1. By an order dated January 11, 2011 the Division Bench of this Court rejected the petitioners application for contempt alleging violation of an order passed by a Division Bench on June 28, 2005. The only ground for dismissing the said application was that the same was filed beyond the period of limitation as prescribed under S. 20 of the Contempt of Courts Act. That order gave rise to the filing the present application for review and a tedious argument thereafter. In the application for review it was alleged that one Ashutosh Kundu, since deceased, was the father of the petitioner and had onefourth share of land in a certain Mouza and three-fourth share of land as licensee.
2. The Revenue Officer, Block Land & Land Reforms Officer, Minakha Block, by a notice dated March 8, 1995 initiated a proceeding under S. 14 T (3) of the West Bengal Land Reforms Act for determination of the ceiling area. The late Ashutosh Kundu filed a writ petition before this Court inter alia against the said proceeding as well as challenging the said provision as ultra vires the Constitution of India. The writ petition was disposed of on May 3, 1995 from which an appeal was preferred by him before the Division Bench along with an application for stay. The Division Bench disposed of the application on June 28, 1995 directing the writ petitioner to file a return in from 7AA of the West Bengal Land Reforms Act within three weeks from the date of the order and the respondents were directed to consider the same in accordance with law within four weeks from the date of filing of such application. The respondents were given liberty to proceed with and conclude the proceeding and to pass final order but the same was not to be given effect to until further order of this Court and the parties were directed to maintain status quo as on the date of the order as regards possession of the land till the disposal of the appeal or until further order of the Court.
3. The petitioners allegation is that a return in the requisite form was sent by post on July 6, 1995 which was received by the Block Land and Land Reforms Officer on July 10, 1995. The Block Land and Land Reforms Officer disposed of the case under S. 14 T (3) of the West Bengal Land Reforms Act whereby it was inter alia declared that 150.83 acres of land had been vested in the State of West Bengal free from all encumbrances. Late Ashutosh Kundu died on April 13, 2004 leaving behind a Will in favour of his son, i.e. the petitioner herein whose application for the grant of probate was allowed on January 9, 2008. The present petitioner was substituted on November 28, 2008. The application for contempt of court was filed on December 17, 2008.
4. The specific case of the petitioner is that the delay in filing the application thus was beyond his control as the late Ashutosh Kundu had died on April 13, 2004 and the substitution was allowed more than four years thereafter. And as such the petitioner prayed for a review of the order dismissing the application for contempt on the ground of delay. The preliminary question that arose in the present application was whether a review of the order dismissing an application for contempt was at all maintainable. We are not required to enter into the merits of the review application if the preliminary question is answered in the negative. Contempt of Courts Act does not contain any provision for review of an order passed under it.
5. At the time of hearing of this application it was made absolutely clear by the court to the learned Advocate for the petitioner that review is a creature of the statute and unless the statute concerned specifically or by necessary implication confers any right upon a court to review its earlier order, a court cannot assume any jurisdiction by exercise of its inherent power. Without either of these a court cannot arrogate to itself any power not conferred on it by law. As early as in 1965, a three-Judge Bench of the Honble Supreme Court in the case of Patel Chunibhi Dajibha-vs-Narayanrao Khanderao Jambkar and another, reported in AIR 1965 S.C. 1457, had, in the context of Bombay Tenancy and Agricultural Lands Act 1948, clearly held that the said Act did not empower the Collector to review an order passed by him under S. 76 A of the said Act. In the absence of any power of review the collector could not subsequently reconsider his previous decision and hold that there were grounds for annulling or reversing Mahalkaris order.
6. Again another three Judge Bench of the Honble Supreme Court in the case of Harbhajan Singh-vs-Karam Singh, reported in AIR 1966, S.C. 641 had held that there was no provision in the East Panjab Holdings (Conciliation and Prevention of Fragmentation) Act 1948 granting express power of review to the State Government with regard to an order made under S. 42 of the said Act. The Honble Supreme Court had very specifically held that in the absence of any such express power the Director, Conciliation of Holdings, could not review his previous order of dismissing the application of the petitioner therein under S. 42 of the Act. In Patel Narishi Thakershi and Ors.-vs-Pradyuman Singhji, Arjun Singhji, reported in AIR 1970 S.C. 1273 again a three-Judge Bench of the Honble Supreme Court had very specifically held that the power of review was not an inherent power and it must be conferred by law either specifically or by necessary implication.
7. In the context of Saurashtra Land Reforms Act 1951, Their Lordships held that no provision of the said Act was brought to Their Lordships notice from which it could be gathered that government had power to review its own order. This judgment was followed as late as in 2000 in the case of Lily Thomas-vs- Union of India, reported in AIR 2000 S.C. 1650. There also the Honble Supreme Court reiterated the very well settled principle of law that review is a creature of a statute and is not an appeal in disguise. The Supreme Court had also very specifically held that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. This being the settled law, the submissions on behalf of the petitioner that the Court in exercise of inherent jurisdiction can review its order is entirely misplaced.
8. In such view of the matter the judgment relied on by the petitioner in the case of Bimal Kumar Ghosh and another-vs-Badal Chandra Dutta, reported in 1975 (1)C.L.J. 71, for a proposition that even if the provisions O. 47 R. 1 of the Code of Civil Procedure has no application to a contempt proceeding, to prevent miscarriage of justice a court has an inherent power to rectify its own order when the error arises out of a misapprehension as to a material fact. This does not, we hold with profound respect, represent the correct legal position in view of the judgments of the Supreme Court mentioned earlier. Apart from the fact that there was no misapprehension as to any material fact in this case, we in dismissing the application for contempt did not enter into the merits of the case but dismissed the application for contempt on the ground of its limitation.
9. The petitioner further relied on the decision reported in Bank of Baroda-vs-Sadruddin Hasan Daya and another, reported in (2004) 1 S.C.C. 360, in support of his case that limitation in a contempt proceeding is to be counted from the date of knowledge. In that case a suit for recovery of money was filed by Bank of Baroda against the respondents and the same was decreed at the appellate stage before the Honble Supreme Court on the basis of a settlement. There the respondents gave an undertaking that three specified properties should remain under attachment and should not be sold, mortgaged, encumbered or charged to anyone. However, in a subsequent suit the respondents entered into a settlement on October 5, 1999 and placed the same properties under attachment till satisfaction of the decree in the said suit. In the subsequent suit a consent decree was also passed. Bank of Baroda filed an application for contempt in May 2001 stating therein that it was only in January 2001 that it came to know about the subsequent settlement and consent decree.
10. The petitioners filed an application for contempt within five months of getting knowledge of the undertaking given by the respondents in the other suit. In this factual situation the Honble Supreme Court held that the proceedings initiated against the respondents could not be held to be barred by limitation in view of the law laid down by the Court in the earlier case of Pallav Shet-vs-Custodian, reported in (2001) 7 S.C.C. 549 wherein it was held that the period of limitation in a case like the one before the Honble Supreme Court had to be counted from the date of knowledge. It goes without saying that the facts of that case have no application to or resemblance with the facts of the present case. That was a decision on the starting point of the period of limitation in a proceeding for contempt. Here, as indicated by us earlier, we are for the present concerned with whether a review of an order passed under the Contempt of Courts Act is at all maintainable. The question of entering to in the merits will depend upon the answer to this preliminary point.
11. The petitioner further relied on the case of Rina Mukherjee-vs-New India Assurance Company Ltd., reported in 2008 (2) WBLR 130. This is a Division Bench judgment of our Court which clearly does not apply to the petitioners case. The Division Bench while relying on the case of Patel Narshi Thakershi (Supra) for a proposition that review is a creature of a statute like the provision of an appeal and in order to exercise such power a court is to see that such power is conferred by law either specifically or by necessary implication, laid down that a court or tribunal had an inherent jurisdiction to review its own order if such a review was a procedural one, i.e. necessitated for the correction of a mistake or fault on the part of the tribunal resulting in prejudice to a litigant. It is obvious that the review sought for by the petitioner in this case is not a procedural one and there has not been any mistake or fault on the part of the court which is to be corrected by exercise of inherent power.
12. As such this judgment has also no application. The petitioner further relied on a decision of Subrata Kundu-vs-Khiti Goswami and others, reported in 2010 (1) C.H.N. 306. This again is a Division Bench judgment of our court wherein it has been held that in a contempt proceeding provisions of Ss. 5 and 17 of the Limitation Act apply as there is no provision in the Contempts of Courts Act to exclude applicability of S. 5 of the Limitation Act. It is true that the Honble Supreme Court has also held that by reason of S. 29 (2) of the Contempt of Courts Act read with S. 3 of the Limitation Act, the provision contained in S. 5 of the Limitation Act applies to appeals filed against orders of a single judge in contempt proceedings. However, in the present case the petitioner did not file any application for condonation of delay for initiating the contempt proceeding nor was there any prayer in the application for contempt to that effect. Such being the undisputed position, the question whether the provisions of S. 5 of the Limitation Act applies to contempt proceedings is an academic issue and is entirely irrelevant from the petitioners point of view. The petitioner has also relied on a Division Bench judgment of the Orissa High Court of Kshetrabani Mohantyvs-State of Orissa and others, reported in 1993 Crl. L.J. 271 for a proposition that where a High Court convicts and sentences a contemner for contempt of itself, it can review its order in exercise of its inherent jurisdiction. This judgment too has no application for obvious reasons.
13. The Division Bench relied on the decision of the earlier judgments of the Honble Supreme Court that the Code of Criminal Procedure did not apply to a contempt matter tribal by High Court. It was in this context that the Orissa High Court held that the bar of S. 362 of the Code of Criminal Procedure also did not apply. Since the case in hand is not a criminal contempt, the ratio of this case does not apply to the facts of the present one. The observation of the Honble Supreme Court that in a contempt matter High Court can deal with it summarily and can adopt its own procedure, as relied upon by the Orissa High Court, does not mean that it has the power of review in exercise of its inherent jurisdiction. On this point we respectfully differ from the view of the Orissa High Court. Even if the bar of review by a criminal court as provided in S. 362 of the Code of Criminal Procedure is removed, a High Court cannot assume its authority to review an order unless specifically provided for by the Code. We have already discussed the highest authority on this point. They need not be pointlessly repeated over again. Thus the judgments cited by the learned Advocate for the petitioner do not help his client and all the contentions of the petitioner must fail. We thus find that the petitioners application for review is not entertainable. The strenuous effort at the bar to make it entertainable is devoid of all merits and the application is dismissed.
14. Before we part with, it is necessary to mention one more thing. While we are appreciative of any new and ingenious submission from the Bar provided it is relevant, we do not find any reason why a petitioner must adopt an unyielding and pertinacious approach and try to justify something which is unjustifiable and vainly labour to sustain the unsustainable. We do not approve of this practice. Urgent Xerox certified copy, if applied for, will be supplied within seven days from the date of the application.