High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.09.2009CORAM:THE HONOURABLE MR.JUSTICE H.L.GOKHALE, CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE D.MURUGESANWrit Petition No.6240 of 2009andM.P.Nos.1, 2, 3 & 4 of 2009K.S.IllangovanS/o. K.Sivaprakasam,No.7, Dasapuram,Chetpet,Chennai. ..Petitionervs1. The High Court of Judicature at Madras Represented by the Registrar General, High Court, Chennai – 104.2. The Government of Tamil Nadu, Represented by the Chief Secretary, Fort.St.George, Chennai-9 ..RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia praying for the issue of a Writ of Certiorari to call for therecords relating to the impugned amendment of the respondent in hisR.O.C.No.855-A/2000/PR High Court, Madras dated 20.09.2007 amendingRule 6 Sub Rules 2 & 3 of the Contempt of Court Rules, High Court,Madras, 1975 and quash the same as unconstitutional and ultra viresto Articles 215 and 225 of the Constitution of India and Section 23of the Contempt of Courts Act, 1971. For Petitioner : Mr.K.S.Ilangovan, Petitioner-in-personFor Respondent 1 : Mr.V.AyyathuraiFor Respondent 2 : Mr.P.S.Raman, Advocate General. https://hcservices.ecourts.gov.in/hcservices/ O R D E RTHE HON’BLE CHIEF JUSTICEThe petitioner is an advocate practicing in this High Court. Hehas filed this petition seeking for a Writ of Certiorari to call forthe records relating to amendment dated 20th September, 2007 amendingRule 6 (Sub-rules 2 & 3) of the Contempt of Court Rules of the HighCourt of Madras, 1975 and quash the same as unconstitutional andultra vires to Articles 215 and 225 of the Constitution of India andSection 23 of the Contempt of Courts Act, 1971. 2. The petitioner has appeared in person. Respondent No.1 isrepresented by Mr.V.Ayyathurai, learned counsel and Respondent No.2 –Government of Tamil Nadu is represented by Mr.P.S.Raman, learnedAdvocate General. 3. Sub-Rules 2 & 3 of Rule 6 of the Contempt of Court Rules ofthe High Court of Madras, 1975 prior to the impugned amendment, readas follows: -“6(2) Every such application shall be postedbefore the Judge or Judges in respect of whoseJudgment, Decree, Direction, Order, writ or otherprocess the contempt is alleged, for orders as towhether notice shall issue to the allegedcontemner.6(3) In case the Judge or Judges concerned is orare not available, the Chief Justice may directthat the application be posted before some otherJudge or Judges as the case may be for orders asto whether notice shall issue to the allegedcontemner.”4. The aforesaid Rule was amended by amendment No.ROC No.855-A/2000/PR dated 20th September, 2007 and the amendment reads asfollows: -“In Rule 6, Sub Rule (2) of the Contempt of CourtRules, High Court, Madras, 1975, the followingprovision shall be inserted in the place of theexisting provision.“ Every such application shall beposted before the Judge or Judgesnominated by the Hon’ble Chief Justicefor orders as to whether notice shallissue to the alleged contemner.” https://hcservices.ecourts.gov.in/hcservices/ Sub-rule (3) of Rule 6 of the said Rules, shallstand deleted and sub-rules (4) to (6) shall benumbered as (3) to (5)”5. The principal submission of the petitioner is that the HighCourt is a court of record as provided by Article 215 of theConstitution of India and once a Judge or a Bench of the High Courthas passed an order or direction, (the breach of which is complainedof by the aggrieved party), the same Judge or Bench, which has therecord of the case, must hear the contempt petition. According to thepetitioner, this amended Rule, insofar as it permits the hearing of apetition alleging civil contempt in connection with breach orviolation of an order passed by a learned Judge, who is nominated bythe Chief Justice (and who is other than the Judge or Judges who havepassed the concerned order), is therefore ultra vires Article 215 ofthe Constitution of India.6. Now we shall refer to the relevant provisions in this behalf.Civil Contempt is defined under Section 2(b) of the Contempt ofCourts Act, 1971 as follows: -“ 2(b) – civil contempt means willfuldisobedience to any judgment, decree, direction,order, writ or other process of a Court or wilfulbreach of an undertaking given to a Court.” 7. Article 214 of the Constitution states that there shall be aHigh Court for each State. Article 216 of the Constitution providesfor the Constitution of High Courts, and it states that every HighCourt shall consist of a Chief Justice and such other Judges as thePresident may from time to time deem it necessary to appoint. Article215 of the Constitution, which is pressed into service by thepetitioner for voiding the Rule in question, reads as under:-“Every High Court shall be a Court of record andshall have all the powers of such a Courtincluding the power to punish for contempt ofitself”8. It is relevant to note that the Allahabad High Court almosthad a similar Rule being Rule 4(a) of Chapter XXXV-E of the Rules ofthe High Court of Judicature at Allahabad. The said Rule reads asunder: -“4(a) Every case relating to civil contempt shallbe presented before the Bench of a Single Judgeconstituted for that purpose.”A Division Bench of the Allahabad High Court took the view that theprovision of this Rule flies in the face of Article 215 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India insofar as the Rule provides hearing of suchcontempt petition by a Judge other than the one who passed the orderof which a breach is complained, and therefore, to that extent wasnull and void and in operative in law. The High Court of Judicatureat Allahabad through its Registrar carried the matter in appeal tothe Apex Court. The Apex Court reversed the judgment of the DivisionBench of Allahabad High Court and held the Rule to be a valid Rule.The above judgment, which arose from the case of High Court ofJudicature at Allahabad through its Registrar v. Raj Kishore Yadav,is reported in 1997 (3) SCC 11. 9. In the aforesaid judgment, the Apex Court referred to Section108 of the Government of India Act, 1915, Section 223 of theGovernment of India Act, 1935 and Article 225 of the Constitution ofIndia and then observed in para-9 as follows: -“....Thus a conjoint reading of Section 108 ofthe Government of India Act, 1915, Section 223 ofthe Government of India Act, 1935 and Article 225of the Constitution of India makes it clear thatevery High Court by its own rules can provide forexercise of its jurisdiction, original orappellate, by one or more Judges or by divisioncourts consisting of two or more Judges of theHigh Courts and it is for the Chief Justice ofeach High Court to determine what Judge in eachcase is to sit alone or what Judges of the courtwhether with or without the Chief Justice are toconstitute several division courts”…….10. Thereafter in para-11, it laid down the law in terms in thefollowing words: -“The civil contempt alleged is the contempt ofthe High Court as such and not the contempt ofthe author of the order being the Judge concernedwho might have passed the said order, whetherinterim or final. When civil contempt by way ofbreach of such an order is alleged it is theinstitution of the High Court as such which issaid to have been contemptuously dealt with bythe contemnor concerned. For upholding themajesty of the institution as such, therefore,the High Court as a court of record can look intothe grievance centring round the alleged breachof its order and it is this power to punish thecontemnor that flows from Article 215 of theConstitution of India as well as from therelevant provisions of the Act. But how thisgrievance of the aggrieved party is to be https://hcservices.ecourts.gov.in/hcservices/ processed and examined pertains to the realm ofdistribution of work and jurisdiction of the HighCourt amongst different Division Benches and thatexercise is permissible to the Chief Justice ofthe High Court as per the rules framed by theHigh Court on its administrative side. Thatexercise has nothing to do with Article 215.Article 215 saves the inherent powers of the HighCourt as a court of record to suitably punish thecontemnor who is alleged to have committed civilcontempt of its order. Order might have beenpassed by any of the learned Judges exercisingthe jurisdiction of the High Court as per thework assigned to them under the Rules by theorders of the Chief Justice, but once such anorder is passed by a learned Single Judge or aDivision Bench of two or more Judges the orderbecomes the order of the High Court. Breach ofsuch an order which gives rise to contemptproceedings also pertains to the contempt of theHigh Court as an institution. At that stageArticle 215 does not operate, but it is onlyArticle 225 read with the Rules framed by theHigh Court on administrative side and the powerinhering in the Chief Justice, of assigning workto the appropriate Bench of Judge or Judges,under Section 108 of the Government of India Act,1915 read with Section 223 of the Government ofIndia Act, 1935 which would have its full play.Consequently if under the impugned Rule the taskof considering the grievances of the aggrievedparty in connection with civil contempts of HighCourt’s orders is assigned to one of the Judgesof the High Court it cannot be said that therebythe impugned Rule has in any manner affected thestatus of the High Court as a court of record.”In our view, the aforesaid judgment clearly answers the query raisedby the petitioner. 11. The other judgment cited by the petitioner was in the caseof Pallav Seth vs. Custodian reported in 2001 (7) SCC 549. That washowever concerning the period of limitation for initiating contemptproceedings and how the same can be initiated. As observed by theApex Court itself in para-32 of that judgment, there was no challengeto the validity of any of the provisions of the Contempt of CourtsAct in that matter. https://hcservices.ecourts.gov.in/hcservices/

12. The last submission of the petitioner was that the impugnedRule is ultra vires Section 23 of the Contempt of Courts Act, 1971.The said Section reads as follows: -“Power of Supreme Court and High Courts to makerules – The Supreme Court or, as the case may be,any High Court, may make rules, not inconsistentwith the provisions of this Act, providing forany matter relating to its procedure.”A bare perusal of the above section makes it clear that the sectionitself states that the High Court may make rules governing theprocedure to deal with the cases of contempt, but the rules so mademust not be inconsistent with the provisions of the Act. We have notbeen pointed out as to how the Rule, which permits an applicationseeking the action for contempt to be posted before the Judge orJudges nominated by the Chief Justice, is in any way violative of theContempt of Courts Act, 1971. 13. In the circumstances, the submission of the petitioner thatthe impugned amendment of the concerned Rule is ultra vires Articles215 & 225 of the Constitution of India and Section 23 of the Contemptof Courts Act, 1971 is hereby repelled. The amended Rule 6(2) of theContempt of Court Rules of the High Court of Madras, 1975 is held tobe valid and legal, and not inconsistent with the aforesaidprovisions of the Constitution or of the Contempt of Courts Act,1971. 14. The writ petition is dismissed with the above observations.No costs. The miscellaneous petitions shall stand closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarpv/-To1. The Registrar General, High Court of Judicature at Madras, High Court, Chennai – 104.2. The Chief Secretary, Government of Tamil Nadu, Fort.St.George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ Copy to:The Section Officer,Legal Cell, High Court, Madras.+ 1 c.c. to The Government Pleader. S.R.No.45594. W.P.No.6240/2009SAI (CO)GSK 30.09.2009.