Allahabad High Court
Bhartaya Khadya Nigam Mazdoor Sangh ... vs Mr Ashok K.K. Meena, M.D. Cum Chairman, ... on 4 January, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Neutral Citation No. - 2024:AHC-LKO:999 Court No. - 5 Case :- CONTEMPT APPLICATION (CIVIL) No. - 2276 of 2022 Applicant :- Bhartaya Khadya Nigam Mazdoor Sangh Sangarsh Samiti Thru. Its Secy. Rajender Prasad, Bareilly Opposite Party :- Mr Ashok K.K. Meena, M.D. Cum Chairman, Food Corporation Of India, New Delhi And Others Counsel for Applicant :- Syed Haseen Ahmad Counsel for Opposite Party :- Dev Prakash Singh,Satish Kumar Misra,Shikhar Anand Hon'ble Abdul Moin, J.
(I.A. No. 5 of 2023 in re: Application for Recall of the Order)
1. Heard Shri Syed Haseen Ahmad, learned counsel for the applicant as well as Shri Shikhar Anand, learned counsel for all the opposite parties.
2. This is an application for recall of the order dated 06.04.2023 passed by this Court.
3. This Court, vide order dated 06.04.2023, after hearing both the counsels for the contesting parties had rejected the contempt application on the ground that no case for contempt is made out.
4. Instant application for recall has been filed on the ground that there are various documents available on record which have not been considered by this Court and that the order passed by this Court dated 06.04.2023 is passed on misrepresentation and on incorrect facts and thus the Court is vested with ample power to recall the order.
5. A preliminary objection has been raised by Shri Shikhar Anand, learned counsel for all the opposite parties that the order dated 06.04.2023 has been passed by this Court while exercising the jurisdiction of contempt in the contempt application and the order has been passed on merits and consequently the application for recall of the order dated 06.04.2023 is in fact an application for review of the order dated 06.04.2023 which would not be maintainable under Contempt of Court Act, 1971 (hereinafter referred to as "Act, 1971") and the rules made thereunder as the Act, 1971 and the rules do not provide for review of an order passed under the Act, 1971.
6. In response, Shri Syed Haseen Ahmad, learned counsel for the applicant has placed reliance on judgment and order passed by Division Bench of this Court on 27.04.2022 in Special Appeal No. 110 of 2022 in re: Dr. J.S. Yadav Vs. Dr. Anil Kumar Upadhyay and Others to contend that the Division Bench of this Court, upon a special appeal being filed against the order whereby the contempt Court had allowed a recall application, has held that the Single Judge rightly passed the order of recall.
7. The aforesaid argument though attractive on the face of record merits outright rejection inasmuchas the perusal of the judgment and order passed by Division Bench of this Court in the case of Dr. J.S. Yadav (supra) would indicate that the special appeal came to be filed when the recall applications of orders dated 26.04.2012 and 28.08.2012 passed in Contempt Case No. 716 of 2004 whereby the contempt petition had been rejected as infructuous, were allowed. The recall applications therein had been filed on the ground that there were misapprehension of fact, the contempt application had not become infructuous and that statement of the learned counsel for the contempt petition of a settlement between the petitioners and the opposite party in the contempt petition on the basis of which the contempt petition was dismissed as infructuous was only confined to two contempt petitioners and not all petitioners.
8. Further, the Division Bench of this Court in the case of Dr. J.S. Yadav (supra) has itself noted that the order passed by the Division Bench in the year 2001 had not been complied with and consequently the contempt petition could not have become infructuous.
9. It has also been noted by the Division Bench that the statement of the counsel, as given in the contempt petition of contempt petition having been rendered infructuous was beyond his competence and could not have been made in respect of those contempt petitioners who had not entered into any agreement inasmuch as learned counsel for the applicants gave an impression to the contempt Court that all the contempt petitioners had settled the matter which was nothing short of a misrepresentation amounting to fraud. Thus, the Division Bench held that the contempt petition could not have been dismissed as having been rendered infructuous.
10. Considering the aforesaid, it is thus apparent that the judgment passed by Division Bench of this Court in the case of Dr. J.S. Yadav (supra) would have no applicability in the facts of the instant case.
11. In the instant case, it is not that the contempt application had been rejected as infructuous rather the contempt Court had gone through the pleadings on record as well as arguments raised by both the counsels for the contesting parties and thereafter found that no case of contempt was made out and the contempt application was rejected on merits.
12. There is a vast difference between contempt application being rejected as infructuous and contempt application being decided on merits- an order by which contempt application has been rejected as infructuous is liable to be recalled in case the applicant is is able to demonstrate that the contempt application has not been rendered infructuous while an order passed on merits in a contempt application cannot be recalled as no power of review is conferred under the provisions of Act, 1971 read with rules made thereunder.
13. Now, the Court proceeds to consider as to whether the contempt petition has been decided on merits i.e. after hearing all the contesting parties and upon perusal of records and whether an application for recall of the said order would be maintainable.
14. The order dated 06.04.2023 for which the application for recall has been filed, as already indicated above, is not an order by which either the contempt petition had been dismissed for default or dismissed as infructuous rather it is an order on the merits of the case. Thus, an application for recall filed by the applicant is in fact an application for review as would be apparent from a perusal of the averments made in the affidavit filed in support of the application to indicate that certain documents, etc. have not been considered by this Court.
15. The Apex Court in the case of Delhi Administration vs. Gurdip Singh Uban and others - (2000) 7 SCC 296 has held that an application for; clarification, modification or recall, in substance, is an application for review.
16. It is settled proposition of law that a review or an appeal is a statutory remedy. In this regard, a coordinate Bench of this Court in the case of Sharwan Kumar vs. Harminder Raj Singh (IAS) passed in Contempt Petition No.1591 of 2000, decided on 09.02.2016 has held as under:-
"After hearing learned counsel for parties and going through the record, the first and foremost question to be considered that if the contempt petition has already been dismissed on merit then the whether the application for recall of the said order is maintainable or not ?
Answer to the said question finds place in the Division Bench judgment of this Court passed in the case of Mahaveer Prasad Verma Vs. Central Administrative Tribunal, Lucknow and others, 2013 (31) LCD 351, in paragraph No. 4 held as under:-
"By the order dated 10.1.2012, the contempt petition filed by the petitioner, was dismissed in his absence on the ground that the petitioner respondent has not moved any application to bring on record the successor since the contemner was transferred. Tribunal noted that an application for recall of an order passed in a contempt proceeding, is not maintainable. So far as the finding of Tribunal that recall/review application is not maintainable, seems to be correct. Virtually, recalling of the order dated 10.1.2012, will amount to review of earlier decision was was passed with the finding on merit to the extent that successor officer has not been brought on record. Review/recall or appeal are the statutory remedies, vide AIR 1966 SC 641, Harbhajan Singh v. Karam Singh and others, 1988 (14) ALR 706, Vijai Bahadur Vs. State of U.P., 1995 (26) ALR 627, Ram Jiwan Singh and others Vs. The District Inspector of Schools, Kanpur and others, 1979 (5) ALR 168, 1998 (33) ALR 456, New India Assurance Co. Ltd. Vs. Smt. Bimla Devi and others, 1997 (88) RD 562, Smt. Shivraji and others Vs. Dy. Director of Consolidation, Allahabad and others, AIR 1970 SC 1273, Patel Narshi Thakershi and others Vs. Pradyumansinghji Arjunsinghji, 1987 (13) ALR 680, Dr. (Smt.) Kuntesh Gupta Vs. Mgt. of Hindu Kanya Mahavidyalaya, Sitapur etc., AIR 1964 SC 436, Laxman Purushottam Pimputkar Vs. The State of Bombay and others, and AIR 1965 SC 1457, Patel Chunibhai Dajibha etc. Vs. Narayanrao Khanderao Jambekar and another. Unless provided under the Act, no application for review/recall may be moved. The contempt of Courts Act, 1971 does not contain any provision for review of a judgment. Hence the impugned order dated 13.9.2012 does not seem to suffer from any impropriety or illegality""
17. Apart from above, there is no power under the Act of 1971 conferring any power of review and thus no such power can be exercised by this Court.
18. A Division Bench of this Court in the case of State vs. Baldev Raj - 1991 SCC OnLine All 1070 has also held that the Act of 1971 impliedly excludes the power of recall or review.
19. Keeping in view the aforesaid discussion, this Court is constrained to observe that instant application for recall is nothing but an attempt to re-argue of the case on merits i.e. the recall application is in fact an application for review which is not permissible in the eye of law.
20. The recall application is thus, rejected.
Order Date :- 4.1.2024 Mohit Singh/-
............................................................................................(Abdul Moin, J.)