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[Cites 23, Cited by 0]

Uttarakhand High Court

Unknown vs Utpal Kumar And Another on 20 August, 2020

Author: Sharad Kumar Sharma

Bench: Sharad Kumar Sharma

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                     Contempt Petition No. 784 of 2019

Himanshu Joshi
                                                                         ...Applicant
                                           Vs.

Utpal Kumar and Another
                                                                      ...Respondents



Mr. Shakti Singh, Advocate for the applicant.
Mr. P.C. Bisht, Standing Counsel for the State of Uttarakhand.
                                                         Judgment reserved: 29.07.2020
                                                       Judgment Delivered: 20 .08.2020

Hon'ble Sharad Kumar Sharma, J (Oral)

The matter is heard through video conferencing.

2. Its anguishing to observe, that the learned counsel for the petitioner after arguing this review, in contempt petition for about 4 days. On the previous dates fixed for arguments, on the issue of maintainability of the review application in a contempt proceedings, which are drawn under Section 12/14 of the Contempt of Courts Act, had expressed an unprecedented and uncalled for apprehension, requesting the Court that while deciding the review application his arguments to be considered in detail by the Court, whether they are relevant or not for deciding the controversy.

3. It is an uncalled for gesture, which has been expressed by the learned counsel for the review applicant, even otherwise also, I am of the opinion that, the Court is bound to consider the argument extended by the learned counsel and has to record its reasoning for not accepting the same.

4. The contempt petition in question has been titled as to be a contempt petition, which has been preferred by the applicant, under Section 12 of the Contempt of Courts Act, 1971. The applicant therein had alleged non-compliance of the judgment dated 17.04.2018 as 2 rendered by the learned Single judge, in Writ Petition No. 154 of 2017 'Himanshu Joshi vs. State of Uttarakhand and Others', as well as the judgment dated 20.07.2018 as rendered by the Division Bench of this Court, in Special Appeal No. 342 of 2018, titled as Dr. Priyanka Arora and Others vs. Himanshu Joshi and Others'. As per the judgment rendered by the learned Single Judge in its judgment dated 17.04.2018, the Court had passed the following orders particularly those the directions as contained in paragraph 24 and 27 of the judgment, which were sought to be complied, which are quoted hereunder:

"24. However, it is made clear that for all such posts on which the regularization was being made pursuant to the amendment of 2016 though the Government cannot regularize the ad hoc, temporary or contractual employees on these posts but these 17 posts cannot remain vacant as well, therefore, Government shall take immediate steps for filling up these vacancies in accordance with law and as per the prescribed selection procedure, but since some of the candidates might be working on these sanctioned posts for the last many years, the Government would always be at liberty to grant a reasonable "weightage point" and "age relaxation" to such candidates, in making regular selection on those posts by making these posts available by way of an open competition.
27. Therefore as regarding the interveners who are Staff Nurses and Lab Technicians in "Veer Chandra Singh Garhwali Government Medical Science and Research Institute, Srinagar", although their regularization still cannot be made in terms of the amendment made in the year 2016, for the simple reason that the amendment itself has been quashed and set aside, but this itself will not restrict the State Government from regularizing their services independently as a one-time measure as that would 19 be in terms of the exception created by the Hon'ble Apex Court in Umadevi."

5. The interveners of the above writ petition feeling themselves to be aggrieved against the judgment of the learned Single Judge dated 17.04.2018 had preferred a special appeal, being Special Appeal No. 342 of 2018. The special appeal, thus filed was decided 3 by the Division Bench, vide its judgment dated 20.07.2018, of which I was also one of the members. The special appeal was decided with the following directions as contained in paragraph-16 of the judgment, which is quoted hereunder:

"16. Having rendered the above discussion, the upshot of the same will be as follows:
The Appeal is disposed of as follows:
We make it clear that the direction contained in Paragraph 24 of the impugned judgment need not be understood as a direction to immediately dislodge the appellants. The Government will be free to take a decision in this regard as is brought to our notice by the learned Chief Standing Counsel in accordance with the terms of the contract, relevant Government Orders and in accordance with law in regard to the continuity of the appellants. We, however, make it clear that the process for regular selection must be carried out with utmost despatch. Learned Chief Standing Counsel would submit in this regard that the vacancies, namely, 218, which means the vacancies, which are also occupied by the appellants, have been reported to the Uttarakhand Public Service Commission, six months ago; however, certain queries have been posed by the Commission; they will be answered within a period of two weeks from today (Uttarakhand Public Service Commission as such is not a party in this case). Besides recording the submission of the learned Chief Standing Counsel, we also direct that the queries, which have been posed by the Commission, will positively be responded to within a period of two weeks from today by the concerned Authority in the Ayush Department. On receipt of further information from the concerned Authority in the Ayush Department, Uttarakhand Public Service Commission will take follow-up measures and expedite the regular selection for all 218 posts of Ayurvedic Medical Practitioners, including the vacancies, which are presently held up by the appellants.
No order as to costs"

6. Alleging its non-compliance, the applicant herein has filed the present contempt petition on 08.12.2019. There was an office report that the contempt petition is barred in view of the provisions contained under Section 20 of the Contempt of Courts Act. Section 20 of the Act of 1971 is quoted hereunder:

"20. Limitation for actions for contempt.--No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. --No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.""
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7. However, ultimately the contempt petition was taken up on merits and the same was decided by this Court by the judgment dated 08.01.2020 holding thereof that the contempt was barred by Section 20 of the Contempt of Courts Act and, accordingly, the same was dismissed with the following observations:

"15. Learned counsel for the petitioner further argues that the special appeal was filed by the respondents herein. Filing of a special appeal by the respondent, which was admittedly contested by the present petitioner, would amount to have knowledge of the judgment dated 20.07.2018. Thus, the responsibility to serve the copy of the judgment by the respondent of special appeal is equally vested upon him to be discharged, if he alleges its non- compliance or when it was the petitioner, who desired its compliance.
16. In such an eventuality, if the petitioner wants the compliance of the judgment of the Division Bench, it was he who was expected to file the same before the competent authorities within the specified time frame as provided under the Act.
17. Having not done so, the implications of Section 20 of the Act cannot be diluted under the pretext that since the appeal has been filed by the respondent itself it will not eradicate the embargos created by Section 20 of the Contempt of Courts Act."

8. Seeking its review, the petitioner had filed the present Review Application No. 70 of 2020, which was reported by the Registry to be suffering from delay of one day; and the Delay Condonation Application No. 1304 of 2010, was filed along with it seeking condonation of one day's delay. Since, the delay, not being inordinate, and was not being seriously opposed by the respondents, the same would stand condoned.

9. In the proceedings of the contempt, which was held on 17.02.2020, the following observation was made, as to whether at all the review is maintainable, in a contempt jurisdiction under Section 12 of the Act:

"An issue, which creeps in while considering the review application filed by the petitioner is as to whether at all the review itself is maintainable in a contempt jurisdiction, to which the learned 5 brief holder may file his objection to the review application as well as the delay condonation application filed in support thereto."

10. Learned counsel for the review applicant had submitted and has extended his argument from the view point that since as per the provisions contained under Section 12/14 of the Contempt of Courts Act, it's a power, which has been vested with the contempt courts to draw the proceedings itself too, for non-compliance of its judgment, or the judgments passed by the Courts, the court thus would be exercising its inherent power for drawing the contempt proceedings as against the alleged contemnors for non-compliance of its judgment and, hence, the tenacity of the argument of the learned counsel for the petitioner is that in view of the aforesaid provisions and the interpretation given to Sections 12 and 14 of the Act, is as if since the Court was exercising its inherent suo moto powers of drawing the contempt and if that be the concept contemplated under Section 12, in that eventuality, the review would be maintainable.

11. If the provisions contained under Section 12, under which the present contempt petition has been filed by the applicant under the Act of 1971, it deals with the drawing of a proceeding under the said Act, which happens to be special in nature, contemplating the process of imposing a punishment as expressed therein under Section 12, in such an eventuality, the invocation of the provisions contained under Section 12, by way of filing a contempt petition cannot be stretched to an extent that once it is initiated on an application filed by the applicant or any individual under Section 12, it would be stretched to be interpreted, as to be a suo moto proceedings drawn by the Court itself on its own, without anyone approaching to it under Section 12 of the Act. Hence, the argument extended by the learned counsel for the applicant that the proceedings under Section 12 of the Contempt of Courts Act, can be read in paralance to a suo moto proceedings being drawn by the High Court on its own, is not acceptable by this Court because if that be the situation, if the power of suo moto proceedings being drawn under Section 12, is taken into consideration by the Courts then there was no necessity for the legislature to incorporate 6 Section 14, as well as Section 20 of the Contempt of Courts Act, which deals with the aspect of limitation of drawing the proceedings, which creates an absolute bar that even the courts, who are competent to draw the suo moto proceedings under Section 12, cannot even initiate the proceedings of contempt beyond the period of limitation, i.e. one year as proceedings therein. Meaning thereby, that even the suo moto exercise of powers by the Courts under Section 12, is not independent to the restrictions imposed of limitation under Section 20. Its applicability over Section 12, is not exempted or excluded, hence, argument is not accepted.

12. If the rationale and intention of Section 20, itself is taken into consideration, where the legislature has created an absolute restriction for the courts itself, from drawing or even initiating the proceedings for contempt, beyond one year, from date when the contempt is committed, that in itself would infer that the proceedings of the contempt, as it is in the present case under Section 12 of the Contempt of Courts Act, was being initiated on a specific application preferred by the applicant and it was not in an inherent or a suo moto jurisdiction, which was exercised by the High Court on its own, for drawing the contempt proceedings under Section 12 of the Act and, hence, for the aforesaid reason, the arguments that the contempt proceedings under Section 12, could be taken as to be an inherent proceeding or a suo moto proceedings is absolutely untenable in view of the provisions contained under Section 14 to be read with Section 20 of the Contempt of Courts Act, that in itself, will make Section 12 subject to Section 20 of the Act, as to be the proceedings, which are drawn at the behest of the individual applicant himself alleging its non-compliance of the judgment and, hence, it cannot be taken in paralance to be a contempt proceeding, which has been initiated in the exercise of inherent jurisdiction, which too as per opinion of this Court is restricted by the provisions contained under Section 20 of the Act, even suo moto exercise of power under Section 12, by Courts is governed and restricted by Section 20 of the Act.

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13. In that view of the matter since the Court seized with the jurisdiction under Section 12, which was invoked by the applicant himself by filing an application for drawing a contempt having been held that it was not in an exercise of inherent or a suo moto cognizance being taken by the Court, coupled with the fact that since the Act itself being a special Act and independent to the powers contained under Article 215 of the Constitution of India. Since, the Act itself does not contemplate the power of review, which is a creation of statute, this Court is of the confirmed view that in a proceeding drawn under Section 12 of the Contempt of Courts Act, 1971, it cannot be treated as to be an inherent proceeding drawn by the Court to make the review maintainable. Hence, since the statute itself, which is special in nature does not confer the power of review to the Contempt Courts created under the Act of 1971, this Court is of the view that the review would not be maintainable, for the reason being, that the power of review is a statutory power granted to the Courts created under an Act, which is created under legislature and if it is not mandated by law, it cannot be exercised by the Courts of reviewing its own judgment in the absence of the legislative competence vested in it.

14. Learned counsel for the applicant had supported his argument in the light of certain judgments, which he wanted to place reliance, he attempted to argue that a review in a proceeding of contempt under Section 12 would too be maintainable. The said argument has been extended in the light of the judgment on which he has placed reliance, which are enlisted below:

(i) 1995 CrilJ 3830 A Mayilswami vs. State of Kerala and Others. 
            (ii)    2000 (1) SCC 666 M.M. Thomas vs. State of
            Kerala and Others.
(iii) The judgment of the Andhra Pradesh High Court rendered in Contempt Case No. 965 of 2013 'T. Madan Mohan Reddy and Others vs. The Principal Secretary to Revenue.
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15. This Court would be independently dealing with each and every case as sought to be relied by the learned counsel for the petitioner in support of his contention; as raised by him to contend that his review would be maintainable. The first case as referred therein, which is the full Bench judgment of the Kerala High Court. The petitioner has drawn the attention of this Court to the entire judgment and, particularly, we may have a reference to the reasoning given in the said judgment contained in paragraph 1 and 2, which are quoted hereunder:

"1. The question that arises for consideration is whether the decision in Rajan Nair v. Mohan, (1993) 1 Ker LT 782 requires reconsideration. In the above decision a Division Bench of this Court held that the action initiated by directing issue of notice to the contemner should be within a period of one year from the date of the alleged contempt. The Division Bench held that if the court has not initiated proceedings by passing some order within a period of one year from the date of the alleged act of contempt the bar contained in Section 20 of the Contempt of Courts Act, 1971 comes into operation. The court held that on a reading of Section 20 of the Contempt of Courts Act it is clear that it places absolute fetter on the power of the High Court to initiate proceedings for contempt after the expiration of the period of one year from the date on which the contempt is alleged to have been committed.
2. In the above decision N. Venkataramanappa v. D. K. Kaikar, AIR 1978 Karnataka 57 was relied. In that decision Karnataka High Court held that Section 20 of the Contempt of Courts Act operates as an absolute bar to initiation of contempt proceeding whether suo motu or at the instance of complainant after expiry of one year's limitation, starting point of limitation being the date on which contempt is alleged to have been committed and not date of knowledge of complainant. That decision was overruled by the Full Bench of that Court in M/s. A. V. Kowdi & Co. v. R. V. Lakshmtdevamma ILR (1990) Karnataka 4355. The Court held that the period of one year prescribed in Section 20 of the Contempt of Courts Act is applicable only in respect of contempt of subordinate courts and it has no application in cases of contempt of High Court and that the power conferred under Article 215 of the Constitution of India is absolute and unfettered. In Pritam Pal v. High Court of M.P, the Supreme Court held that the power of the Supreme Court and the High Court being the Courts of Record as embodied under Articles 129 and 215 respectively cannot be restricted and trammelled by any ordinary legislation including the provisions of the Contempt of Courts Act. The Supreme Court further observed that the inherent power of the Supreme Court and the High Court is elastic, unfettered 9 and not subjected to any limit. As the power conferred upon the Supreme Court and the High Court being Courts of Record under Arts. 129 and 215 of the Constitution respectively is an inherent power and as the jurisdiction vested in these courts is a special one not derived from any other statute but from the aforesaid Articles of the Constitution of India, such power cannot be either abridged by any legislation or abrogated or cut down. The Supreme Court has expounded the position in explicit terms."

16. In the said case, the Full Bench of Kerala High Court after having gone into the said judgment of Kerala High Court was dealing with an issue, which was raised on a reference made to it in relation to Section 20 of the Act in a decision reported in 1993(1) KLT 782, which was referred to be reconsidered by framing the following question in the following fashion, which was sought to be answered by the Full Bench, the question was: "Section 20 cannot make any in road into the powers vested in the High Court under Article 215 of the Constitution of India." The period mentioned in Section 20 cannot be made applicable in cases of contempt of the High Court, which are drawn under Article 215 of the Constitution of India because it gives a supreme position to the High Court and Supreme Court, as compared to the lower courts. After having meticulously gone through the judgment of the Full Bench of Kerala High Court, it was a case where the issue, which was raised and dealt before the Kerala High Court was as to whether the principles, which are enunciated under Section 20 of the Contempt of Courts Act, could be extracted and made applicable by barging into the proceedings drawn by the High Courts under Article 215 of the Constitution of India for drawing the contempt proceedings. Before venturing further, it would be relevant to make a reference to the Article 215 of the Constitution of India, which reads as under:

"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 contempt of itself."

17. On a simplicitor reading, the interpretation of Article 215 would be that since the High Courts have been held as to be a Court of records under Article 129 of the Constitution of India, hence, an 10 inherent power has been given to the High Courts, which will be including the power to punish "itself" for contempt. It was this issue, which was raised before the Full Bench of Kerala High Court, wherein, the interpretation given in the said judgment of A. Mayilswami (supra), was that the court has held that since the High Courts being a creation of Constitution and being a Court of record and having been vested with its inherent power under Article 215 of the Constitution of India, for drawing contempt itself, the provisions of Section 20 cannot be extracted to be made applicable over the proceedings, which are drawn by High Courts under Article 215 of the Constitution of India because it has held that the powers given under Article 215 of the Constitution of India is absolute plenary and unfetter and, hence, the bar of Section 20 of the Contempt of Courts Act, 1971, would not be borrowed to be attracted, once it is drawn in its exercise of powers of contempt under Article 215 of the Constitution of India. Hence, accordingly, the answer was given in paragraph-5 of the judgment by the Full Bench in the following manner:

"5. In view of the decision of the Supreme Court it is not possible for us to hold that the period of one year mentioned in Section 20 of the Contempt of Courts Act is applicable to a case where contempt proceeding is initiated by the High Court for having disobeyed or not complied with its order. As the power conferred on the High Court under Article 215 of the Constitution of India is absolute and unfettered it cannot be said that the time limit specified in Section would apply and the proceeding before this court is barred by limitation."

18. The reliance, which has been placed by the learned counsel for the petitioner on the said judgment was with regards to the inher inherent suo moto power exercised by the High Court under Article 215 of the Constitution of India, since the exercise of powers therein being inherent, once the Full Bench has held that Section 20 of the Contempt of Courts Act would not be applicable, where High Court exercises powers under Article 215 of the Constitution, he attempts to infer that the said principle of being the Court of record, the said principle of exercising the inherent power of contempt, which was settled vis-à-vis the provisions contained under Article 215, the same could be attracted in paralance to the proceedings under Section 11 12 of the Contempt of Courts Act, which too has to be read as if it was being exercised by the Court of record in the exercise of inherent jurisdiction, is absolutely preposterous arguments, which is not accepted by this Court, hence, declined to be accepted because High Court powers under Section 12 of the Contempt of Courts Act of 1971, is absolutely independent under a special statute, as is not an equivalent powers of the High Court under Article 215 of the Constitution of India.

19. This Court is not agreeing with the tenacity of the argument as extended by the learned counsel for the applicant. That the exercise of powers under Article 215, for drawing the contempt proceedings by the exercise of inherent power by the High Court as a Court of record under Article 129 of the Constitution of India, is entirely different and distinct to the powers of initiation of a proceeding of contempt under Section 12 of the Contempt of Courts Act and that on an application filed beyond the period under Section 20 of the Act. Hence, the said principle and analogy, which has been laid down, has to be rationally interpreted and not to be made applicable to the proceedings under Section 12 when it has germinated under a special act, giving a limited power, which is governed by the procedures governing it provided under the Act. Hence, the decision taken thereof in the absence of the proceedings being a suo moto proceeding drawn by the High Court, it cannot be treated as to be an inherent exercise jurisdiction of the High Court, in order attract the same principles as it would have been made applicable to the plenary powers of the High Court under Article 215 of the Constitution of India so as to exclude the applicability of Section 20 of the Act. Hence, this argument is not accepted by this Court and is turned down.

20. The another judgment, which has been relied, is as reported in 2000 (1) SCC 666 'M.M. Thomas vs. State of Kerala and Another' on which the reliance has been placed by the learned counsel for the petitioner, particularly, he has drawn the attention of 12 this Court to paragraphs 12, 14 and 17 of the said judgment, which is quoted hereunder:

"12. It is true that the application for review did not mention that there was any concession made by the Government counsel. Hence there is force in the contention that review could not be made on that premise. So far as Forest Tribunal is concerned its power of review can be traced to Section 8C. Unless law has conferred power of review the inferior courts and tribunals cannot exercise any such power of review. So the Forest Tribunal can exercise power of review in conformity with Section 8C of the Act.
14. High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes 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 records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr, [1966] 3 SCR 744= AIR (1967) SC 1 a nine Judge Bench of this Court has recognised the aforesaid superior statue of the High Court as a court of plenary jurisdiction being a Court of Record.
17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down, Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record."

21. In this judgment too, the Hon'ble Apex Court, was yet again dealing with an aspect about the exercise of power of review vested with the High Court in the proceedings, which has been drawn by it itself, under Article 215 of the Constitution of India for drawing the contempt proceedings, it was not with regards to contempt under the Act of 1971. If the principles dealt therein is read in relation to the reasoning given in paragraph 14 of the said judgment, it has held that since the High Court exercising powers under Article 215, being power superior to the powers then vested with Courts under Section 12 of the Contempt of Courts Act, and since as it was drawing and determining the scope of its own jurisdiction of drawing the contempt and since it was vested with the power to keep all its records correct and in accordance with law, the court when it was seized with the 13 jurisdiction under Article 215, has been held can exercise the powers of review when there is an apparent error on the face of record. It was based on the principle of powers vested with constitutional courts, exercising power under the Constitution and not the power, which is being exercised by the courts created under the Constitution by way of conducting the proceedings under an Act. Hence, even then too, High Court would be governed by the restrictions of the Act.

22. Another rationale, which has been laid down by the Hon'ble Apex Court under the backdrop was that if the said power is not vested with the superior courts, having a special constitutional status of correcting its own error, it may lead to venturing into or laying down an error on record to perpetuate and, hence, the said power of review has been held that since being in the exercise of inherent powers under Article 215 by the superior court of records under Article 129 of the Constitution of India, it could be exercised by the High Courts to correct its apparent mistake on record. The said judgment, which was dealing with the case, which was arising out of the Kerala Private Forests (Vesting and Assignment) Act of 1971, in respect of an area, which was brought under the cultivation prior to the appointed date as per the said Act, the Court in the said case has held that the power of review can be traced in the circumstances of that particular case where the power was traced from the provisions contained under Section 8C of the Kerala Private Forest (Vesting and Assignment) Act, 1971, rather to the contrary paragraph 21 of the said judgment has held that unless the law has conferred the power of review, the inferior courts, the tribunal courts, cannot exercise any such power of review in the absence of same being vested to it. Thus, the benefit, which has been sought to be extracted by the petitioner from the said judgment of M.M. Thomas (supra), it was under altogether a different principle under which it was rendered while dealing with the powers of review vis-à- vis powers conferred under Article 215 of the Constitution of India with the High Courts and as already observed that the said power of review vested with the High Court was only confined and limited to the contempt proceedings drawn under Article 215 of the Constitution of India and it was not in relation to the proceedings drawn by the 14 applicant under Section 12 of the Contempt of Courts Act and, hence, the said principle of the judgment on which the learned counsel for the applicant has sought to place reliance will not be applicable and is of no avail to the petitioner.

23. Lastly, the learned counsel for the petitioner had made reference to the judgment rendered by the High Court of judicature at Hyderabad in 'T. Madan Mohan Reddy and Others vs. The Principal Secretary to Revenue', and particularly, he has made reference to page 7, 8 and 9 of the said judgment, which is quoted hereunder:

"He would contend that the Act of 1971 does not confer the power of review and therefore, this Court cannot assume unto itself such power when the Act of 1971 is silent on this aspect. Learned Advocate General would submit that Article 215 of the Constitution provides that the High Court shall have the power to punish for contempt of itself but the exercise of such power should be governed by the Act of 1971, and once the said enactment does not speak of the power of review, such power cannot be taken for granted. He would rely upon the observations of the Supreme Court in PALLAV SHETH V/s. CUSTODIAN1 to the effect that, though the power of the High Court under Article 215 of the Constitution could not be abrogated or stultified, it would have to be exercised in compliance with the provisions of the validly enacted law, the Act of 1971. He would also place reliance on DIRECTOR OF EDUCATION, UTTARANCHAL V/s. VED PRAKASH JOSHI2, wherein the Supreme Court observed thus:
7. While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari v. Union of India ((2001) 10 SCC 496). The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable.

Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application 15 for contempt, the court cannot traverse beyond the order, non- compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.

Learned Advocate General would point out that a Division Bench of the Allahabad High Court had occasion to deal with the maintainability of a review petition in a contempt case in STATE V/s. BALDEV RAJ, ADVOCATE3. Therein, the Allahabad High Court held that the Act of 1971 not only defines civil and criminal contempt but also lays down the procedure and as it does not confer inherent power of recall or review, the power of the High Court to recall or review in matters of contempt cannot be invoked. Similar view taken by a Division Bench of the Kerala High Court in ANTONY V/s. P.S.RANA4 is also pressed into service. The Kerala High Court observed therein that review is a substantive law and the power of review has to be specifically conferred. Noting that the Act of 1971 does not confer such power, the Kerala High Court held that it found no power of review conferred on the High Court in exercise of contempt jurisdiction. Learned Advocate General would point out that in D.N.TANEJA V/s. BHAJAN LAL5, the Supreme Court observed that the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution but an appeal would lie under Section 19 of the Act of 1971 only when the High Court exercises its jurisdiction or power, as conferred on it by Article 215 of the Constitution, and imposes punishment for contempt. Learned Advocate General would contend that as appellate power, in the context of contempt jurisdiction, is limited by Section 19 of the Act of 1971 the power of review, which is not even spelt out in the Act of 1971, cannot be automatically assumed."

24. The said case was emanating from the proceedings of Right to Fair Compensation and Transparency of Land Acquisition Rehabilitation and Resettlement Act of 2013. In the said case the contempt case was assigned to the Division Bench by the administrative orders passed by Hon'ble the Chief Justice and under the said power granted by the Chief Justice, the contempt case was disposed of vide judgment dated 12.11.2014 therein.

25. The Court held and while dealing with the larger question was in the perspective of the provisions contained with regards to the 16 power of review under Article 47 Rule 1 to be read with Section 114 of the CPC vis-à-vis its power as contained under the Contempt of Courts Act of 1971. The Court thus framed a question to be considered therein as to whether the Contempt Court can exercise the power of review of its order in contempt cases and has power to add something more to the power granted under law, and to the order in the exercise of power of review.

26. In principle, the said concept that the Contempt Act of 1971, does not confer the power of review, hence, the court cannot assume into itself the power when the Act itself is silent and the same cannot be kept on a same and on a common pedestal, as that of the powers of contempt vested under Article 215 of the Constitution of India. Hence, it was held that once the Act does not speak about the grant of the power of review, the same cannot be granted or can be taken to have been granted to it. Even otherwise also, if the principle laid down in 2001 (10) SCC 496 ' K.G. Derasari v. Union of India' is taken into consideration, it has laid down that the court exercising the contempt jurisdiction is primarily concerned with the contemptuous act only and the contempt court cannot take up upon itself and decide the original proceedings in a manner as if it was exercising the inherent powers. The following observation was made in the said judgment:

"The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non- compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings.
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The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside."

27. This aspect as to whether the Court can exercise an inherent power of revision even by invoking the provisions contained under Order 47 Rule 1 to be read with Section 114 of C.P.C., the Hon'ble Apex Court had an occasion to deal with the said aspect and, particularly, in a judgment as reported in AIR 1970 SC 1273 'Patel Narshi Thakershi and Others vs. Pradyumansinghji Arjunsinghji' in its paragraph-4 has recorded the following reasonings and it has been held that the power of review is not an inherent power, which could be exercised by borrowing it from other legislation. The power of review has had to be dealt with to be vested with the courts only when the court is exercising the powers under a particular statute and that particular statute itself contemplates to grant a power of review. If the statute is silent on granting the power of review, there could not be an exercise of inherent power to review its own judgment:

"4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was Liable to be set aside."

28. The High Court, which is created under the Constitution of India, and the judges, which constitutes it, they sit in various jurisdiction as assigned to them by the roster regulated by the Chief Justice. A Judge sitting under Article 226 of the Constitution of India or exercising any constitutional forum for dealing with the controversy, could always exercise a power of drawing the contempt 18 under Article 215 being the Court of record under Article 129 and it is under that eventuality only the Court can exercise an inherent power of review, being a superior constitutional court, which has got an ambit of power to rectify its own mistakes. In those circumstances where the High Court Judge sitting under Article 226 or 227 exercises the power of contempt under Article 215, the same cannot be eclipsed by the provisions contained under Section 20 of the Contempt of Courts Act dealing with the limitation. Hence, there the High Court Judge when sitting under Article 226 or 227 can exercise an inherent power to review its judgment to rectify the mistakes.

29. But, there would be converse situation where the same Judge of High Court when sitting in an appeallate jurisdiction, may it be on a criminal or the civil side, in tax matters, in a contempt jurisdiction, where despite being the High Court Judge, is seized with its limited jurisdiction, which is being regulated by the special statute under which the powers have been conferred to a High Court Judge to deal with a case assigned before, it including the contempt courts, which are regulated by the Contempt of Courts Act, 1971. May be that he is a High Court Judge, who is passing an order, but we cannot be oblivious of the fact that the High Court Judge, at that point of time when he passes an order, is passing an order while exercising its powers under the Contempt of Courts Act, 1971, and hence, in such a situation, the Court will not have the power to review its judgment, once it is not contemplated under the Act and the exercise of inherent power is not available to it.

30. The identical view has been quite elaborately dealt in a judgment 'Smt. Shivraji and Others. Vs. Dy. Director of Consolidation, Allahabad and Others', which has been reported in 1997 (31) ALR 681, where the Full Bench of Allahabad High Court had dealt with this aspect of exercise of the power of review. In paragraph-35, which is quoted hereunder, has almost reiterated the ratio laid down by the Hon'ble Apex Court, that in the absence of their being statutorily power vested with an authority, there could not be an exercise of power of review of its previous order:

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"35. Any tribunal ex exercising judicial or quasi judicial power, which is not vested with power of review under the statute expressly or by necessary implication, has an inherent power of review of its previous order in any cir circumstances. In our view the decisions only lay down the proposition that a tribunal exercising judicial or quasi judicial power has the inherent power to correct a clerical mistake or arithmetical error in its order and has the power to review an order which has been obtained by practicing fraud on the court, provided that injustice has been perpetrated on a party by such order. Therefore, these decisions should not be construed as laying down any proposition of law contrary to the well-settled principle of law that any order delivered and signed by a judicial or quasi-judicial authority attains finality subject to appeal or revision as provided under the Act and if the authority passing the order is not specifically vested with power of review under the statute, it cannot re-open the proceeding and review/revise its previous order."

31. The said preposition as has been laid down has to be visualize from another perspective that an inherent power of punishment for the contempt of its order under Article 215, which is being vested with the court of record, it contemplates that no act of parliament can take away the inherent power, which has been vested with the courts of record under Article 129 of the Constitution of India. Hence, since the High Court being the superior court having inherent and perennial powers vested in it, would have a power of review to correct any error apparent on its record including the errors of orders passed on its judicial side and, the logic behind it is that, that such plenary power given to the High Court under Article 215, cannot be reduced or abridged, as per the provisions of Contempt of Courts Act, 1971, which does not mean to confer the power of review. Hence, in principle, the said judgment had held that the Contempt of Courts Act of 1971, does not give a power of review to the Courts created or competent to deal with the contempt under Section 12 of the said Act and, hence, I am of the view that the said preposition cannot be drawn to be made applicable even to the High Court to the Courts under the Contempt of Courts Act when its exercising power under the Act, and it cannot be read in equivalence to the power of the contempt under Article 215 of the Constitution of India.

32. Hence, for the reasons aforesaid, I hereby hold that since the Contempt of Courts Act, 1971, being a special statute regulating 20 its inbuild procedure, by the inbuild mechanism attracting the provisions contained under Section 20 and in the absence of there being any power vested of reviewing its order passed under the Contempt of Courts Act, whenever the Judge of the High Court is seized with the jurisdiction under the Contempt of Courts Act of 1971, he will not have the power to review its judgment, in the absence of the same being statutory created under the Act. The inherent plenary power given to the High Court under Article 215 of the Constitution of India being superior court of records, its the power, which is inherent in nature, cannot be abridged by the provisions of the contempt of courts Act and the Judges seized with the proceedings of contempt drawn by itself under Article 215 of the Constitution of India, their procedure would not be regulated or governed by the provisions of the Contempt of Courts Act and they can exercise their inherent power of reviewing a judgment, unlike the power of review, which is not vested under the Contempt of Courts Act.

33. In the present case, since the High Court, was exercising its powers under Section 12 of the Contempt of Courts Act and not under Article 215 of the Constitution of India, as a court of record, being a superior court, the review would not be maintainable. Hence, the review application lacks merit and the same is dismissed accordingly.

(Sharad Kumar Sharma, J.) 20.08.2020 Pooja