J.M.L. Sinha, J. - (1.) THE contemners opposite parties have been called upon to show cause why they should not be punished for having committed contempt of this Court. The facts leading upto the issue of the notice can be stated as below :- Sarvasri Hargovind Dayal Srivastava and Hargun Sharan Srivastava, Contemners Nos. 1 and 2 respectively, are members of the Avadh Bar Association. The former is the President of that Association and holds a position of eminence. Contemners Nos. 3, 4 and 5 are printers and publishers of the National Herald, the Pioneer and the Northern India Patrika respectively. The first named the two papers are published at Lucknow and have an extensive circulation in this State. The Northern India Patrika is published at Allahabad. As is well known, till 1948 the Allahabad High Court and the Chief Court at Lucknow had separate identity. In 1948 came the U. P. High Courts Amalgamation Order by which the High Court in Allahabad and the Chief Court in Oudh were amalgamated to constitute one High Court by the name of the High Court of Judicature at Allahabad. A Bench of this Court was retained at Lucknow. Since then there has been controversy regarding the jurisdiction of the Bench at Lucknow and of this Court as sitting at Allahabad. Sri S. K. Verma assumed the office of the Chief Justice of this Court in 1971 and representations were then made to him as well regarding the same matter. In the meantime the question of jurisdiction of the Bench at Lucknow came up for consideration before a Full Bench of this Court in the case Nirmal Das Khaturia v. State Trans. Trib., U. P., 1972 All LJ 70 : (AIR 1972 All 200) (FB). Thereafter representations were again made to Sri S. K. Verma, the then Chief Justice to take action in conformity with the decision of the Full Bench. It appears that an Action Committee had been formed by the Avadh Bar Association to pursue the matter on or about February 3, 1973, the Avadh Bar Association passed a resolution demanding immediate amendment of the High Court Amalgamation Order and stating that the Amalgamation Order vests the Chief Justice with power to transfer cases of the territory of Avadh to Allahabad, which in practical working has been abused and misused. The abovementioned portion of the resolution was printed and published in the National Herald dated February 4, 1973, in the following manner :- 'It demanded the immediate amendment of the High Court' Amalgamation Order which vests the Chief Justice with power to transfer cases of the territory of Avadh to Allahabad, 'which in practical working has been abused and misused." On April 18, 1973, the Chief Justice issued a fresh notification under Clause 14 of the Amalgamation order giving exclusive jurisdiction to the Lucknow Bench on nine districts of Avadh. The notification, however, further said that cases pertaining to the three districts of Faizabad, Sultanpur and Partapgarh could be entertained and disposed of either at the Lucknow Bench or in the Court at Allahabad. This notification failed to satisfy the members of the Avadh Bar. One of the members of the Avadh Bar was reported to have expressed that the notification had been issued to befool the lawyers and the litigant public of Avadh. The sentiments expressed by the members of the Avadh Bar got wide publicity through a news item in the Pioneer dated April 20, 1973. The impugned portion of the news item reads as follows :- "The notification has been issued to befool the lawyers and the litigant public of Avadh." On May 3, 1973 the Action Committee passed a resolution, which inter alia said : "The Action Committee is of the opinion that the Chief Justice is acting in the discharge of administrative power under Clause 14 of the U. P. High Courts Amalgamation Order, 1948 in a most partisan manner under the influence of Allahabad Bar quite unbecoming of the office which he holds." The news item regarding the passing of the aforesaid resolution was published in the National Herald and the Northern India Patrika dated May 6, 1973. The National Herald published the latter portion of the resolution in the following manner :- "It also said that the Chief Justice had acted in a partisan manner while exercising his powers under Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, presumably influenced by or under the pressure of the Allahabad Bar." The Northern India Patrika reported in the following manner :- "The Action Committee he said was of the opinion that "the Chief Justice was acting in a most partisan manner under the influence of Allahabad Bar."
(2.) ON May 18, 1973. Sri G. H. Verma, Honorary Secretary, High Court Bar Association, Allahabad, lodged an application in this Court bringing to its notice the earlier mentioned resolutions and the publication thereof in the National Herald, the Pioneer and the Northern India Patrika. The application said that the contemners (opposite parties) were guilty of having committed contempt of this Court in passing and publishing the aforesaid resolutions and may be punished accordingly. Under orders of then Chief Justice this application was listed before one of us, who then was sitting on the Bench which dealt with contempt cases. Since, however, the allegations contained in the application amounted to criminal contempt and a Single Judge could not take cognizance of it, it was directed that the matter be laid before the Chief Justice for nominating a Bench of two Judges for its disposal. The application was then directed to be listed before the life imprisonment Bench consisting of two Judges. On August 17, 1973, that Bench directed issue of notice to contemners 2 to 4. At a later stage on 18th of February, 1974, when the matter came up before us, we, recorded the statement of Hargur Charan Srivastava (Contemner No. 2) and, in view of the material contained in his statement, we passed an order the same day directing that show cause notice may also issue to contemner No. 1. It is thus that all the contemners have appeared before this Court to show cause against the notice issued to them. The contemners have filed separate counter-affidavits raising a number of pleas. Learned Counsel appearing for cpntemner No. 1 and contemner No. 5, raised some fresh pleas during their arguments before us. The legal pleas raised on behalf of the contemners in the counter-affidavits and in the arguments made on their behalf can be enumerated as follows :- (1) That the jurisdiction to try the present case lies with the Bench at Lucknow and that this Court has no jurisdiction to try it. (2) That the Contempt of Courts Act, 1971, is a new Act. The rules contained in the Rules of Courts cannot be applied to it. In the absence of rules it was the Full Court only which could direct issue of notice. (3) That while the High Court can take action to punish its contempt suo motu, a private individual cannot move the Court except with the consent or authority of the Advocate-General. Since Sri G. N. Verma has moved the application without the intervention of the Advocate-General, the Court could not take cognizance on that application, nor could it be utilised to act suo motu. The contention further is that the Court having acted on that application, the entire proceedings are without jurisdiction. (4) That the notification issued by the Hon'ble Chief Justice under High Courts Amalgamation Order was illegal, being contrary to the Full Bench decision of this Court and consequently did not exist in the eye of law. The contention further is that therefore anything said about it cannot amount to contempt. (5) That when the Chief Justice acts under Clause 14 of the High Court' Amalgamation Order, he exercises a legislative power and that anything said about the exercise of such a power by the Chief Justice cannot amount to contempt. Article 19 of the Constitution was also invoked. (6) That the constitution and organisation of High Courts fall under Item 78 of the Union List while Administration of Justice falls under Item 3 of the State List. The Amalgamation Order, having been passed by the centre, related to constitution and organisation of court and not to administration of justice and consequently the order passed by the Hon'ble Chief Justice under Clause 14 will also relate to constitution and organisation of courts and not to administration of justice. The contention further is that therefore anything said about the Hon'ble Chief Justice in that regard cannot attract application of any of the clauses of Section 2 of the Contempt of Courts Act, 1971. (7) That the Chief Justice, acting under Clause 14, acts as a persona designata and not as Chief Justice and, therefore, anything said about him in connection with exercise of his power under Clause 14 cannot amount to contempt of court. (8) That under Clause 14 of the High Courts Amalgamation Order it is none of the duties of the Chief Justice to hold negotiations with the members of the Bar. The fact that he was having negotiations with the Bar should lead to the conclusion that he was not acting as Chief Justice but otherwise and, consequently, anything said about him should not amount to contempt. (9) That the impugned resolutions were passed in the background stated in the counter-affidavit of contemner No. 1, that they related to non-judicial acts of the Hon'ble Chief Justice and, in view of the law laid down by this Court in the case of Rex v. B. S. Nayyar, AIR 1950 All 549, the resolutions in question are not punishable as they do not amount to contempt of this Court. (10) That the decision of the Supreme Court in the case of Baradakanta Mishra v. The Registrar of Orissa High Court. AIR 1974 SC 710 only lays down that when the 'Court' sits in disciplinary proceedings against subordinate judicial officers it does an act in the administration of justice and if intemperate language is used against the Court while acting in that capacity so as to undermine its authority or prestige, the Court can take action under the Contempt of Courts Act. According to learned Counsel, however, that case should not be taken to be an authority for the view that intemperate language used about an administrative or legislative act of the Chief Justice, as distinguished from that of the Court, shall also amount to contempt.
(3.) WE propose to deal with the aforesaid points in the order in which they have been stated.;