1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Contempt Petition No.169 of 2008 (Arising out of Writ Petition No.3992 of 2007, thereafter registered as Writ Petition No.2394 of 2008) M/s. Krushnakumar Gokulchand, A partnership firm, through its partner Shri Krushnakumar Gokulchand Sharma, aged about 39 years, having its office at New Radhakisan Plots, Behind Main Post Office, Akola, Tahsil and District Akola. ... Petitioner Versus 1. Shri K.P. Bakshi, Principal Secretary, Food, Civil Supplies and Consumer Protection Department, Mantralaya, Madam Cama Road, Mumbai-400 032. 2. Shri V.V. Vaidya, Additional Collector/Inquiry Officer, Pune, having its office at District Collectorate, Pune. 3. State of Maharashtra, through Chief Secretary, Mantralaya, Mumbai-32. ... Respondents Shri P.C. Madkholkar, Advocate for Petitioner. Smt. B.H. Dangre, Additional Government Pleader for Respondents. 2 CORAM : R.C. Chavan, J. DATED : 8th July, 2009 Oral Order : 1. This petition by respondent No.3 in Writ Petition Nos.2394 of 2008 and 2414 of 2008 before the Principal Seat of this Court (originally Writ Petition No.3992 of 2008 before this Bench and Writ Petition No.3868 of 2007 before Aurangabad Bench of this Court) complains of disobedience of the judgments in the two petitions delivered on 31-7-2008 by the First Court at Mumbai. 2. Notice before admission was ordered to be issued on 16-9-2008. The respondents appeared and filed affidavits-in- reply from time to time explaining as to how there was no disobedience of the order of this Court and also tendering apology for lapse, if any. 3. The learned Additional Government Pleader for the respondents, however, contended that this Bench may not take cognizance of the present petition considering the fact that the order, disobedience whereof is complained, was passed at the Principal Seat and, therefore, this petition ought to be ordinarily placed before the appropriate Bench at the Principal Seat. 3 4. Both the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents addressed me extensively on the question of jurisdiction of this Bench to entertain the petition and also of propriety to entertain this petition. 5. It may be useful to briefly recount the relevant facts. The petitioner in the two writ petitions was M/s. Atlas Transport Company, which had also tendered its bid for contract for transport of goods under the public distribution system. Proceedings for black-listing petitioner – M/s. Atlas Transport Company had been initiated. The Company filed before the Aurangabad Bench Writ Petition No.3868 of 2007 in respect of action initiated against it for contracts in Buldana and Jalgaon Districts. The Court did not entertain the petition to the extent the cause of action had arisen in Buldana District, within the jurisdiction of Nagpur Bench. Respondent No.3 in the said petition is the petitioner in the present contempt petition. It may be seen that the present contempt petitioner had himself raised the question of jurisdiction before Aurangabad Bench. In respect of the order passed by Aurangabad Bench, a Special Leave Petition was filed by M/s. Atlas Transport Company before the Apex Court, bearing No. 17052 of 2007, wherein the Supreme Court requested Aurangabad Bench to dispose of the writ petition as early as 4 possible and preferably by 15-5-2008. 6. A petition was also filed before Nagpur Bench, bearing Writ Petition No.3992 of 2007, which was admitted, but interim relief was not granted. Aggrieved by the refusal to grant interim relief in the petition before Nagpur Bench, M/s. Atlas Transport Company preferred Special Leave Petition No.5901 of 2008, in which the Supreme Court passed the following order : “ The order passed in the Civil Appeal arising out of SLP(C) No.17052 of 2007 shall govern this case also. It is open to the parties to move the Hon’ble Chief Justice of the Bombay High Court to place all the connected matters before one Bench for convenience of the parties. The special leave petition is disposed of accordingly.” It seems that in view of this order, the parties moved the Hon’ble the Chief Justice and this is how the two writ petitions came to be taken up for hearing at Mumbai as Writ Petition Nos.2394 of 2008 and 2414 of 2008. 7. After hearing the parties, the petitions were disposed of by issuing following directions : 5 “(a) The letter dated 25th May 2007 in so far as it relates to awarding of contract to the Petitioner where he was successful bidder i.e. Jalgaon and Buldhana Districts, the Respondents can keep the matter in abeyance and not award the contract to the Petitioner till completion of the enquiry proceedings taken out in furtherance to the show cause notice dated 14th March 2008; (b) The letter dated 25th May 2007, Annexure ‘R’ to the Petition, in so far as it debars the Petitioner from being considered in any of the tenders in all the Districts is set aside and will not be given effect to; (c) In furtherance to the show cause notice dated 14th March 2008 issued for black-listing to which the Petitioner admittedly has already filed a reply, the Respondents will give a hearing to the Petitioner before passing the order and the Petitioner shall fully co-operate in the conduct and conclusion of the said enquiry; (d) The Respondents shall complete these proceedings within six weeks from the date of pronouncement of this judgment; 6 (e) The orders so passed by the Respondents in furtherance to this enquiry, if adverse to the interest of the Petitioner, shall not be given effect to for a period of two weeks from the date of passing such order; (f) In regard to the direction of the competent authority vide letter dated 25th May 2007 requiring the authorities to institute criminal proceedings against the Petitioner, the parties are left to proceed in accordance with law; (g) Any observation made in this Judgment is without prejudice to the rights and contentions of the parties and the authorities and/or the Courts will deal with the matters arising hereafter without being influenced by observations in this Judgment.” In terms of these directions, the respondents were to complete the proceedings within a period of six weeks from the date of pronouncement of the judgment dated 31-7-2008. The contempt petitioner had grievance about the manner in which the enquiry was being conducted by the respondents. Since the respondents did not complete the enquiry within six weeks’ period limited by the judgment dated 31-7-2008, the 7 petitioner filed this petition for taking action against the respondents under the Contempt of Courts Act and Article 215 of the Constitution. 8. The learned counsel for the petitioner submitted that Writ Petition No.3992 of 2007, which pertained to the cause of action, which arose in Buldana District, i.e. within the jurisdiction of this Court, was merely to be heard at the Principal Seat and had not been transferred to the Principal Seat. He submitted that merely because the Hon’ble the Chief Justice directed the petition to be heard at Mumbai, it does not follow that the jurisdiction in respect of the lis got transferred from this Bench to the Principal Seat and, therefore, irrespective of where the petition was decided, the jurisdiction to entertain the contempt petition could always be exercised by this Bench. He also submitted that as far as sitting of Judges at Nagpur under the provisions of Section 51 of the State Reorganisation Act, 1956 and Section 41 of the Bombay Reorganisation Act, 1960, the Judges sitting at Nagpur are Judges of the High Court of Bombay and, therefore, they could exercise jurisdiction in respect of contempt, if the cause of action had arisen within the districts over which Nagpur Bench has jurisdiction. 9. The learned Additional Government Pleader for the respondents, on the other hand, submitted that the cause of 8 action for filing a petition for contempt could be said to have arisen only at the place where the order was passed. She submitted that since the High Court is Court of record and since the record in respect of the proceedings concerned is at the Principal Seat, the Bench at the Principal Seat would alone deal with the disobedience of the order passed at the Principal Seat. 10. I have carefully considered the arguments advanced. There can be no doubt that the Supreme Court had not ordered transfer of the petitions from Nagpur and Aurangabad to Mumbai. It had only stated that it was open to the parties to move the Chief Justice for having the cases decided by one Bench. There can also be no doubt that had the petitions been transferred, ordinarily a contempt petition could have been filed only at the Principal Seat to which the petitions were transferred, applying the analogy of transfer of cases under Section 24 of the Code of Civil Procedure. 11. Both the learned counsel drew my attention to the two judgments of the Apex Court in State of Maharashtra v. Narayan Shamrao Puranik and others (Civil Appeal No.3379 of 1981), reported at (1982) 2 SCC 440, and AIR 1983 SC 46. The first is order dated 4-5-1982 and the second is order dated 25-10-1982. The appeal had arisen out of a judgment of this Court quashing a notification issued by the Chief Justice on 9 27-8-1981 appointing Aurangabad as a place where the Judges and Division Courts of Bombay High Court were to sit. The judgment reported at (1982) 2 SCC 440 briefly gave reasons for setting aside the judgment of the Bombay High Court stating that fuller reasons for the decision would follow. These fuller reasons were given on 25-10-1982, reported at AIR 1983 SC 46. It was observed, quoting a judgment of this Court, when income-tax references were sought to be transferred to the Principal Seat from Nagpur in the year 1958, that the Judges and Division Courts at a temporary Bench established under sub-section (3) of Section 51 of the State Reorganisation Act function as Judges and Division Courts of the High Court at the Principal Seat, and while so sitting at such a temporary Bench, they may exercise the jurisdiction and power of the High Court itself in relation to all the matters entrusted to them. 12. The judgment may not provide a solution to the problem, since it was in respect of Judges and Division Courts at a temporary Bench. Under Sections 51 and 59 of the State Reorganisation Act, 1956, the erstwhile High Court of Nagpur became the High Court of Madhya Pradesh and the jurisdiction of Bombay High Court was extended to the Vidarbha area of the State of Bombay. These provisions did not provide for a permanent Bench at Nagpur. It may, therefore, be reasonable to presume that from 1956 to 1960, the Bench at Nagpur was 10 a temporary Bench dealing with the matters assigned to the Judges and Division Courts sitting at Nagpur by the Chief Justice at Mumbai. 13. The Bombay Reorganisation Act, 1960 provided for a permanent Bench of Bombay High Court at Nagpur in Section 41 of the said Act. After establishment of such a permanent Bench, the inevitable consequence would be that the jurisdiction would be bifurcated. Therefore, ordinarily, the Court at the Principal Seat would not have jurisdiction over the matters arising out of areas to which the jurisdiction of a permanent Bench extends. For this purpose, the learned counsel for the petitioner placed reliance on a judgment of the Supreme Court in Rajasthan High Court Advocates Association v. Union of India and others, reported at AIR 2001 SC 416, which pertained to establishment of a permanent Bench of High Court of Rajasthan at Jaipur. In para 11 of the judgment, the Supreme Court observed as under : “11. The establishment of a permanent Bench at Jaipur and defining its territorial jurisdiction brought out a bifurcation of State of Rajasthan into two for the purpose of division of territorial jurisdiction of the High Court between the principal seat and the permanent Bench seat. The Chief Justice of the State cannot, thereafter, artificially or indirectly take 11 away the jurisdiction belonging to one and confer it on the other. Conferring a discretion on the Chief Justice to order any case or class or cases arising in any district within the territorial jurisdiction of permanent Bench at Jaipur shall be heard at Jodhpur cannot spell out a power to define where the cause of action shall be deemed to have arisen in a writ case.” As regards the distribution of the judicial work by the Chief Justice, the Supreme Court observed in para 13 as under : “13. Sub-section (2) abovesaid has to be read along with sub-section (1). It entrusts the Chief Justice with responsibility for distribution and conduct of the business of the High Court and to determine which Judge shall sit singly and which in a Bench. The responsibility entrusted carries with it, as necessary concomitant, the power needed in the Chief Justice to effectively fulfil the responsibility. The provision is what is popularly called, a power to frame a roster. This provision too does not vest the Chief Justice with power to enact an explanation as is in question. Roster is framed generally by identifying particular subject-matter or nature of cases which will be listed for hearing before different 12 Benches consistently with the rules of business of the Court. Thereafter listing of cases is to be done by the Registrar in a routine. Power to frame a roster vests the Chief Justice with an administrative control over the distribution of judicial work of the Court. It has nothing to do with how a Judge would then judicially function in dealing with a case listed before him as per roster. A writ case when listed before a Judge for hearing as per roster may be heard or refused to be heard by him depending on his opinion formed on the judicial side on the question whether the cause of action in that case arises within the territorial jurisdiction of the Bench seat or not. Whether or not a case arises in a district lying within the jurisdiction of bench seat – is a question to be decided judicially, in case to case, and not by an administrative order of the Chief Justice made generally.” 14. Quoting from an earlier judgment in Nasiruddin v. State Transport Appellate Tribunal, reported at AIR 1976 SC 331, the Court observed that the litigant has the right to go to a Court where part of his cause of action arises. The Court then upheld the order of the Division Bench of the High Court of Rajasthan that a permanent Bench at Jaipur shall have exclusive jurisdiction to hear the cases arising out of eleven 13 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. 15. The learned counsel for the petitioner submitted that in view of this, the Writ Petition No.3992 of 2007 though heard at Mumbai and decided by the order, disobedience of which is complained of, it must be taken to have been decided by this Bench and, therefore, this Court would have jurisdiction to entertain the petition. Now ordinarily had Writ Petition No. 3992 of 2007 alone been taken over by the orders of the Chief Justice for being heard at Mumbai, this contention may have been open. But here there are two petitions relating to cause of action arising in districts, which are within the jurisdiction of two different Benches of High Court. It is not that the order, disobedience whereof is complained, governs only Writ Petition No.3992 of 2007. It also governs Writ Petition No. 3868 of 2007, which was filed before Aurangabad Bench and which was taken over for hearing at Mumbai. 16. Rules 1 and 2 of Chapter XXXI of the Bombay High Court Appellate Side Rules would enable the Chief Justice in his discretion to order that a case arising in a district in Vidarbha shall be heard at Mumbai or a case arising in a district in Marathwada shall likewise be heard at Mumbai. The rules do not provide for directing that a case arising out of a 14 Marathwada district could be heard at Nagpur or a case arising in Vidarbha could be heard at Aurangabad. In view of the fact that the two writ petitions arose out of the jurisdictions of permanent benches at Nagpur and Aurangabad, if they had to be heard together, such hearing could have taken place only at the Principal Seat in view of Rules 1 and 2 of Chapter XXXI of the Bombay High Court Appellate Side Rules. 17. The learned Additional Government Pleader for the respondents submitted that in High Court of Judicature at Allahabad through its Registrar v. Raj Kishore and others, reported at AIR 1997 SC 1186, the Supreme Court had considered the question of jurisdiction to deal with a contempt petition under Article 215 of the Constitution. Rule 4 of the Rules under the Contempt of Courts Act framed by the High Court of Allahabad provided for hearing of petitions for civil contempt by a Bench of Single Judge constituted for that purpose. A Division Bench of the High Court of Allahabad held that this Rule was ultra vires Article 215 of the Constitution inasmuch as it enables the Single Judge, to whom such work is assigned by the Chief Justice and who is other than the Judges, who have passed the concerned order, direction or judgment, to hear a petition alleging civil contempt. In other words, according to the Division Bench, a contempt petition could be entertained by the same Bench, whose order is 15 alleged to have been disobeyed. The Supreme Court considered the line of reasoning in the High Court’s order relating to the High Court being a Court of record and found that a Bench considering a contempt petition, could always call for the record and proceedings, which would be lying in the Court office, and rejected the view taken judicially by a bench of Allahabad High Court. 18. The learned Additional Government Pleader for the respondents submitted that the crux of the matter is availability of record for the Court dealing with petition for punishing contemner, and since such record would be available at the Principal Seat, where the petitions have been decided, this Court may not entertain the contempt petition. She also submitted that since the order, disobedience whereof is complained, has been passed in two petitions, one of whom arose out of jurisdiction of Aurangabad Bench, technically a party to the petition, which was originally before Aurangabad Bench, could file a contempt petition before that Bench, just as the petitioner has chosen to approach this Bench. If this Court were to uphold the jurisdiction of this Bench to entertain the contempt petition, on the same analogy, Aurangabad Bench too would have jurisdiction to entertain a contempt petition in respect of the same order. This, in view of the learned Additional Government Pleader, could not only give rise to a possibility of conflicting orders, but also a difficulty in 16 accessing the record of the proceedings of writ petitions and would again lead to a situation, which made the Apex Court observe that it was open to the parties to move the Chief Justice for having the petitions heard at one place. She submitted that whether any such petition complaining disobedience is filed before Aurangabad Bench or not, is not material, since an order by this Court holding that it has jurisdiction to entertain such a contempt petition could create a situation which has potential of giving rise to a conflict of jurisdictions. This contention of the learned Additional Government Pleader is unexceptionable. 19. In the result, I hold that the jurisdiction in respect of complaint of disobedience of an order passed at the Principal Seat could be exercised by the Judge dealing with contempt petition at the Principal Seat and not at this Bench. Also propriety demands that such a petition may not be heard at this Bench, since a similar petition could also be filed before Aurangabad Bench. 20. In view of this, the Registry shall place this petition before the Hon’ble the Chief Justice for being assigned to appropriate Bench. JUDGE pdl.