Abdul Mahmood vs Advocate General and Others

Amitava Lala, J.—This writ petition has been filed before this Court with the following prayers:

(i) Issue writ, order or direction in the nature of mandamus, directing learned Advocate General U.P., to decide the application filed by the petitioner and proforma respondents on 8.9.2008, u/s 15(1)(b) of the Contempt of Courts Act against respondent Nos. 2, 3 and 4;

(ii) Issue any other suitable writ, order or direction which this Hon''ble Court may deem fit and proper under the facts and circumstances of the case; and

(iii) Award the cost of this petition.

Writ petition has been strongly opposed by the learned Chief Standing Counsel of the State as well as Allahabad Development Authority, Allahabad by making various submissions including the maintainability of the writ petition and the order.

The case before us is that the suit is pending before the appropriate civil court. An application for injunction was also made, but no order was passed. According to the Allahabad Development Authority, the order of the learned single Judge evicting the petitioner was confirmed by the Division Bench of this Court and the SLP was dismissed by the Supreme Court. The question has been raised about the maintainability of the writ petition and scope and ambit of Section 15 of the Contempt of Courts Act, 1971 (hereinafter in short called as the ''Act'').

From the plain reading of Section 15 of the Act it appears that in the case of criminal contempt the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate General or any other person, with the consent in writing of the Advocate General, amongst other conditions prevailing therein. There is no scope for the Advocate General to decide the application, as prayed for. He is only empowered to give consent in writing for making a criminal contempt which is in the nature of leave. We cannot compel the Advocate General in the writ jurisdiction to grant such leave, which is his independent view. Even thereafter the Court can take cognizance suo motu if no leave is there, provided such case is cognizable in nature.

However, in this case cause of criminal contempt is arising out of a proceeding in the subordinate court. Hence, by virtue of Section 15(2) of the Act, in the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court irrespective of leave or permission of the Advocate General. Power of the subordinate court to make a reference and the power of the Advocate General to grant leave are disjunctive in nature.

Therefore, we cannot pass any affirmative order in favour of the petitioner. Hence, the writ petition is dismissed, however, without imposing any cost.

In any event, passing of this order will no way affect the right of the petitioner from proceeding before the subordinate court, if he chooses to do so and if so advised.

Rajes Kumar, J.

I Agree.