has no application to power to deal with Contempt of Court, exercised by the High Court under Article 215 of the Constitution of India. Thus power to review is available even beyond section 114 of Civil Procedure Code read with Order 47 thereof Page 6 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined and would be available to advance the cause for which such court is constituted".
(10) It is thus urged that in the backdrop of the aforesaid submissions, it could safely and thus rightly be stated that a review petition would be maintainable even though the original application is filed under Section 12 of the Contempt of Courts Act, 1971. It is submitted that the original power is found in Article 215 of the Constitution of India and, therefore, a mere codification for the purpose of regulating the procedure cannot abridged or restrict the power of this Court to review the decision when the applicants are in a position to show that the respondents have, by ignoring the final directions and relying on some observations in another litigation, clearly committed willful and deliberate contempt, or under section 114 of the of the Code of Civil Procedure, 1908 Order 47 thereof, the same would not vitiate the proceedings and/or restrict this Court to exercise the power conferred upon it under Article 215 of the Constitution of India in as much as the Contempt of Courts Act or any other statute cannot have an overriding effect on the inherent powers and plenary jurisdiction of this Court.
Page 7 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined (11) It is submitted that the present review application viz. Misc. Civil Application No.1263 of 2023 was moved seeking to review the order dated 04.07.2023, which came to be passed by this Court in Misc. Civil Application No.820 of 2023 preferred in Misc. Civil Application No.155 of 2023 in Special Civil Application No.2160 of 2019.
(12) It is contended that the captioned review application has been preferred on the principal ground that said order dated 04.07.2023 suffers from the apparent error on face of the record. It is submitted that the said order came to be passed on the impression that on earlier occasion also where similar petitions were preferred viz., Special Civil Application No.16634 of 2020 and Special Civil Application No.11397 of 2020, this Court had dismissed the said petitions on the ground that since the order of transfer was post the resolutions.
(13) It is submitted that considering the identical nature to the aforesaid petition, this Court inadvertently misconceived the same in case of the present applicants as well, thereby Page 8 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined believing the facts of the above petitions in case of the present applicants stating that the same also fits into the case of the present applicants thus, the said impugned order came to be passed by this Court. However, it is submitted that in fact, the applicants most strenuously and scrupulously states that the applicants had availed the benefit of Inter-District transfer post the completion of five years, wherein the respondent authorities had made them to file an undertaking thereby forgoing their seniority. However, in view of the governing resolution dated 20.01.2018 in connection with the resolution dated 18.01.2017, which confers the benefit such as seniority, promotion and first higher-scale amongst other from the date of their original appointment, the applicants are entitled to the benefits, as directed by this Court.
(14) It is asserted by the applicants, that having taken the Inter-District transfer between the aforesaid resolutions they became entitled to the benefit of seniority on the ground that the applicants have availed the transfer prior to the resolution dated 20.01.2018. Perusing the transfer dates of the present applicants, Page 9 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined it clearly suggests that the order of transfer of the applicants are issued in 2017 itself. Thus, this leaves no doubt that the applicants have availed the transfer post the resolutions dated 18.01.2017 and 20.01.2018. Therefore, the present applicants have prayed for reviewing its order.
ANALYSIS AND CONCLUSION:
(15) The applicants had filed the captioned applications being Misc. Civil Application No.820 of 2023 and Misc. Civil Application No.155 of 2023 under the provision of Section 12 of the Contempt of Courts Act, 1971. Vide order dated 04.07.2023, the said applications were disposed of by closing the contempt proceedings reserving liberty in favour of the applicants to challenge the order dated 22.07.2022 and order dated 20.02.2023. Being aggrieved by the order dated 04.07.2023, the applicants have filed the present application seeking review.
(16) It is interesting to note that the review application does not contain any provision under which it is filed and the prayer clause Page 10 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined is also bereft of the provision under which the applicants want this Court to exercise its power. Thus, the application, being bereft of any provisions of law, is required to be rejected. However, since by placing reliance on various judgements as noted hereinabove, the applicants have sought review, we may deal with the same.
(17) A perusal of the facts of the judgement in the case of Bhagvat Singh (supra), the Full Bench decision of the Keral High Court, it is manifest that the review application was sought on the ground of filing a false affidavit on which the contempt proceedings were closed. Such is not the case of the applicants.
(18) In the case of M.M.Thomas (supra), the Apex Court was dealing with the provision of Article 215 of the Constitution of India read with the provision of Sections 8(2) and 8-C of Kerala Private Forests (Vesting and Assignment) Act, 1971. In paragraph No.7, the Apex Court has recorded that the High Court's power to review can be found under the provision of section 8-C (2) of the Act. In Page 11 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined the facts of the case, the Apex Court has held that the High Court, under Article 215 of the Constitution of India, has the inherent power to correct the records. There cannot be any cavil on the proposition of law.
(19) In the case of Shyamsundar (supra), the Division Bench of the Bombay High Court has held that "In exercise of powers to punish the contemnor by virtue of section 215 of the Constitution of India, notwithstanding the provision of the Contempt of Courts Act, 1971, the High Court has jurisdiction to review its own order". It is reiterated that the High Court has the powers to correct its record and correct the errors on judicial side.
(20) Having regard to the aforementioned decisions, we are of the considered opinion that the present application seeking review of the order dated 04.07.2023 closing the proceedings of the captioned Misc. Civil Applications, which was specifically filed under Section 12 of the Contempt of Courts Act is not maintainable.
(21) It would be pertinent to refer to the landmark decision of the Apex Court in the case of Page 12 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Pallav Sheth vs. Custodan, 2001 (7) S.C.C.
549. The Apex Court has discussed the contours of powers to be exercised by the High Court under Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1971. The issue which fell for consideration before the Apex Court was with regard to the limitation in filing an application under Section 20 of the Act and the provision of the Limitation Act, 1963. The Apex Court after survey of various judgement has held thus:
"21 The power of this Court and the High Court under the Constitution for taking action for contempt of subordinate Court came up for consideration in Delhi Judicial Service Association, Tis Hazari Court, Delhi V/ s. State of Gujarat, (1991) 4 SCC 406 . It referred to Sukhdev Singh Sodhi's case (supra) and held that even after codification of the law of contempt in India the High Courts jurisdiction as the Court of Record to initiate proceedings and take seisin of the matter remained unaffected by the Contempt of Courts Act. It also referred to R. L. Kapur V/s. State of Madras, (1972) 1 SCC 651 and by following the said decision observed as follows :
".................The Court further held that in view of Art. 215 of the Constitution, no law made by a legislature could take away the jurisdiction conferred on the High Court nor it could confer it afresh by virtue of its own authority."
22 Referring the Contempt of Courts Act, 1971 it observed with relation of the powers of the High Court as follows :
"...................Inherent powers of a superior Court of Record have remained unaffected even after codification of contempt Law. The Contempt of Courts Act, 1971 was enacted to define and limit the powers of Courts in punishing contempt of Courts and to regulate their procedure in relation thereto. Section 2 of the Act defines contempt of Court including criminal contempt.Page 13 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023
NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Sections 5, 6, 7, 8 and 9 specify matters which do not amount to contempt and the defence may be taken. Section 10 relates to the power of High Court to punish for contempt of subordinate Courts. Section 10 like Section 2 of 1926 Act and Section 3 of 1952 Act reiterates and reaffirms the jurisdiction and power of a High Court in respect of its own contempt and of subordinate Courts. The Act does not confer any new jurisdiction instead it reaffirms the High Court's power and jurisdiction for taking action for the contempt of itself as well as of its subordinate Courts................."
23 ...............
24 ............
25 A Constitution Bench of the case of Supreme Court Bar Association's case (supra) while considering this Court's power to punish for contempt at page 421 observed as follows :
"21. It is, thus, seen that the power of this Court in respect of investigation or punishment of any contempt including contempt of itself, is expressly "subject to the provisions of any law made in this behalf by Parliament" by Art. 142 (2). However, the power to punish for contempt being inherent in a Court of record, it follows that no act of Parliament can take away that inherent jurisdiction of the Court of record to punish for contempt and Parliament's power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this Court may impose in the case of established contempt. Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself, (we shall refer to Section 15 of the Contempt of Courts Act, 1971, later on) and this Court, therefore, exercises the power to investigate and punish for contempt of itself by virtue of the powers vested in it under Arts. 129 and 142(2) of the Constitution of India."
"24. Thus under the existing legislation dealing with contempt of Court, the High Courts and Chief Courts were vested with the power to try a person for committing contempt of Court and to punish him for established contempt. The legislation itself prescribed the nature and type, as well as the extent of punishment which could be imposed on a contemner by the High Courts or the Chief Courts. The second proviso to Section 4 of the 1952 Act (supra) expressly restricted the powers of the Courts not to "impose any sentence in excess of what is specified in Page 14 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined the section" for any contempt either of itself or of a Court subordinate to it."
26 Referring to the powers of the High Court under Art. 215 to impose punishment with reference to Contempt of Courts Act, 1971 at page 428 the Court held as follows :
"37. The nature and types of punishment which a Court of record can impose in a case of established contempt under the common law have now been specifically incorporated in the Contempt of Courts Act, 1971 insofar as the High Courts are concerned and therefore, to the extent the Contempt of Courts Act, 1971 identifies the nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Art. 215 either. No new type of punishment can be created or assumed."
27 In Dr. L. P. Misra V/s. State of U. P., (1998) 7 SCC 379 a contention was raised that while exercising powers under Art. 215 in punishing the appellant therein for Contempt of the High Court the procedure contemplated by Section 14 of the Contempt of Courts Act, 1971 had not been followed. This Court, dealing with his contention, observed as follows :
"12. After hearing learned counsel for the parties and after going through the materials placed on record, we are of the opinion that the Court while passing the impugned order had not followed the procedure prescribed by law. It is true that the Court can invoke powers and jurisdiction vested in it under Art. 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. It is in these circumstances the impugned order cannot be sustained."
xxxxxxxxxxxx 30 There can be no doubt both this Court and High Courts are Courts of Record and the Constitution has given them the powers to punish for contempt. The decisions of this Court clearly show that this power cannot be abrogated or stultified. But if the power under Art. 129 and Art. 215 is absolute can there be any legislation indicating the manner and to the extent that the power can be exercised? If there is any provision of the law which stultifies or abrogates that power under Art. 129 and/or Art. 215 there can be little doubt that such law would not be regarded as having been validly enacted. It, however, appears to us that providing for the quantum of punishment or what may or may not be regarded as acts of contempt or even providing for a period of limitation for initiating Page 15 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Art. 129 or Art. 215 of the Constitution.
31 This Court, has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Art. 226 has to be exercised in accordance with, if any, enacted by the legislature it would stand to reason that the power under Art. 129 and/or Art. 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously.
32 The Contempt of Courts Act, 1971 inter alia for what is not to be regarded as contempt, it specifies in Section 12 the maximum punishment which can be imposed; procedure to be followed where contempt is in the face of the Supreme Court or is the High Court or cognizance of criminal contempt in other cases is provided by Sections 14 and 15; the procedure to be followed after taking cognizance is provided by Section 17; Section 18 provides that in every case of criminal contempt under Section 15 the same shall be heard and determined by a Bench of not less than two Judges, Section 19 gives the right of appeal from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt. There is no challenge to the validity of any of the provisions of the Contempt of Courts Act as being violative or in conflict with any provisions of the Constitution. Barring observations of this Court in the Supreme Court Bar Association's case (supra), where it did not express any opinion on the question whether maximum punishment fixed by the 1971 Act was binding on the Court, no doubt has been expressed about the validity of any provision of the 1971 Act. In exercise of its constitutional power this Court has, on the other hand, applied the provisions of the Act while exercising jurisdiction under Art. 129 or 125 (215) of the Constitution. In Sukhdev Singh Sodhi's case (supra) it recognised that the 1926 Act placed a limitation on the amount of punishment which could be imposed Baradakanta Mishra's case was decided on the interpretation of Section 19 of the Act, namely, there was no right of appeal if the Court did not take action or initiate contempt proceedings. In the case of Firm Ganpat Ram Rajkumar's case (supra) the Court did not hold that Section 20 of the 1971 Act was inapplicable. It came to the conclusion that the application for initiating contempt proceedings (was within time and limitation had to be calculated) as for the purpose of limitation date Page 16 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined of filing was relevant and furthermore that was a case of continuing wrong. In Kartick Chandra Das case (supra) the provisions of the Limitation Act were held to be applicable in dealing with application under Section 5 in connection with an appeal filed under Section 19 of the Limitation Act. A three Judge Bench in Dr. L.P. Misra's case (supra) observed that the procedure provided by the Contempt of Courts Act, 1971 had to be followed even in exercise of the jurisdiction under Art. 215 of the Constitution. It would, therefore, that if Section 20 is so interpreted that it does not stultify the powers under Art. 129 or Art. 215 then, like other provisions of the Contempt of Courts Act relating to the extent of punishment which can be imposed, reasonable period of limitation can also be provided."
(22) In order to appreciate the issue, we may borrow few excerpts of the aforenoted observations of the Apex Court. The Apex Court has held that even after codification of the law of contempt in India the High Courts' jurisdiction as the court of record to initiate proceedings and take seisin of the matter remained unaffected by the Contempt of Courts Act. The inherent powers of a superior Court of Record have remained unaffected even after codification of the contempt law. The Contempt of Courts Act, 1971 was enacted to define and limit the powers of Courts in punishing contempt of Courts and to regulate their procedure in relation thereto. The Act does not confer any new jurisdiction instead it reaffirms the High Court's power and jurisdiction for taking action for the contempt of itself as well as of its Page 17 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined subordinate Courts. It is true that the Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. The Apex Court has also held that if there is any provision of law which stultifies or abrogates that power under Article 129 and / or Article 215 there can be little doubt that such law would not be regarded as having been validly enacted. Simultaneously, the Apex Court has cautioned by observing that "this Court, has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Art. 226 has to be exercised in accordance with, if any, enacted by the legislature it would stand to reason that the power under Art. 129 and/or Art. 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously."
(23) Thus, the kernel of the observations of the Apex Court is that the power or jurisdiction conferred under Article 215 of the Constitution has to be exercised in consonance Page 18 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined with the provisions of validly enacted law. The Contempt of Courts Act, 1971 was enacted to define and limit the powers of Courts in punishing contempt of Courts and to regulate their procedure in relation thereto. An analogy which can be safely presumed is that in absence of any provision of law prescribed under the Contempt of Court Act, 1971 or the Rules framed thereunder, the High Court cannot exercise its power of review on an order, which is passed in an application filed under section 10 or 12 of the Contempt of Courts Act. There cannot be any cavil on the proposition that the exercise of powers under Article 215 of the Constitution of India by the High Court for the contempt proceedings are inherent and unlimited and the power to punish under the contempt of Courts Act flows from it. The powers of the High Court, while dealing with the matters of Contempt of Courts is limited by the preamble of the Contempt of Courts Act, 1971. Section 18 of the Act provides for filing an appeal against an order or decision passed in exercise of jurisdiction to punish for contempt. Section 23 empowers the Supreme Court and High Court to frame Rules. In exercise of powers conferred under Section 23 of the Act, the Contempt of Court Page 19 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined (Gujarat High Court) Rules,1984 are framed. Neither the Act nor the Rules, stipulate any provision of review, which means that the Act and the Rules have expressly excluded the power of review on the order or decision passed in exercise of jurisdiction conferred by the Act and the Rule. When the Act or the Rules do not confer inherent power or power of recall or review and provides remedy of appeal against order or decision in the matters of contempt, the power of the High Court to recall or review in the matters of Contempt of Court invoking the provisions of the Contempt of Courts Act, 1971 cannot be exercised.
(24) We may reiterate that the present application does not contain any provision of law under which they are filed, the prayer clause is also bereft of provision of law under which the relief is claimed. It is no more res integra that the power to exercise review stems out of the law, and such power cannot be exercised unless the same is provided under the law. However, in our considered opinion, the High Court, in an order passed while exercising the power under the Contempt of Court Act, 1971 in an application filed under the provision of the Act has an inherent power Page 20 of 21 Downloaded on : Sat Sep 16 17:20:55 IST 2023 NEUTRAL CITATION C/MCA/1263/2023 CAV JUDGMENT DATED: 15/09/2023 undefined to correct clerical or typing mistake or review and recall the order in case the order or decision has been obtained by committing fraud. In the present case, we do not find that the order dated 04.07.2023 closing the contempt proceedings suffers from any of the aforesaid infirmity.
(25) Hence, the captioned application in its present incarnation is not maintainable. The same stand rejected.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(M. R. MENGDEY,J)
***
Bhavesh-[PPS]*
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