Calcutta High Court
Manju Banerjee And Ors. vs Debabrata Pal And Ors. on 6 October, 2005
Equivalent citations: (2006)1CALLT87(HC)
Author: A.K. Ganguly
Bench: Asok Kumar Ganguly, Tapan Dutt
JUDGMENT A.K. Ganguly, J.
1. The question which has cropped up in this case is whether the order dated 30.03.2004 passed by West Bengal Land Reforms & Tenancy Tribunal (LRTT.) holding that no contempt was committed by the Block Land & Land Reforms Officer, Nanoor can be challenged before this Court by filing a writ petition under Article 226 of the Constitution of India.
2. To put it differently, the only point on which the matter was argued before this Court was whether the order of LRTT by which it refused to exercise its Jurisdiction under the Contempt of Courts Act can be assailed before this Court under Article 226 of the Constitution of India in view of the Constitution Bench Judgment of the Supreme Court in the case of L. Chandra Kumar v. Union of India.
3. No other controversy of the case was urged before us in this matter.
4. In order to appreciate the nature of the question involved in this case, the Court is required to consider the provisions under which LRTT has been set up. It cannot be disputed that LRTT has been set up under the provisions of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997 (hereinafter referred to as the said Act). The said Act was passed in terms of the enabling provisions under Article 323B of the Constitution of India which empowers the appropriate Legislature to enact law for the setting up of a Tribunal for adjudication and trial by such tribunals of disputes, complaints or offences with respect to all or any of the matters specified in Sub-Article 2 of the Article 323B of the Constitution of India. Under clauses (d) of sub Article (2) of Article 323B of the Constitution, there are provisions enabling the State Government to set up a Tribunal dealing with land reforms by way of acquisition by the State of any estate as defined under Article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling of agricultural land or in any other way LRTT has been set up by virtue of the aforesaid constitutional provisions. Under the Sub-Article(3) of Article 323(1)B may provide for the establishment of a hierarchy of Tribunals. Such law may specify the jurisdiction, power including the power to punish for contempt and authority which may be exercised by each of such Tribunal. Such Article(4) of Article 323B contains an overriding clause to the following effect:
323 B(4). The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time beign in force.
5. Acting under such constitutional provision, LRTT, which has been set up, and it has been conferred with powers under the Contempt of Courts Act, 1971 (hereinafter referred to as the CCA).
6. Section 15 of the said Act confers on LRTT the contempt jurisdiction, power and authority as a High Court has and the LRTT may exercise the same under the provisions of the CCA, subject to two modifications. They are (a) reference in CCA, to a High Court shall be construed as a reference of the Tribunal; and (b) any reference therein to the Advocate General in section 15 of CCA, shall be construed as a reference to the Advocate General of the State.
7. From the aforesaid statutory dispensation, it is clear that LRTT has been created under the said Act. The said Act has been enacted pursuant to the provisions of the Constitution. The Constitution itself provides that such a Tribunal may have powers including the power to punish for contempt. As already noted section <15 of the said Act provides that this power to punish for contempt will be exercised in accordance with the provisions of the CCA.
8. The extent of the jurisdiction and power of LRTT and many other similar Tribunals came up for consideration before the Supreme Court in the case of L. Chandra Kumar v. Union of India, . In that Judgment, the Hon'ble Supreme Court, after an analysis of various case laws held that these Tribunals are competent to hear matters even where the vires of various statutory provisions are questioned. Such tribunals are discharging their duties not as substitutes for the High Court or the Supreme Court, but their function is only supplementary and all the decisions of such Tribunals will be subject to scrutiny under Article 226/227 of the Constitution before the Division Bench of the respective High Courts to which they are subordinate. It was also made clear that the power of the Tribunals to test the vires of Legislation and Rule is subject to one exception, namely, that such Tribunals shall not question the vires of the parent statute under which they have been set up. The most significant observation of the Supreme Court about the decision of the Tribunal and the power of scrutiny by the High Court has been summed up in the following sentence and which is quoted below:
All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statute will also be subject to scrutiny before a Division Bench of the respective High Court.
The matter was further clarified by saying that such Tribunal will continue to act, as a Court of first instance in respect of the areas of law for which they have been constituted and it was made clear that it will not be open to litigant to directly approach the High Court even in cases where the question of vires of statutory legislation is involved except of course the case where the vires of the parent legislation under which the Tribunal has been set up is challenged.
9. The learned counsel for the petitioner relying on the aforesaid observation of the Supreme Court argued that the decision which has been rendered by this LRTT in the instant case, namely, that no contempt has been committed by the Block Land & Land Reforms Officer, Nanoor, can be challenged before this Court by filing this petition under Article 226 of the Constitution of India. The learned counsel further submits that recently the Hon'ble Supreme Court in a Judgment rendered in cases of T. Sudhakar Prasad v. Government of Andhra Pradesh reported in 2001(1) SCC 516 has held that an order passed by the Tribunal in exercise of its jurisdiction under the said CCA, 1971 can be challenged before the High Court. The learned Advocate General, on the other hand, has submitted that those submissions have been made on behalf of the petitioners on a misconstruction of the statutory provisions as also on an improper understanding of the two aforesaid Judgments of the Apex Court in the case of L. Chandra Kumar (supra) and T. Sudhakar Prasad (supra).
10. Learned counsel for the petitioner has also referred to section 11 of the said Act and submitted that it is made clear in the said section that no appeal or application against any decision of the Tribunal in a proceeding shall lie to any Court except the Supreme Court and the Division Bench of the High Court exercising jurisdiction under Article 226 and Article 227 of the Constitution of India. The learned counsel submitted that in view of the said section an appeal or application would lie to the Division Bench against the decision of the LRTT holding that no contempt has been committed by the concerned Block Land & Land Reforms Officer. The learned counsel has also referred to the preamble of the said Act and cited certain decisions on the question how preamble has to be read. The learned counsel also referred to the decisions of the Supreme Court in the case of The Secretary, Regional Transport Authority, Bangalore & Anr. v. D.P. Sharma & Anr., and submitted that in case of any ambiguity preamble can throw some light. In order to highlight the same argument, the learned counsel has also referred to the decision of the Supreme Court reported in the case of Poppatlal Shah v. State of Madras, In order to contend that preamble itself is a guiding force. Similarly the learned counsel referred to the decision of the Supreme Court in the case of S. Gopal Ready v. State of Andhra Pradesh. in order to contend that entire act has to be looked into for the purpose of interpretation. The learned counsel also referred to the decision of the Supreme Court in the case of Vaijanath and Ors. v. Guramma and Anr. in order to contend that a beneficial interpretation has been given to the said Act. The learned counsel also referred to an unreported decision of the Supreme Court in the case of Md. Hussain Halder v. Union of India, referred in WPCT No. 1 of 2000. However, the said unreported Judgment has not decided anything which can throw any light on the present controversy.
11. The several decisions referred to above and which were cited on the importance of the preamble in the interpretation of statutes are not relevant in answering the question which is at issue in this case. So those decisions are not required to be discussed in detail.
12. The learned Advocate General, on the other hand, referred to provisions of Article 323B and also referred to section 6 of the said Act. The learned Advocate General also referred to the provisions of Article 323(3)(b) of the Constitution and section 11 of the said Act and referred to various Judgment in order to contend that an order passed by LRTT holding that no contempt has been committed is not amenable to scrutiny on a petition under Article 226 of the Constitution of India.
13. In order to appreciate the nature of the question involved in this case, the Court is required to consider the provisions under which the said Tribunal has been set up. From the discussion hereinabove, it is clear that LRTT has been set up under the provisions of the Act which was passed in the terms of the enabling provisions under Article 323B of the Constitution of India.
14. The jurisdiction of the LRTT under the said Act, has two broad features. Jurisdiction under section 6 and the jurisdiction under section 15 which is controlled by CCA. The said Act has three chapters. The first chapter deals with preliminaries. The second chapter provides for establishment of a Tribunal and its composition and function. The third chapter deals with miscellaneous provisions.
15. Section 4 deals with the composition and function of the Tribunal and section 5 deals with power of the LRTT to frame rules/ regulations for the purpose of regulating its procedure and for conduct of its business.
16. Section 6 deals with jurisdiction, power and authority of the Tribunal and for a proper appreciation of the nature of its jurisdiction section 6 is set out hereinbelow:
6. Jurisdiction, power and authority of Tribunal-Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power an authority in relation to-
(a) (any order) made by an Authority under a specified Act;
(b) an application complaining in action or culpable negligence of an Authority under a specified Act;
(c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953:
(d) application relating to matters under any provisions of a specified Act or matters relating to any Constitutional validity of any act under the provisions of a specified Act;
(e) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act;
17. The jurisdiction of the LRTT under section 6 is in respect of certain specified Act mentioned in section 2(r) of the said Act.
18. Sections 7 and 8 of the said Act provide for exclusion of jurisdiction of other Courts. But that is subject to the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India to be exercise by Division Bench and also subject to the jurisdiction of Supreme Court. Section 9 provides for transfer of case records from High Court to the LRTT except, in those matters where Division Bench of High Court already has exercised jurisdiction under Articles 226 and 227 of the Constitution. Section 10 provides for applications to be made to the Tribunal. Section 11 provides for appeals or applications to lie before the Division Bench of the High Courts under Articles 226 and 227 of the Constitution. Section 12 provides for that any reference to High Courts in any specified Act shall be deemed to be a reference to the LRTT with effect. From the date of its appointment by State Government under section 6.
19. CCA is not one of the specified Acts and does not come within the sweep of section 6 of the said Act under which jurisdiction has been conferred on the LRTT. The conferment of jurisdiction on LRTT under the CCA figures under the 3rd chapter which deals with the miscellaneous provisions of the said Act. This is done by section 15 and which is set out hereinbelow:
15. Power to punish for contempt of Tribunal.- The Tribunal shall have, and shall exercise, the same jurisdiction, power and authority in respect of contempt of the Tribunal as a High Court has and may exercise, and, for this purpose, the provisions of the Contempt of Courts Act, 1971, shall have effect, subject to the modifications that-
(a) the reference therein to a High Court shall be construed as a reference to the Tribunal, and
(b) the reference therein to the Advocate-General in section 15 of the said Act shall be construed as a reference to the Advocate-General of the State.
20. As noted above, the conferment of contempt power on LRTT under section 15 can be traced back to the provisions of Articles 323(3)(b). The said clause (b) is set out below:
323B(3) * * * * * *
(b) specify the jurisdiction, powers, (including the power to punish for contempt) and authority which may be exercised by each of the said Tribunals;
21. It is axiomatic that a Superior Court of Records with plenary jurisdiction like the High Courts and the Supreme Court of India has inherent contempt power. This power is an inalienable attribute of such Court of Records in view of the age old tradition of English Common Law. LRTT as already stated above, cannot be equated with the High Courts nor can it be their substitute. If the contempt jurisdiction had not been conferred on LRTT under section 15 of the said Act, LRTT would not have been able to exercise contempt jurisdiction at all. But exercise of contempt jurisdiction by High Court is independent of the provisions of CCA. Of course the regulatory provisions under CCA, 1971 are guiding factors to the High Courts and Supreme Court for exercise of the contempt power. But one thing is clear that contempt power of High Courts and Supreme Court has not been conferred by the CCA. Such power existed independently of CCA and even before CCA or any contempt law was enacted (see Surendra Nath Banerjee v. Cheif Justice and the Judges of the High Court at Fort William in Bengal (10 Indian Appeal 171) and Sukdev Singh Sodhi, AIR 1954 Supreme Court 186. Such inherent power of a Court of Record has been recognized by the Constitution under Article 215 Constitution of India in so far as High Court is concerned and by Article 129 of the Constitution of India in so far as Supreme Court is concerned. So the power of LRTT in so far as contempt jurisdiction is concerned has to be strictly exercised in accordance with the provisions of CCA subject to minor modifications suggested in section 15 of the said Act.
22. Under the provisions of CCA section 19 is the only provision for filing of appeal from an order passed in exercise of the Courts jurisdiction to punish for contempt. It is obvious that LRTT is also guided by the said section. Section 19 of the CCA is set out.
19 Appeals.-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt.
(a) where the order or decision in that of a single Judge, to a Bench of not less than two Judges of the Court;
(b) where the order or decision is that of a Bench, to the Supreme Court;
Provided that where the order or decision is that the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal; the Appellate Court may order that-
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant has not purgued his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).
(4) an appeal under sub-section (1) shall be filed-
(a) in the case of an appeal to a Bench of the High Court, within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
23. Looking at the history of the appeal provisions in contempt legislation in our country it appears that two previous laws of Contempt, namely. Contempt of Courts Act, 1926 and the Contempt of Courts Act, 1952 did not contain appeal provisions. It is for the first time that section 19 of CCA, 1971 provides for an appeal.
24. The expression "in the exercise of its jurisdiction to punish for contempt" in sub-section 1 of section 19 has called for some judicial interpretation. This particular turn of phrase in CCA seems to be inspired by section 13 of the English laws of Contempt, namely, Administration of Justice Act of 1960. But section 13 of the Administration of Justice Act is in greater detail. Sub-section 1 of section 13 of the Administration of Justice Act, 1960 reads as follows:
13. Appeal in cases of Contempt of Court.-(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a Court in the exercise of jurisdiction to punish for Contempt of Court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.
25. In the book "The Law of Contempt" by Samaraditya Pal (3rd Edition), the learned author, after comparing these two provisions, has opined, and in our view rightly that since section 13 in the English Law is more elaborate that has not led to such difficulties of interpretation as has the scantly worded section 19 of the CCA.
26. It must be remembered that the nature of contempt jurisdiction is slightly different from various other jurisdiction which is exercised by Courts and this difference has been judicially recognised. In the exercise of contempt jurisdiction normally there are three features. Normally the petitioner in a contempt petition does the job of an informer who brings the alleged acts of contempt to the notice of the Court. Next part is played by the Court itself in either taking or refusing to take cognizance of that information. At times the Court may act suo-moto. And the Court acts both as the accuser and the Judge. That is why it is always said that the exercise of contempt power calls for utmost caution and circumspection. The other part is played by the person who is proceeded against in contempt. The overwhelming judicial opinion is that the duty of the person who informs the Court of the alleged acts of contempt virtually ends by bringing it to the notice of the Court. He as no vested right in the proceeding to pursue it further if the Court finds that information does not call for initiation of an action in contempt or that information is such that it does not call for any cognizance by Court or that the information is trivial in nature or it does not demonstrate any deliberate act of defiance by alleged contemner. There may be very many reasons for the Court not to initiate any action for contempt. It has been said that in such a situation the informer or the petitioner does not have any right within the purview of section 19 of the CCA which gives only the person proceeded against a statutory right of appeal, which shall "lie as of right".
27. A close perusal of section 19(1) read with section 19(2) will reveal that right thereunder has been given in favour of the person who is proceeded against by the Court in exercise of its jurisdiction to punish for contempt. But a mere informer of the alleged act of contempt has not been given any statutory right of appeal which 'will lie as of right'. However, the Courts have held if there is any gross case where contempt is palpable and the Court, despite such a case being brought to its notice, refuses to initiate contempt action, the informer is not wholly without a remedy. The informer may not have a right under section 19 but he can always move the Apex Court under Article 136 of the Constitution for redressal of his grievances.
28. Soon after the CCA came into force in 1971, a somewhat similar question came up for consideration before the Supreme Court in the case of Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, CJ of the Orissa High Court, . The Three Judge Bench of the Supreme Court speaking through Justice Bhagwati explained the rationale of section 19 as follows:
The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference.
29. The position had been made further clear by the learned Judges as follows:
Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its Jurisdiction to punish for contempt. Such a decision would not therefore, fall within the opening words of section 19, sub-section (1) and no appeal would lie against it as of right under that provision.
30. The Court also made it clear in the said paragraph if the High Court acts perversely by not initiating contempt proceeding in a case in which it should have so acted, petition under Article 136 of the Constitution can be made before the Hon'ble Supreme Court by the aggrieved party.
31. To the same effect in the Judgment of Supreme Court in the case of D.N. Taneja v. Bhajan Lal, reported in (1988)3 Supreme Court Cases 26 in Taneja, the Apex Court relied on the decision in the case of Baradakanta Mishra (supra).
32. The learned Judges in Taneja put this principles very succinctly in paragraph 12 in Taneja's case. The paragraph 12 is set out below:
12. Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first time that under section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the Court and the alleged contemner. 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. After furnishing such information he may still assist the Court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the Court and the contemner. 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 contemner who has been punished for Contempt of Court.
33. In Taneja it has also been stated that in a gross case where the High Court acts perversely by not initiating contempt action in a fit and proper case the aggrieved person who informed the Court of the alleged act of contempt can approach the Supreme Court under Article 136.
34. Section 19 again came up for consideration before the Supreme Court in the case of State of Maharashtra v. Mahboob S. Allibhoy & Ors., and the same principles have been reiterated in paragraph 4 in Mehboob S. Allibhoy (supra). From paragraph 3 of the said Judgment in Allibhoy, it appears that question which was examined by the Court was whether an appeal is maintainable against an order dropping the proceeding for contempt. The learned Judges after considering the ratio in the case of Baradakanta Mishra and Taneja and after a close scrutiny of the provision of section 19 came to the conclusion "no appeal is maintainable against an order, dropping the proceeding for contempt or refusing to initiate a proceeding for contempt." The learned Judges held that it is apparent not only from sub-section (1) of section 19 but also from sub-section (2) of section 19 of CCA.
35. In view of such consistent and authoritative pronouncement of Supreme Court, this Court is unable to take a contrary view in the instant case that the order dropping the contempt proceeding is subject to further scrutiny under Article 226 of the Constitution, even though it is not appealable under section 19 of the CCA. Reference in this connection be made to a Division Bench Judgment of Punjab & Haryana High Court in the case of R.P. Bhardwaj v. Smt Kiran Agarwal, reported in 1989 Criminal Law Journal 481. In a short Judgment, the learned Judges of the Division Bench held after referring to Baradakanta Mishra (supra) and Taneja's (supra) case and also the decision of the Supreme Court in the case of Purushottamdas Goel v. B.S. Dhillon, reported in AIR 1978 Supreme Court 2255 that an appeal could be preferred under section 19 only in a case where the Court has exercised its jurisdiction to punish for contempt and this has been interpreted by the Supreme Court to mean an order punishing the contemner after finding him guilty.
36. Rather recently the question of exercise of contempt jurisdiction by the Tribunal came up for consideration before the Supreme Court in the case of T. Sudhakar Prasad (supra). The questions which were agitated in T. Sudhakar Prasad (supra) have been stated by the learned Judges in paragraph 2 and it is clear from a perusal of paragraph 2 that question which is being considered in this case is totally different from the questions enumerated in paragraph 2 of T. Sudhakar Prasad (supra). In T. Sudhakar Prasad's case section 17 of the Administrative Tribunals Act which is similar to section 15 of the said Act was considered. The Supreme Court held in paragraph 17 and at page 531 of the report that any order passed by the Tribunal punishing for contempt shall be appealable only to the Supreme Court. The clear pronouncement of the Supreme Court on this point has been given in Sudhakar Rao after considering the ration in Chandrakumar and the same is extracted below:
Any order or decision of the Tribunal punishing, for contempt is appealable under section 19 of the Act to the Supreme Court only. The Supreme Court in the case of L. Chandra Kumar has nowhere said that orders of the Tribunal holding the contemner guilty and punishing for contempt shall also be subject to judicial scrutiny of the High Court under Articles 226/227 of the Constitution in spite of remedy of statutory appeal provided by section 19 of the Contempt of Courts Act being available. The distinction between orders passed by the Administrative Tribunal on matters covered by section 14(1) of the Administrative Tribunals Act and orders punishing for contempt under section 19 of the Contempt of Courts Act read with section 17 of the Administrative Tribunals Act, is this: as against the former there is no remedy of appeal statutorily provided, but as against the latter statutory remedy of appeal is provided by section 19 of the Contempt of Courts Act itself.
37. For the reasons aforesaid, this Court holds that section 19 will govern the situation in the matter of exercise of contempt jurisdiction by the LRTT. But since in this case, LRTT refused to initiate contempt proceeding its order is not appealable under section 19 of the CCA. For the reasons aforesaid, this writ petition is dismissed.
There will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously.
T.K. Dutt, J.
38.I agree.