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2023 DIGILAW 636 (GUJ)

VAGHELA JENUBHAI JASMATSANG v. K. A. PATEL

2023-04-19

ASHUTOSH SHASTRI, J.C.DOSHI

body2023
ORDER : 1. By way of this contempt petition filed under the provisions of Section 2(b), 10 and Section 12 of the Contempt of Courts Act, 1971 read with under Article 215 of the Constitution of India, 1950, the present petitioners seek following relief: “(A) YOUR LORDSHIPS may be pleased to admit and allow this application. (B) YOUR LORDSHIPS may be pleased to punish the opponents herein-original respondents for non-compliance of the order passed by the Hon’ble Apex Court passed in Special Leave Petition (Civil) Diary No. 26528 of 2022 dated 21.10.2022 in accordance with law. (C) YOUR LORDSHIPS may be pleased to direct the opponents herein to comply with the order passed by the Ho’ble Apex Court passed in Special Leave Petition (Civil) Diary No. 26528 of 2022 dated 21.10.2022 and further be pleased to direct the respondents to pay the interest on the amount of compensation as directed by the Hon’ble Apex Court forthwith. (D) Pending hearing and final disposal of this application YOUR LORDSHIPS may be pleased to direct the opponents herein to comply with the order passed by the Hon’ble Apex Court passed in Special Leave Petition (Civil) Diary No. 26528 of 2022 dated 21.10.2022 and further be pleased to direct the respondents to pay the interest on the amount of compensation as directed by the Hon’ble Apex Court forthwith. (E) YOUR LORDSHIPS may be pleased to pass such other and further order as the nature and circumstances of the case may require.” 2. The brief facts of the present case are that the petitioners are the owners of land bearing Survey Nos. 815, 822, 823, 825, 833, 834, 841, 842 and 843 situated in Sim of village Chekhla, Sanand, Ahmedabad. Since, they were desirous to construct Narmada Canal, the possession of lands were acquired by land acquisition officer, issuing Notification, under Section 4 of Land Acquisition Act on 30.03.2011. Subsequently another Notification under Section 6 of Land Acquisition Act was issued on 29.06.2011 and same was published in official Gazette on 21.07.2011. Though the notification dated 21.07.2011 was published, no award was declared by respondents, and therefore, the petitioners have approached this Hon’ble Court by way of Special Civil Application No. 18072 of 2015 seeking direction for the declaration of the award. Though the notification dated 21.07.2011 was published, no award was declared by respondents, and therefore, the petitioners have approached this Hon’ble Court by way of Special Civil Application No. 18072 of 2015 seeking direction for the declaration of the award. The Division Bench of this Court by way of an order dated 10.12.2015 has been pleased to pass to direct the respondents to comply with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and passed awards in respect of the lands of the petitioners, within a period of three months from the date of receipt of a copy of the order but the said directions were not complied with and hence, the petitioners have filed contempt petition being Misc. Civil Application No. 2687 of 2016. After passing various orders by the Division Bench of this Court, ultimately the respondents authority have passed an award on 31.01.2018, but interest was not paid on amount of compensation. 2.1 The order dated 31.01.2018 was challenged by the petitioners by filing Special Civil Application No. 3549 of 2018 and dismissed the same vide order dated 23.12.2021. Thereafter, the same was challenged before the Hon’ble Supreme Court by way of filling SLP, whereupon the Hon’ble Supreme Court directed to pay the interest @ within 12 weeks to the applicants vide order dated 21.10.2022. The petitioners have submitted that 12 weeks’ have already been passed but till the order passed by the Hon’ble Supreme Court has not been complied with. The petitioners have preferred representation, thereafter, to the respondent authorities but they sat tight over the order passed by the Hon’ble Supreme Court of India. In view of above, the present contempt petition is filed. 3. Consequent to the order dated 01.03.2023, the Notice was issued by Coordinate Bench of this Court to the other side. Affidavit-in-reply is filed by one Mahendrabhai M. Desai, Deputy Collector, Special Land Acquisition Officer, Narmada Project, at page on 216 came to be filled wherein, apart from raising various disputes, in Para 6, 7 of the affidavit-in-reply, deponent has raised dispute that since the order, for which, the contempt petition is filed, is passed by the Hon’ble Apex Court. Affidavit-in-reply is filed by one Mahendrabhai M. Desai, Deputy Collector, Special Land Acquisition Officer, Narmada Project, at page on 216 came to be filled wherein, apart from raising various disputes, in Para 6, 7 of the affidavit-in-reply, deponent has raised dispute that since the order, for which, the contempt petition is filed, is passed by the Hon’ble Apex Court. Thus, in view of Article 215 of the Constitution of India, the Hon’ble High Court being court of Record shall have no power to initiate and try the contempt of order passed by the Higher Court i.e. Hon’ble Apex Court and therefore this contempt petition is not maintainable. Para 6 and 7 reads as under: “6. It is respectfully submitted therefore the present application is not maintainable as stated above in article 215 of the Constitution of India states that High Court shall be the Court and have all the powers of such Court including the power to punish for contempt of itself. 7. It is respectfully submitted that the Hon’ble Supreme Court in Vitusah Oberoi vs. Court and its Own Motion, 2017 SCC Online SC 1 decide on 02.01.2017 held that article 215 does not give power to High Court to punish for contempt of the Hon’ble Supreme Court.” 4. To meet with this contention, learned advocate Mr. Apurva Kapadia appearing for the applicants has read over Section 2(b) of Contempt of Courts Act, and argued that Civil Contempt means a wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. He would further submit that since the word “Court” is not defined in the Contempt of Courts Act, it includes every Court from the lowest Court to Highest Court, the order of which can be amenable to the contempt jurisdiction of this Court. He would further submit that since word “Court” cannot define in the Contempt of Court Act, the order of Hon’ble Supreme Court can also be considered, as the order of the Court, which fall within the category of Civil contempt and the High Court has authority, jurisdiction and power under the provisions of Contempt of Courts Act to punish the contemnor for the breach of the order of Hon’ble Supreme Court. 5. Upon such submission, learned advocate Mr. 5. Upon such submission, learned advocate Mr. Apurva Kapadia submits that contention raised in the affidavit in reply that the present contempt petition is not maintainable, is unsustainable and can be overlooked. Further, he would submit to overthrow such contention and grant the prayer made in the contempt petition. 6. To sustain the contention raised in the affidavit-in-reply, learned AGP, having referred to the judgment of the Hon’ble Supreme Court in the case of Vitusah Oberoi vs. Court and its Own Motion, 2017 SCC Online SC 1, dated 02.01.2017 would mainly argue that, as a matter of fact, the Hon’ble Supreme Court of India, under Article 129 and the High Court, under Article 215 of the Constitution of India, declared both the Courts as Courts. One of the recognised attributes of a Court or record is the power to punish for its contempt and the contempt of Courts Subordinate to it. That is precisely Articles 129 and 215 armed with power to punish its contempt or contempt of Courts subordinate to it. She would further submit that expression “including” in Articles 129 and 215 of Constitution of India are self-explanatory in nature. She would further submit that it implies that the Hon’ble Supreme Court and High Courts shall, as Courts of Records, exercise all such powers as are otherwise available to them including the power to punish for their own contempt. She would further submit that in view of Article 215 of the Constitution of India, the Hon’ble Supreme Court is a Courts of record and was entitled not only to punish for its own contempt but to do all that which is within the powers of a Court of record, whereas in view of Article 215 of the Constitution of India, the High Court being a Court of record, is armed with the power to punish the contempt of its own order as well as the contempt of subordinate of Court. She would further submit that the basic difference between Article 129 and 215 of the Constitution of India, postulate that though High Court owes the power of punish contempt of its own or subordinate Court it does not owe the power to punish the contempt of superior court. In another word, Article 215 of the Constitution of India, does not extend power to punish the contempt of Superior Court. In another word, Article 215 of the Constitution of India, does not extend power to punish the contempt of Superior Court. A priori, this Court cannot punish for the contempt of Supreme Court, which is alleged herein this case and therefore, she submits to dismiss this contempt petition. 7. No other and further submissions have been canvassed by learned advocates for the respective parties. 8. Having heard the learned advocates for the respective parties. At the outset, let refer Section 10 of the Contempt of Courts Act, which reads as: “Section 10 of the Contempt of Courts Act, 1971 empowers the High Courts to punish contempt of its subordinate courts. The Company Law Board is judicially subordinate to the High Court and, even if it s administrative control is held not to vest in the High Court under Section 10 of the 1971 Act.” 9. A bare perusal of Section 10 of Contempt of Courts Act indicates that the High Court owes the power to punish the Contempt of Subordinate Court but it does not owe the power to punish the contempt of Superior Court. At this juncture, to understand power of Courts of record to punish for contempt. Hence, it is necessary to refer Articles 129 and 215 of the Constitution of India. “Article 129 129. Supreme Court to be a court of record: 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.” Article 215 215. High Court 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.” 10. Thus, from plain reading of above indication that, nothing in the contempt of Courts act or in article 215 of the Constitution of India, which empowers to the High Court to initiate proceeding for contempt of Superior Court i.e. Hon’ble Supreme Court of India. 11. At this juncture, we may also refer to observation of the Hon’ble Supreme Court in the case of Vitusah Oberoi and Ors versus Court of its Own Motion (supra), wherein paragraph 11, the Hon’ble Supreme Court has held thus: 11. 11. At this juncture, we may also refer to observation of the Hon’ble Supreme Court in the case of Vitusah Oberoi and Ors versus Court of its Own Motion (supra), wherein paragraph 11, the Hon’ble Supreme Court has held thus: 11. The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. A priori if the power to punish under Article 215 is limited to the contempt of the High Court or courts subordinate to the High Court as appears to us to be the position, there was no way the High Court could justify invoking that power to punish for the contempt of a superior court. That is particularly so when the superior court’s power to punish for its contempt has been in no uncertain terms recognised by Article 129 of the Constitution. The availability of the power under Article 129 and its plenitude is yet another reason why Article 215 could never have been intended to empower the High Courts to punish for the contempt of the Supreme Court. The logic is simple. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so. Viewed from any angle, the order passed by the High Court appears to us to be without jurisdiction, hence, liable to be set aside. 12. In view of above and for foregoing reasons, this Court does not hold jurisdiction to punish the contempt of order passed by the superior Court i.e. the Hon’ble Supreme Court, which is alleged in the present case. In that facts and circumstances, this Contempt petition fails and accordingly dismissed. Notice is discharged.