TATA IRON AND STEEL CO. LTD. v. RAMNIWAS — 1988 DIGILAW 441 (CAL)

PRATIBHA BONNERJEA, J. ( 1 ) THE respondent 1 Ramniwas Poddar and the respondent 2 Keshar Dev Sharaf carry on business under the name and style of Poddar and Sharaf, the respondent 3 herein and are the owners of the premises No. 1 Belvedere Road, Calcutta (hereinafter referred to as the "said premises" ). ( 2 ) UNDER a scheme of amalgamation duly approved by this Court as well as by the Bombay High Court, the Indian Tube Company Limited was amalgamated with the petitioner as a result whereof all the assets and liabilities, rights and obligations of the Indian Tube Company Ltd. were taken over by the petitioner and the same stood transferred, merged and vested in the petitioner. ( 3 ) THE Indian Tube Company had entered into four agreements with Poddar and Sharof, the respondent 3 herein, for purchasing four flats in the said premises being Flats Nos. 5e, 9e, 12a and 14a. These agreements contained arbitration clauses for resolving the disputes arising out of these contracts. Subsequently, disputes and differences arose between the parties and the respondents 1 to 3 tried to wriggle out of the said contracts. It is alleged that the Indian Tube Company was always ready and willing to perform its part of the said contracts. Under the circumstances, Indian Tube Company took out four applications under S. 20 of the Arbitration Act, being Special Suit Nos. 30, 32, 33 and 34 of 1980. The Special Suit No. 33 of 1980 related to the agreement for purpose of the Flat No. 12a mentioned above. Immediately thereafter, four applications under S. 41 of the Arbitration Act were taken out for appointment of Receivers over these flats and for other orders. By an ad interim order dated 12-5-80, Salil K. Roy Chowdhury, J. (as he then was) restrained the respondents 1, 2 and 3, their agents and assignees from transferring, assigning, alienating, disposing of, letting out or dealing with the said flats concerned in any manner whatsoever until further orders. All these applications were pending when the petitioner was amalgamated with Indian Tube Company and, as such, the petitioner is entitled to continue these proceedings. The respondents do not dispute these facts. All these applications were pending when the petitioner was amalgamated with Indian Tube Company and, as such, the petitioner is entitled to continue these proceedings. The respondents do not dispute these facts. ( 4 ) TWO orders were passed by Deb, J. (as he then was) subsequently on 22-6-82 and 23-6-82 w hereby a Special Officer was appointed with directions, inter alia, to inspect the four flats and the counsel for the respondent 1 appearing before Justice Deb assured the Court to render all assistance to the Special Officer. The Special Officer submitted his two reports both dt. 28-6-82 recording that flat No. 5e was occupied by Damodar Valley Corporation, Flat No. 9e was incomplete and lying vacant, the Flat No. 12a (which was to be on the 12th floor) and the Flat No. 14a (which was to be on the 14th floor) were incomplete as both the floors were under construction. No one was in actual occupation of the Flats Nos. 12a and 14a. These reports are Annexures-'b' and 'c' to the present petition. It also appears from the Annexures to this petition that Mr. R. L. Gaggar, Advocate on record of Indian Tube Co. Ltd. , informed the respondents 1, 2 and 3 about the order of injunction dated 12-5-80 by his letter dt. 12-6-80 and to the respondents 4 and 5 herein by his letter dt. 18-7-80. The said four special suits appeared in my list on 10-1-85 and an order was made as follows :-"by consent of the parties, interim orders passed in all the matters shall continue until further order of this Court. Cost cost in the arbitration proceeding. " ( 5 ) IT is alleged in para 18 of the present petition that on 28-5-1987 one of the representatives of the petitioner went to inspect the condition of the said premises and found that Flat No. 12a, the subject-matter of the Special Suit No. 33 of 1980, was in occupation of one Peria Malai Tea and Rubber Co. , the respondent 6 herein. It is the petitioner's case that the respondents have committed contempt of Court by allowing the respondent 6 to occupy the said flat in contumacious disregard to the Court's order dt. 10-1-85. , the respondent 6 herein. It is the petitioner's case that the respondents have committed contempt of Court by allowing the respondent 6 to occupy the said flat in contumacious disregard to the Court's order dt. 10-1-85. ( 6 ) THE respondents I and 2 filed a joint affidavit in opposition alleging that when the ad interim order was passed on 12-5-80 the building had been completed up to the 5th floor only. It is further alleged that on 22-4-80 the respondents 1 and 2 had entered into an agreement with one Continental Consultants (P.) Ltd. for construction of the rest of the unfinished portion of the said building on terms and conditions contained in the said contract. Continental Consultants subsequently assigned their rights under the contract dated 22-4-80 to one Hanuman Industries (P.) Ltd. pursuant to the terms of the said agreement. There was no violation of the said ad interim order by the respondents 1 and 2 as the flat No. 12a was let out or sold by Hanuman Industries (P.) Ltd. It appears from the petitioner's letters dt. 18-7-80 and 5-8-80 being part of Annexure-'d' to the present petition, that the petitioner was aware of the aforesaid transactions between the respondents 1 to 3 and the said Continental Consultants Pvt. Ltd. as well as Hanuman Industries India Pvt. Ltd. It is also contended by the respondents 1 and 2 that the said order dated 10-1-85 being a consent order, its violation, if any, does not amount to contempt of Court. Another plea has been taken by these respondents in paragraph 19 of this affidavit that the application is barred by limitation. ( 7 ) THE respondent 5, who is a close relation of the respondents 1 and 2 and employed by the Hanuman Industries (P.) Ltd. , filed a separate affidavit in opposition admitting that Hanuman Industries sold the flat No. 12a on 21-7-84 to one Thirumbadi Rubber Co. Ltd. and possession of the said flat was delivered on 21-11-84. His case is that he is a stranger to the Special Suit No. 33 of 1980 and as such is not bound by the said order. It is difficult to accept his sub mission. The order dt. 12-5-80 was passed against not only the respondents 1 and 2 but also against their agents, servants, assignees as well. His case is that he is a stranger to the Special Suit No. 33 of 1980 and as such is not bound by the said order. It is difficult to accept his sub mission. The order dt. 12-5-80 was passed against not only the respondents 1 and 2 but also against their agents, servants, assignees as well. The alleged agreement between the respondents 1 and 2 and the Continental Consultants was nothing but an assignment of the right of construction of the said building. Hanuman Industries got the assignment of all the rights under the said contract by virtue of an express clause contained in the said contract. As a result, Hanuman Industries stepped into the shoes of Continental Consultants and was bound by the said ad interim order dt. 12-5-80. The respondent 5 has also taken the plea that the order dt. 10-1-85 being a consent order, its violation, if any, does not amount to contempt of Court. He has also pleaded in para 4 (d) that the present application was taken out on 24-6-87, nearly two years and seven months from the date when possession of the Flat No. 12a was delivered to Thirumbadi Rubber Co. Ltd. on 21-11-84. This application is hit by the provisions of S. 20 of the Contempt of Courts Act. 1971. ( 8 ) THE respondent 4 Arun Kumar Poddar, in his affidavit in opposition, alleged that when the Flat No. 12a was sold to the respondent 6, he was not the director of Hanuman Industries (India) Private Ltd. as he had resigned before 10-11-80. He has no knowledge of the alleged acts of contempt. The respondent 4 has also taken the plea of limitation. ( 9 ) IN the affidavit in reply filed through the petitioners principal officer A. K. Bhaduri, the petitioner specifically alleged that the respondent 4 has full knowledge of the act of contempt as would be evident from Annexure-'a' to this affidavit in reply. He has also expressly taken the point in his affidavit in reply that S. 20 of the Contempt of Courts Act, 1971 is ultra vires as it overrides and Art offends against the provisions of Art. 215 of the Constitution. ( 10 ) ON behalf of the respondents 1 to 5, Mr. He has also expressly taken the point in his affidavit in reply that S. 20 of the Contempt of Courts Act, 1971 is ultra vires as it overrides and Art offends against the provisions of Art. 215 of the Constitution. ( 10 ) ON behalf of the respondents 1 to 5, Mr. Tapas Banerjee appeared and he strongly argued that under the provisions of S. 20 of the Contempt of Courts Act 1971, the contempt proceeding must be 'initiated' within one year from the date of the alleged act of contempt. The petitioner has alleged that on 28-5-87 the petitioner noticed that Flat No. 12a was in possession of the respondent 6. The date when the flat was handed over and/or the alleged act of contempt was committed has not been mentioned in the petition. Section 20 of the Contempt of Courts Act, 1971 provides as follows :-"no Court shall initiate any proceedings for contempt on its own motion or otherwise after expiry of a period of one year from the date on which the contempt is alleged to have been committed. " ( 11 ) THE date of knowledge of the alleged act of contempt is irrelevant and immaterial for the purpose of initiating contempt proceeding. On this point, he relied on AIR 1978 Kar 57 (N. Venkataramanappa v. D. K. Naikar) where the Division Bench of that Court held in para 5 :-"having regard to the clear language employed in S. 20 of the Act,. . . . . . . . . it is impossible to take the view that the date of knowledge of the complaint has any relevance for the purpose of computing the period of limitation. " ( 12 ) IN view of the fact that the main defence taken by all the respondents is limitation u/s. 20 of 1971 Act, the vires of which has been expressly challenged by the petitioner, on 23-3-88 I directed the petitioner to serve a notice on the Attorney General of India. Pursuant to that notice, Mr. A. K. Ganguly, Senior Advocate appeared on behalf of the Attorney General of India with Mr. Gungwani. ( 13 ) MR. Somenath Chatterjee appearing for the petitioner submitted that under Arts. 129 and 215 of the Constitution the Supreme Court of India and the High Courts of India respectively have been given the status of Courts of record. A. K. Ganguly, Senior Advocate appeared on behalf of the Attorney General of India with Mr. Gungwani. ( 13 ) MR. Somenath Chatterjee appearing for the petitioner submitted that under Arts. 129 and 215 of the Constitution the Supreme Court of India and the High Courts of India respectively have been given the status of Courts of record. The said provisions are as follows :- article 129 :-"the Supreme 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. "similarly, Art. 215 of the Constitution provides :-"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 Court. " ( 14 ) THE word 'power' in both the aforesaid Articles obviously refers to all the jurisdiction the including the inherent special jurisdiction of the Courts of record to punish for contempt of itself. He pointed out that the meaning of "court of Record" has not been defined in the Constitution nor in the General Clauses Act. But Halsbury's Laws of England has described what it means :-"whether a Court is a Court of Record or not depends on where it has power to fine and imprison, whether for contempt of itself or for other substantive offences. Courts of Record are such as have been made so by statute or by implication of a statute, that is, by having statutory power to fine and imprison, and Courts of Record of Common Law. The proceedings of a Court of Record preserved in its archieves are called records and are conclusive evidence of that which is recorded therein. " ( 15 ) AS a matter of fact, Sir Barnes Peacock in (1884) ILR 10 Cal 109 (Surendra Nath v. Chief Justice and other Judges of the High Court of Bengal) defined the status and powers of a Court of Record in India and observed :"contempt of Court by libel published out of Court is something more than defamation. " ( 15 ) AS a matter of fact, Sir Barnes Peacock in (1884) ILR 10 Cal 109 (Surendra Nath v. Chief Justice and other Judges of the High Court of Bengal) defined the status and powers of a Court of Record in India and observed :"contempt of Court by libel published out of Court is something more than defamation. It is an offence which by the Common Law of England was punishable by the High Court in a summary manner with fine or imprisonment or both, for a part of the Common Law of England was introduced in the Presidency towns when the Supreme Courts were respectively established by the Courts of Justice. High Courts in the Presidencies are superior Courts of Records and the offences of contempt and the powers of the High Courts for punishing it are same in India as in England, not by virtue of the Indian Penal Code or the Criminal Procedure Code but by virtue of the Common Law of England. " ( 16 ) CLAUSE 2 of the Letters patent for the High Courts of Calcutta, Bombay and Madras dt. 28-12-1865 while revoking the Letters Patent of 1862 expressly provided :". . . . . . . . that the said Court shall be and continue as a Court of Record. " ( 17 ) HE submitted that all the powers possessed by the Chartered High Courts before the Constitution came into force were preserved, recognised and confirmed by Art. 215 of the Constitution. These powers can neither be curtailed nor can be taken away or restricted by the Parliament or by the State Legislature. In support of his contention, he strongly relied on AIR 1954 SC 186 (Sukhdeo Singh v. Hon'ble C. J. Teja Singh and the Hon'ble Judges of the High Court of Pepsu) where the Full Bench consisting of B. K. Mukherjee, Bose Bhagwati JJ. expressly held that the power of a High Court to initiate proceedings for contempt and punish, where necessary, is a special jurisdiction which is inherent in all Courts of Record. Whether this is a fresh conferral of power or a continuation of existing powers hardly matters because whichever way it is viewed the jurisdiction is a special one. expressly held that the power of a High Court to initiate proceedings for contempt and punish, where necessary, is a special jurisdiction which is inherent in all Courts of Record. Whether this is a fresh conferral of power or a continuation of existing powers hardly matters because whichever way it is viewed the jurisdiction is a special one. It was further held in para 23 :-"in any case, so far as Contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no Act of a Legislature could take away that jurisdiction and practice. " ( 18 ) IN AIR 1964 SC 1625 (Mohd. Ikram Hussain v. State of Uttar Pradesh), a Bench consisting of two Judges held in paragraph 11 as follows :-"the High Court's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record. . . . . . . . . The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act which limits the terms for which a person can be imprisoned to six months' simple imprisonment. " ( 19 ) ON behalf of the petitioner it is contended that Sukhdeo Singh's case ( AIR 1954 SC 186 ) was not considered in AIR 1964 SC 1625 where it has been specifically held that no Act of Legislature can take away the Court of Record's jurisdiction or practice to punish for itself. According to the petitioner, the decision in Sukhdeo's case was delivered by a larger Bench consisting of three Judges. Hence the observation made in AIR 1964 SC 1625 that the High Court's power to impose punishment has been curbed by the Contempt of Courts Act cannot be treated as a good law. The respondents and Mr. Ganguly, appearing on behalf of the Attorney General of India, strongly relied on Mohd. Ikram's case in support of their respective contentions that both the Parliament and the State Legislature have the power under the Constitution to make laws relating to Contempt of Court curtailing, regulating and curbing the High Court's power to punish for contempt of itself and by 1952 Act the High Court's power to punish has been curtailed. Ikram's case in support of their respective contentions that both the Parliament and the State Legislature have the power under the Constitution to make laws relating to Contempt of Court curtailing, regulating and curbing the High Court's power to punish for contempt of itself and by 1952 Act the High Court's power to punish has been curtailed. These submissions of the petitioner as well as that of the respondents and Mr. Ganguly are not correct. Although under, Cl. 2 of the Letters Patent of 1865 this High Court was recognised as a Court of Record with power to punish for contempt of itself but all its jurisdictions conferred or recognised by this Letters Patent were made subject to the provisions of Cl. 44 thereof which preserved the powers of the Indian Legislature to make laws relating to any or all such jurisdictions. "cl. 44 - And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council under S. 41 of the Government of India Act 1915 and also of the Governor-General in cases of emergency under S. 72 of the Act and may in respects be amended and altered thereby. " ( 20 ) THE Letters Patent of 1865 relating to Bombay and Madras High Courts had identical provisions. Therefore, the Indian Legislature was empowered to make laws and all the jurisdictions possessed by the High Courts as the Courts of record were liable to be altered and amended by such laws. ( 21 ) BY virtue of the provisions of Cl. 44 of this Letters Patent. Contempt of Courts Act, 1926 was enacted curbing the jurisdiction of the High Court to punish for contempt of Subordinate Courts. Sec. 3 of this Act provided :-"save as otherwise expressly provided by any law for the time being in force, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. Provided that the accused may be discharged or the punishment awarded may be remitted in apology being made to the satisfaction of the Court. Provided that the accused may be discharged or the punishment awarded may be remitted in apology being made to the satisfaction of the Court. " ( 22 ) BY the Contempt of Courts (Amendment) Act of 1937, the word subordinate in the preamble was dropped and S. 3 was amended by adding a second proviso as follows :-"provided further that notwithstanding anything elsewhere contained in any law, no High Court shall impose a sentence in excess of that specified in this section for any contempt either in respect of itself or of a Court subordinate to it. " ( 23 ) THEREFORE, before the Constitution came into force, the High Courts' power, as Courts of record to punish for contempt of itself stood curbed or curtailed by 1926 and 1937 Acts by virtue of cl. 44 of the Letters Patent of 1865. ( 24 ) IT is irrelevant and immaterial to try to trace back whether this special inherent jurisdiction to punish for contempt was derived from the British Common Law or that was conferred on High Courts in India by virtue of the provisions of the Letters Patent of 1862 and 1865. When the Constitution of India came into force, under Art. 215, it preserved and recognised all the existing powers of the High Courts as Courts of record in express terms. But by then the High Courts' power for imposing punishment for contempt had already stood curbed by 1926 and 1937 Acts. The Contempt of Courts Act 1952 is a post Constitution Act which repeated 1926 Act. Section 2 of 1952 Act defines 'high Court' - S. 4 contains High Courts' power to punish for contempt. It is a verbatim reproduction of S. 3 of 1926 Act as amended by 1937 (Amendment) Act and S. 5 widened the scope of the existing jurisdiction of the High Courts to make enquiries. 1952 Act did not put any fresh curb on the High Courts' power to punish for contempt of itself, Therefore, in Mehd. Ikram's case, decided in 1964, when the Supreme Court observed about the curb on High Courts' power to punish for contempt by the Contempt of Courts Act, it only referred to the aforesaid provisions the state of affair as existed prior to the Constitution. Ikram's case, decided in 1964, when the Supreme Court observed about the curb on High Courts' power to punish for contempt by the Contempt of Courts Act, it only referred to the aforesaid provisions the state of affair as existed prior to the Constitution. Whether this special inherent jurisdiction under Art. 215 can be touched by the Legislature or not can be decided by this Court as held in AIR 1967 SC 1 where a Bench of five Judges held in paragraph 60 :-"there is yet another aspect of the matter to which it is necessary to refer. The High Court is a Superior Court of Record and under Art. 216 shall have all powers of such a Court of record including the power to punish for contempt of itself. One distinguishing characteristic of such Superior Courts is that they are entitled to consider question of their own jurisdiction raised before them. " ( 25 ) ON behalf of the petitioner, reliance has been placed on AIR 1972 SC 858 (R. L. Kapoor v. State of Tamil Nadu ). In this case, Sukhdeo Singh's case reported in AIR 1954 SC 186 was followed. In para 5 it was held :-"in any case, so far as contempt of High Court itself is concerned, as distinguished from that of a Court subordinate to it, the Constitution vests these rights in every High Court and so no Act of Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. " ( 26 ) REGARDING the provisions of S. 5 of the Contempt of Courts Act 1952, it was held in the same para :" No doubt S. 5 of the Act states that a High Court shall have jurisdiction to enquire into and try a contempt of itself or of a Court subordinate to it whether the alleged contempt is committed within or outside the local limit of its jurisdiction and whether the contemnor is within or outside such limit. The effect of S. 5 is only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. " ( 27 ) IN this case, the Supreme Court further held in paragraph 6 :-"but the High Court, as a Court of record, being clothed with a special jurisdiction, had also all incidental and necessary powers to effectuate that jurisdiction. " ( 27 ) IN this case, the Supreme Court further held in paragraph 6 :-"but the High Court, as a Court of record, being clothed with a special jurisdiction, had also all incidental and necessary powers to effectuate that jurisdiction. " ( 28 ) THEREFORE, it is clear that S. 5 of 1952 Act only clarifies the territorial limits of the High Court's special jurisdiction in the matter of contempt of Court. ( 29 ) ANOTHER decision relied on by the petitioner is reported in 1981 Cri LJ 843 (Kant) (S. N. Nagaraja Rao v. Chikkachennappa ). The question before the Court was whether the procedure laid down u/s. 15 (1) (b) of the Contempt of Courts Act 1971 is a mandatory or a directory provision. The Division Bench of the Karnataka High Court, relying on the decision of the Supreme Court in R. L. Kapoor's case, reported in AIR 1972 SC 858 held that S. 15 (1) (b) does not apply in cases where High Courts deal with contempt of itself as no statute can take away the jurisdiction of the High Court as the Court of record to punish for contempt of itself. It was also held in paragraph 8 -"from the above observation it is clear that power of the High Court to punish for contempt of itself derived from Art. 215 stands on a different footing than its power to punish for contempt of subordinate Courts which is derived from the provisions of the Act. Therefore, S. 15 (1) providing for the consent of the Advocate General cannot be construed as mandatory as the power of the High Court to punish for criminal contempt of itself is conferred on it by Art. 215 without any restriction. " ( 30 ) THE Kamataka Bench relied on Hari Vishnu's case reported in AIR 1955 SC 233 where it is held that when the Constitution confers jurisdiction in terms absolute and unqualified, the question whether there is any limitation on that power or jurisdiction must be found out from the provisions of the Constitution itself and from nowhere else. " ( 30 ) THE Kamataka Bench relied on Hari Vishnu's case reported in AIR 1955 SC 233 where it is held that when the Constitution confers jurisdiction in terms absolute and unqualified, the question whether there is any limitation on that power or jurisdiction must be found out from the provisions of the Constitution itself and from nowhere else. ( 31 ) ACCORDING to the petitioner, the observation made by the Supreme Court in the aforesaid decisions clearly establishes that this jurisdiction under Art. 215 for punishing for contempt of itself is the special inherent jurisdiction vested in the Courts of record is absolute in its terms and scope and cannot be taken away or touched by the Legislature. Therefore S. 20 of 1971 Act is ultra vires Art. 215 of the Constitution. ( 32 ) ON behalf of the respondents, several authorities have been cited in support of their contention that the Supreme Court and other High Courts have held that provisions of the Contempt of Courts Act 1971 have regulated and limited the High Courts' power to punish for contempt of itself. The counsel for the respondents strongly relied on Mohd. Ikram's case ( AIR 1964 SC 1625 ) and submitted that the Supreme Court in that case held that High Courts' power to punish for contempt of itself was curbed by the Contempt of courts act. I have already dealt with this aspect of the case in great details that up to 1964 no curb was put on this power of the High Court by any post-Constitution Act. 1952 Act, in S. 4, incorporated the provision as existed before the Constitution was frame I The next case cited by the respondent is AIR 1974 SC 2255 (Baradakanta Mishra v. Justice Gatikrushna Misra, C. J. of the Orissa H. C. ). In this case, the Supreme Court had considered the provisions of S. 20 of the Contempt of Courts Act, 1971. The relevant observation is at page 2260, para 7 :-"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. 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. That is why the terminus a quo for the period of limitation in S. 20 is the date when a proceeding for contempt is initiated by Court. 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 S. 19, sub-sec. (1) and no appeal would lie against it as of right under that provision. " ( 33 ) IN this case, the Supreme Court was considering the question whether any appeal would lie under S. 19, sub-sec. (1) of the Contempt of Courts Act. 1971 against an order refusing to take cognizance of an alleged act of cotempt. In that connection, the Supreme Court construed the word 'initiate' in S. 20 and referred to the period of limitation. The question of limitation was not before the Court. Moreover, the question of validity or constitutionality of S. 20 was not raked or debated or decided in this case. Therefore, this case is not helping the respondents for establishing that S. 20 of 1971 Act is intra vires the Constitution. ( 34 ) THE next case cited on behalf of the respondents is AIR 1978 SC 1014 (Purushotam Dass Goel v. Hon'ble Mr. Justice B. S. Dhillon. In this case it was however observed by the Supreme Court in para 3 :-"he submitted that initiation of the proceeding by the High Court will be without jurisdiction if it is in violation of S. 20. It may be so. If the alleged contemnor in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being barred, it may well be that an appeal would be to this Court under S. 19 from such an order although the proceeding has remained pending in the High Court. If the alleged contemnor in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being barred, it may well be that an appeal would be to this Court under S. 19 from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard to this type of order, but we merely mention this type of order by way of an example. . . . . " ( 35 ) IT is clear from the extract set out above that the Supreme Court in this case was not considering the validity or constitutionality of S. 20 of 1971 Act as has been done in the present case. Hence this case is of no help to the respondents. ( 36 ) THE respondents also relied on AIR 1981 SC 723 (S. K. Sarkar, Member Board of Revenue, U. P. v. Vinay Chandra Misra) and strong reliance has been placed in paragraph 14 thereof :-"articles 129 and 215 preserve all the powers of the Supreme Court and the High Courts respectively as a Court of record which include the power to punish for contempt of itself. As pointed out in Mohd. Ikram Hussain v. State of U. P. , AIR 1964 SC 1625 , there are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act. Arts. 129 and 215 do not define as to what constitutes contempt of Court. Parliament has, by virtue of List I and List III of the Seventh Schedule, power to define and limit the powers of the Courts in punishing contempt of Court and to regulate their procedure in relation therewith. Indeed this is what stated in the Preamble of the Act of 1971. " ( 37 ) RELYING on this passage, it is argued that the Supreme Court has up held the validity of the 1971 Act. I do not think that this submission is correct. Indeed this is what stated in the Preamble of the Act of 1971. " ( 37 ) RELYING on this passage, it is argued that the Supreme Court has up held the validity of the 1971 Act. I do not think that this submission is correct. In this case, the question before the Supreme Court was whether the High Court could take cognizance of an alleged act of contempt of a Subordinate Court on a petition taken out by a citizen without obtaining the consent of the officers concerned in terms of S. 15 (2) of 1971 Act. It was held that it did not restrict the power of the High Courts to take cognizance of an act of contempt of the Sub-ordinate Court on an application taken out by a private person as would be evident from para 18 of this report. The ratio of this case is that the High Courts' power to take cognizance of contempt is not restricted by S. 15 of 1971 Act. ( 38 ) THE respondents further relied on AIR 1978 Kar 57 (N. Venkataramappa v. D. K. Naikar ). In this case, the scope and the effect of S. 20 of 1971 Act were considered. It was held in this case that S. 20 put an absolute bar on the High Courts' power to initiate contempt proceeding after expiry of one year from the date of the alleged act of contempt. But the question whether the provisions of S. 20 offened against Art. 215 of the Constitution and is ultra vires or not was not raised nor decided in this case. ( 39 ) IN AIR 1980 Guj 194 (Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society ). It was held that the period mentioned in S. 20 was not the period of limitation as ordinarily understood but it is a condition precedent to the exercise of Courts; power under 1971 Act. The question of validity or legality or constitutionality of S. 20 was not in issue before the Court. ( 40 ) IN 1980 0 Alllj 1028 (Harphool Singh v. Ranbir Singh), it was contended before the Court that Art. 215 of the Constitution lays down that all High Courts are Courts of record and have unfettered power to punish for contempt of itself or the subordinate Courts. ( 40 ) IN 1980 0 Alllj 1028 (Harphool Singh v. Ranbir Singh), it was contended before the Court that Art. 215 of the Constitution lays down that all High Courts are Courts of record and have unfettered power to punish for contempt of itself or the subordinate Courts. This submission was not accepted and it was held that the provisions of Art. 215 should be read together with the provisions of the Contempt of Courts Act, 1971. The question of constitutionality of S. 20 was not raised or considered. ( 41 ) THE constitutionality of S. 20 was challenged in 1984 Cri LJ 1171 (Advocate General, A. P. v. Koteswara Rao ). The Court held that S. 20 was intra vires. Reading paragraphs 9, 10 and 11 of this decision, it will be clear that the learned Judge proceeded on the basis that after the Constitution came into force, by the Act of 1952 for the first time, the extent of High Courts' power to impose punishment was reduced by S. 4 of that Act and thereafter by S. 12 of 1971 Act. On these findings, the learned Judge held in paragraph 11 :-"when the quantum of punishment that can be imposed by the High Court for contempt of itself is thus specifically restricted by the 1952 Act as well as in the 1971 Act, the point for consideration is whether the limitation as to time introduced for the first time in the 1971 Act is ultra vires or intended to be limited only to the cases of contempt of subordinate Court and not of the High Court which is a Court of record under Art. 215 of the Constitution of India. " ( 42 ) I have already pointed out that the provisions of S. 4 of 1952 Act and S. 12 of 1971 Act are nothing but verbatim reproduction of the provisions of S. 3 of 1926 and 1937 Acts. There was no fresh curtailment of that power either by 1952 or by 1971 Acts after the Constitution came into force. The learned Judge's attention was not drawn to 1926 and 1937 Acts. There was no fresh curtailment of that power either by 1952 or by 1971 Acts after the Constitution came into force. The learned Judge's attention was not drawn to 1926 and 1937 Acts. The learned Judge then referring to the decision in R. L. Kapoor's case AIR 1972 SC 858 and observed in para 13 :- "it was pointed out by the Supreme Court that the power to punish for contempt of the High Court as a Court of record is a special one, whether it was inherent or conferred by Art. 215 of the Constitution. But it was certainly not derived from the Contempt of Courts Act 1952 and therefore not within the purview of the Penal Code or the Code of Criminal Procedure. S. 5 of the Penal Code provided that its provisions did not apply to any special law or local law. '' ( 43 ) BY the aforesaid observations, the Supreme Court in fact held that High Court's power to punish for contempt as a Court of record is a special one and that S. 5 of the I. P. C. would not apply to any special law. The learned Judge however on the basis of this observation of the Supreme Court came to the conclusion that -"these observations in my opinion clearly declare that it is open to the Parliament to make a Special law prescribing a period of limitation for collecting and satisfying fine imposed by the High Court for contempt of itself. " ( 44 ) BUT realisation of the fine will be in execution of the fine imposed by the High Court in exercise of its special inherent jurisdiction to punish for contempt. By the aforesaid observation, the Supreme Court did not pronounce that the Parliament can make substantive law affecting High Courts' power to punish for contempt in exercise of its special jurisdiction. But the learned Judge observed :"if therefore Parliament. . . . . . . could make law prescribing period of limitation for collecting fine. . . . . . . . can there be any objection for prescribing a period of limitation for initiation of proceeding of contempt of the High Court?" ( 45 ) THE question of any 'objection' is irrelevant and does not arise. . . . . . . could make law prescribing period of limitation for collecting fine. . . . . . . . can there be any objection for prescribing a period of limitation for initiation of proceeding of contempt of the High Court?" ( 45 ) THE question of any 'objection' is irrelevant and does not arise. The question is whether the Constitution empowers the legislature to make such a laws and that power has to be found out from the provisions of the Constitution itself and from nowhere else. ( 46 ) THE learned Judge then relied on AIR 1974 SC 2255 and AIR 1978 SC 1014 , where it was held that contempt proceeding is 'initiated' when the Court applies its mind and takes cognizance of the act of contempt. In that context, the Supreme Court also observed that initiation of the contempt proceeding must be made within on year from the alleged act of contempt in terms of S. 20 of 1971 Act. I have already pointed out that in the aforesaid two cases the constitutionality of S. 20 was not raised, discussed or decided. The learned Judge, however, held that S. 20 is intra vies. In this case, the learned Judge also considered the provisions of S. 22 of 1971 Act which is set out below :-"the provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of Courts. " ( 47 ) IT should be noted that the provisions of this section are in conflict with the preamble of this Act which says that object of this Act is to define and limit the power of certain Courts. ( 48 ) THE learned Judge elaborately dealt with this Section and arrived at the following conclusion :-"it is true that S. 22 is 'not in derogation of the provisions of' any other law relating to contempt. But that section is meant to clarify that the Act confers powers in addition to those existing. The words 'not in derogation' mean that the substantive powers of contempt are not to be eroded by the Act. At the same time there can be no objection to regulate the procedure for contempt. But that section is meant to clarify that the Act confers powers in addition to those existing. The words 'not in derogation' mean that the substantive powers of contempt are not to be eroded by the Act. At the same time there can be no objection to regulate the procedure for contempt. Basically the prescription of a period of limitation is procedural and hence S. 20 like S. 12 cannot be said to derogate from the power mentioned in Art. 215 of the Constitution. To derogate from a law is to enact something which impairs the utility and force, to abrogate a law is to abolish it entirely. S. 20 does not intend to abrogate the powers of Art. 215 of the Constitution either wholly or partially. The powers can be exercised in all their amplitude within the period of one year prescribed by S. 20. " ( 49 ) IT has to be found out whether S. 20 impaired the utility or force of the special jurisdiction of the Supreme Court under Art. 129 and the High Courts under Art. 215 and whether the powers of the Courts of record have been eroded or not. In para 17 of this decision, the learned Judge, clearly held :-"the power of the High Court is circumscribed by the provisions of the 1971 Act enacted by the Parliament. " ( 50 ) THE view taken by the learned Judge regarding the effect of 1971 Act, as stated in para 17, is in conflict with the view taken in para 19 of this case. Moreover, the learned Judge did not consider the earlier decision of the Supreme Court, viz. , AIR 1954 SC 186 where it was unanimously held by the Full Bench that High Court's power to punish for contempt of itself under Art. 215 cannot be taken away by any Act of the legislature. For all these reasons, I humbly disagree with this decision of the learned Judge of the Andhra Pradesh High Court. I have dealt with this judgment at great length as Mr. Ganguly, appearing on behalf of the Attorney General of India, has strongly relied on this case in support of his contention that S. 20 is intra vires. .