Vishwas Sudhanshu Bhambhurkar vs Tapan Nitin Khandhadiya
2023 Latest Caselaw 3235 Guj

     C/MCA/342/2023                          ORDER DATED: 25/04/2023




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/MISC. CIVIL APPLICATION NO. 342 of 2023

=============================================
               VISHWAS SUDHANSHU BHAMBHURKAR
                              Versus
                   TAPAN NITIN KHANDHADIYA
=============================================
Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 1
=============================================

 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
                   and
       HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 25/04/2023

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of this contempt petition, the applicant party-in-

person appearing has prayed for the following reliefs :-

"(A) initiate contempt proceedings against the sole respondent (Mr. Tapan Nitin Khandhadiya), Ld. 6 th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, at the District Courts, Surat, for deliberate and willful disobedience of two orders - (i) para 5 of order dated 10.02.2016 passed by the Hon'ble Apex Court in Criminal Appeal No. 110 of 2016 Hamant Yashwant Dhage versus State of Maharashtra & Ors., and para 24 of the order dated 05.08.2022 passed by the Hon'ble Apex Court in Criminal Appeal No. 1184 of 2022 XYZ versus State of Madhya Pradesh & Ors., in not passing appropriate orders after a prima facie reading of the compliant, and unnecessarily trying to prolong the issue which amounts to contempt of the Court;

C/MCA/342/2023 ORDER DATED: 25/04/2023

(B) Punish the sole contemnor under Contempt of Courts Act, 1971;

(C) pass other and such further orders as this Hon'ble Court may deem fit in the facts and circumstances of the case."

2. Basically this contempt petition has been filed under

Sections 2, 12, 14 and 16 of Contempt of Courts Act, 1971 read

with Article 129 of the Constitution of India and in the cause

title it has been stated that this contempt petition is filed for

non-compliance of the judgment and order passed by the

Hon'ble Apex Court in the case of Hamant Yashwant Dhage

versus State of Maharashtra & Ors and XYZ versus State of

Madhya Pradesh & Ors. The background of this contempt

petition is that the applicant came to know about some builders/

developers who had procured 'No Objection Certificate' from

the Airports Authority by practicing misrepresentation and

thereby has constructed property at spots significantly different

from the location for which NOCs were issued. This was

subsequently vindicated by the Airports Authority of India in its

affidavit dated 24.02.2021 submitted in Writ Petition (PIL) No.

63 of 2019.

C/MCA/342/2023 ORDER DATED: 25/04/2023

2.1. On account of the fact that some cognizable offence is said

to have been committed, a complaint was filed by the applicant

on 14.01.2022 which has later on generated into litigation as

narrated in the memo of contempt petition by giving certain

particulars in the memo as narrated. It has been alleged that

the applicant approached the learned 6th Additional Senior Civil

Judge & Additional Chief Judicial Magistrate, Surat by filing

Criminal Misc. Application No. 2 of 2023 for seeking direction to

the Police under Section 156(3) of the Code of Criminal

Procedure. However, according to the applicant inadvertently,

the court below refrain from passing any order despite the fact

that there was existence of order of Hon'ble Apex Court and

though pointed out by way of affidavit dated 14.02.2023, the

court below has allegedly willfully acted contrary to the order

dated 17.08.2021 passed by the Division Bench of this Court

and by making such brief assertion, it has been alleged that

since there is willful disobedience of the direction of the Hon'ble

Apex Court as narrated in prayer clause, the contempt petition

be entertained.

C/MCA/342/2023 ORDER DATED: 25/04/2023

3. Heard applicant who is appearing as party-in-person. It

appears that the party-in-person has made an attempt to

persuade this Court to initiate appropriate steps under the

provisions of Contempt of Courts Act, against the court

concerned as indicate above, but while perusing the memo of

contempt petition, we found that on one hand in paragraph 5 it

has been stated that the court below has deliberately acted

against the order dated 17.08.2021 passed b the Division Bench

of this Court, whereas on the other hand in prayer clause it has

been mentioned that there is willful disobedience of two orders

passed by the Hon'ble Apex Court i.e. order dated 10.02.2026

and order dated 05.08.2022 and as such, if we go by the prayer

clause, the same are for non compliance of the orders passed by

the Hon'ble Apex Court. Hence, we are not inclined to entertain

the present contempt petition basically in the present form

where laconic averments are made and not only that, a self

contradictory stand appears to have been taken looking to

paragraph 5 and 6 and as such, we are not inclined to entertain

the present contempt petition.

3.1. Apart from that we may also observe that if there is a

C/MCA/342/2023 ORDER DATED: 25/04/2023

serious violation of the order passed by the Hon'ble Apex Court,

then by virtue of reading of Articles 129 and 215 of the

Constitution of India, this Court is not in a position to initiate

any step and the reason is that in a recent decision delivered by

the Hon'ble Apex Court in the case of All India Adiwasi

Employees Federation v. Shaktikanta Das & Ors., reported

in 2021 (4) Maharashtra Law Journal 718, wherein it has

been propounded that power to punish under Article 215 of the

Constitution of India is limited with regard to contempt for the

High Court and courts subordinate to it and the same does not

extend to punish for contempt of superior Court and as such,

taking into consideration the said ratio, we deem it proper not

to exercise the discretion. The relevant observations made in

paragraph 4 since relevant, the Court deems it proper to re-

produce hereunder :-

"4. In Manubhai Pragji Vashi v, State of Maharashtra and ors., 1996(2) MHLJ 615 a learned Single Judge (R.M. Lodha, J. as His Lordship then was) held in clear terms that the High Court was no jurisdiction to invoke the power under the Contempt of Courts Act, 1971 or for that the High Court has no jurisdiction to invoke the power under the Contempt of Courts Act, 1971 or for that matter under Article 215 of the Constitution of India for alleged contempt of the order, judgment or direction of the Honourable Supreme Court. This decision has been

C/MCA/342/2023 ORDER DATED: 25/04/2023

followed by this Court in clear terms has held that the power to punish for contempt vested in a Court of Record under Article 215 of the Constitution does not extent to punishing for contempt of a superior Court. The power to punish under Article 215 is limited to the contempt of the High Court or courts sub-ordinate to the High Court. In the light of the doctrine of merger what remains on record is only the judgment of the Honourable Supreme Court in Civil Appeal No. 10396/2018. If according to the petitioner there is non-compliance of any direction issued in that judgment, the petitioner would have to invoke the appropriate jurisdiction before the Honourable Supreme Court."

3.2. Yet another decision of the Allahabad High Court in the

case of Anand Dwivedi v. H.C. Awasthi & Ors., rendered in

Contempt Application (Civil) No. 2632 of 2020 dated

31.08.2020, the Court in paragraphs 5 and 6, has held as

under:-

"5. A reference may be made to the judgment of the Hon'ble Apex Court in the case of Vitusah Oberoi and Others vs. Court of Its Own Motion; (2017) 2 SCC 314, wherein the Hon'ble Apex Court has held that there is nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution of India which can be said to empower the High Court to initiate proceedings either of suo-motu or otherwise for the contempt of a superior Court like the Supreme Court of India. Paragraphs 10 and 12 of the aforesaid judgment are quoted as under:-

"10. There is, from a plain reading of the above, nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution

C/MCA/342/2023 ORDER DATED: 25/04/2023

which can be said to empower the High Court to initiate proceedings suo-motu or otherwise for the contempt of a superior Court like the Supreme Court of India. As a matter of fact, the Supreme Court under Article 219 and High Court under Article 215 of the Constitution are both declared to be Courts of Record. One of the recognised attributes of a court of record is the power to punish for its contempt and the contempt of courts subordinate to it. That is precisely why Articles 129 and 215, while declaring the Supreme Court and the High Courts as Courts of Record, recognise the power vested in them to punish for their own contempt. The use of the expression "including" in the said provisions is explanatory in character. It signifies that the Supreme Court and the 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.

12. 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

C/MCA/342/2023 ORDER DATED: 25/04/2023

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."

6. This application filed under Section 10 and 12 of the Contempt of Courts Act, 1971 for willful disobedience of the judgment and/ or direction given by the Hon'ble Supreme Court is clearly not maintainable before this Court."

4. Thus, keeping the authoritative proposition in mind, we

are of the opinion that no case is made out by the applicant to

entertain the present contempt petition. Accordingly, the

present contempt petition stands dismissed.

(ASHUTOSH SHASTRI, J)

(J. C. DOSHI,J) phalguni