Vaghela Jenubhai Jasmatsang vs K. A. Patel, The Secretary
2023 Latest Caselaw 3029 Guj

      C/MCA/261/2023                                ORDER DATED: 19/04/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/MISC. CIVIL APPLICATION NO. 261 of 2023
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                       VAGHELA JENUBHAI JASMATSANG
                                    Versus
                         K. A. PATEL, THE SECRETARY
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Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MS. TEJAL RAJPUT, AGP for the Opponent(s) No. 1
NOTICE SERVED BY DS for the Opponent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                              Date : 19/04/2023
                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

[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

C/MCA/261/2023 ORDER DATED: 19/04/2023

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

C/MCA/261/2023 ORDER DATED: 19/04/2023

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. 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.

       C/MCA/261/2023                            ORDER DATED: 19/04/2023




[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 filledw wherein,

apart from raising various disputes, in para 6, 7 of the affidavit-

in reply, deponent has raised dispute that since the order, for

C/MCA/261/2023 ORDER DATED: 19/04/2023

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 Versus Court and its own Motion, reported in 2017 SCC Online SC 1 decide on02.01.2017 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

C/MCA/261/2023 ORDER DATED: 19/04/2023

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. 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.

[5] To sustain the contention raised in the affidavit-in-

reply, learned AGP, having referred to the judgment of the

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Hon'ble Supreme Court in in the case of Vitusah Oberoi

versus Court and its own motion, reported in 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

C/MCA/261/2023 ORDER DATED: 19/04/2023

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. 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.

[6] No other and further submissions have been

canvassed by learned advocates for the respective parties.

[7] 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

C/MCA/261/2023 ORDER DATED: 19/04/2023

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."

[8] A bare perusal of Section 10 of Contempt of Courts

Act indicates that the High Court owes the power to punish the

Contmpt 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 refere Articles 129 and 215 of the

Constittuion 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."

        C/MCA/261/2023                                  ORDER DATED: 19/04/2023




[9]             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.

[10] 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

C/MCA/261/2023 ORDER DATED: 19/04/2023

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.

[11] 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.

(ASHUTOSH SHASTRI, J)

(J. C. DOSHI,J) VISHAL MISHRA