# Bhartiya Khadya Nigam Mazdoor Sangh Sangarsh Samiti v. Mr. Ashok K.K. Meena, M.D. & Ors

- **Citation:** (2024) 1 ILRA 344
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Contempt Application (Civil) No. 2276 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhartiya-khadya-nigam-mazdoor-sangh-sangarsh-samiti-v-mr-ashok-k-k-meena-m-d-ors-51155
- **Pages:** 5

## Headnote

order dated 06.04.2023, which rejected the
contempt application on merits - Held, the recall
1 All. Bhartiya Khadya Nigam Mazdoor Sangh Sangarsh Samiti Vs. Mr. Ashok K.K. Meena,
 M.D. & Ors.
345
application was essentially a review application,
which is not maintainable under the Contempt
of Courts Act, 1971, as it lacks provisions for
review. (Paras 3, 12, 19, 20)

B. Distinction Between Infructuous and
Merits-Based Dismissal - The applicant
relied on Dr. J.S. Yadav Vs Dr. Anil Kumar
Upadhyay to argue that recall is permissible -
Held, the case was inapplicable as it involved a
contempt petition dismissed as infructuous due
to misrepresentation, whereas the present case
was decided on merits after considering
pleadings and arguments. (Paras 6, 9, 10, 11)

C. No Power of Review Under Contempt
of Courts Act, 1971 - The respondents
objected that the Contempt of Courts Act,
1971, does not provide for review or recall of
orders - Held, as per Delhi Administration Vs
Gurdip Singh Uban and Sharwan Kumar Vs
Harminder Raj Singh, review or recall is a
statutory remedy not available under the Act,
and the application was an impermissible
attempt to re-argue the case. (Paras 15, 16,
17, 19)

D.
Misrepresentation and
Fraud
Not
Established - The applicant argued that the
order
dated
06.04.2023
was
based
on
misrepresentation and incorrect facts - Held,
the order was passed after due consideration
of pleadings and arguments, and no evidence
of fraud or misrepresentation was shown to
justify recall. (Paras 4, 11, 14)

E. Judicial Precedent
on
Review in
Contempt Proceedings - The court relied on
Mahaveer
Prasad
Verma
Vs
Central
Administrative Tribunal and St. Vs Baldev Raj
to affirm that the Contempt of Courts Act,
1971, impliedly excludes the power of review
or recall, reinforcing that the recall application
was not maintainable. (Paras 16, 18)

Recall Application Rejected.

List of Cases cited:

## Text

344 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction of the Arbitrator, which such
issue however, should be raised before the
Arbitrator under Section 16 of the Act,
1996. Therefore, a party, aggrieved by the
award, not having taken any of the
measures provided in the Act, 1996, is
barred in law to challenge the validity or
legality of the award at the execution stage
when such award is put into execution
underSection 36of the Act, 1996. Thus, the
application filed by the opposite party
under Section 47 of the Code of Civil
Procedure challenging the legality and/or
validity of the award on diverse grounds,
was not maintainable, and thus the District
Judge did not commit any illegality by
rejecting the same.

32. This Court by means of order
dated 01/09/2016 passed in First appeal had
merely directed the District Judge to
dispose of the objections pending before
him. The District Judge has rejected the
same as being not maintainable. The order
of the High Court stands complied with by
passing of the impugned order. By merely
directing the District Judge to dispose of
the objections, the order of this Court
cannot be interpreted in a manner as if he
was directed to assume jurisdiction and
decide objection raised by revisionist on
merits which jurisdiction was not available
to him under law.Thus, the submissions
advanced by Mr Pritish Kumar, learned
Advocate for the revisionist, assailing the
order dated 30/01/2019 rejecting the
application filed by the revisionist under
Section 47 of the Code of Civil Procedure,
are devoid of any merit and accordingly
rejected.

33. Considering the above discussion,
this Court is of the considered view that the
District Judge had rightly exercised his
jurisdiction and rejected the objections filed
by the revisionist under Section 47 of the
Civil Procedure Code. This Court also
affirms the view taken by the coordinate
Bench in the case of Larsen and Toubro
Limited vs Maharaji Educational Trust
passed in Civil Revision No. 213 of 2010
(decided
on
24/09/2010)
which
has
subsequently been affirmed by another
coordinate Bench of this court in the case
of Sanjay Gupta Vs. Suresh Kumar
Mishra, 2023 (7) ADJ 747 (LB). The
objections to the award ought to have been
raised by the revisionist before the District
Judge under Section 34 of Act of 1996 and
could not have been allowed to be raised in
execution proceedings once the award
became final and attained finality as a
decree of the Civil Court. Accordingly, the
writ petition is bereft of merits and is
dismissed. The interim order is vacated.
----------
(2024) 1 ILRA 344
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.01.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Contempt Application (Civil) No. 2276 of 2022

Bhartiya Khadya Nigam Mazdoor Sangh
Sangarsh Samiti ...Applicant
Versus
Mr. Ashok K.K. Meena, M.D. & Ors.
 ...Respondents

Counsel for the Applicant:
Syed Haseen Ahmad

Counsel for the Respondents:
Dev P:rakash Singh, Satish Kumar Misra,
Shikhar Anand

Contempt Application - Recall Application
Rejected - The applicant sought recall of the
order dated 06.04.2023, which rejected the
contempt application on merits - Held, the recall
1 All. Bhartiya Khadya Nigam Mazdoor Sangh Sangarsh Samiti Vs. Mr. Ashok K.K. Meena,
 M.D. & Ors.
345
application was essentially a review application,
which is not maintainable under the Contempt
of Courts Act, 1971, as it lacks provisions for
review. (Paras 3, 12, 19, 20)

B. Distinction Between Infructuous and
Merits-Based Dismissal - The applicant
relied on Dr. J.S. Yadav Vs Dr. Anil Kumar
Upadhyay to argue that recall is permissible -
Held, the case was inapplicable as it involved a
contempt petition dismissed as infructuous due
to misrepresentation, whereas the present case
was decided on merits after considering
pleadings and arguments. (Paras 6, 9, 10, 11)

C. No Power of Review Under Contempt
of Courts Act, 1971 - The respondents
objected that the Contempt of Courts Act,
1971, does not provide for review or recall of
orders - Held, as per Delhi Administration Vs
Gurdip Singh Uban and Sharwan Kumar Vs
Harminder Raj Singh, review or recall is a
statutory remedy not available under the Act,
and the application was an impermissible
attempt to re-argue the case. (Paras 15, 16,
17, 19)

D.
Misrepresentation and
Fraud
Not
Established - The applicant argued that the
order
dated
06.04.2023
was
based
on
misrepresentation and incorrect facts - Held,
the order was passed after due consideration
of pleadings and arguments, and no evidence
of fraud or misrepresentation was shown to
justify recall. (Paras 4, 11, 14)

E. Judicial Precedent
on
Review in
Contempt Proceedings - The court relied on
Mahaveer
Prasad
Verma
Vs
Central
Administrative Tribunal and St. Vs Baldev Raj
to affirm that the Contempt of Courts Act,
1971, impliedly excludes the power of review
or recall, reinforcing that the recall application
was not maintainable. (Paras 16, 18)

Recall Application Rejected.

List of Cases cited:

1. Dr. J.S. Yadav Vs Dr. Anil Kumar Upadhyay,
Special Appeal No. 110 of 2022, decided on
27.04.2022
2. Delhi Administration Vs Gurdip Singh Uban,
(2000) 7 SCC 296

3. Sharwan Kumar Vs Harminder Raj Singh,
Contempt Petition No. 1591 of 2000, decided on
09.02.2016

4.
Mahaveer
Prasad
Verma
Vs
Central
Administrative Tribunal, 2013 (31) LCD 351

5. St. Vs Baldev Raj, 1991 SCC OnLine All 1070

6. Harbhajan Singh Vs Karam Singh, AIR 1966
SC 641

7. Vijai Bahadur Vs St. of U.P., 1988 (14) ALR
706

8. Ram Jiwan Singh Vs District Inspector of
Schools, Kanpur, 1995 (26) ALR 627

9. New India Assurance Co. Ltd. Vs Smt. Bimla
Devi, 1998 (33) ALR 456

10.
Smt.
Shivraji
Vs
Dy.
Director
of
Consolidation, Allahabad, 1997 (88) RD 562

11. Patel Narshi Thakershi Vs Pradyumansinghji
Arjunsinghji, AIR 1970 SC 1273

12. Dr. (Smt.) Kuntesh Gupta Vs Mgt. of Hindu
Kanya Mahavidyalaya, Sitapur, 1987 (13) ALR
680

13. Laxman Purushottam Pimputkar Vs St. of
Bombay, AIR 1964 SC 436

14. Patel Chunibhai Dajibha Vs Narayanrao
Khanderao Jambekar, AIR 1965 SC 1457

(Delivered by Hon'ble Abdul Moin, J.)

(I.A. No. 5 of 2023 in re: Application
for Recall of the Order)

1. Heard Shri Syed Haseen Ahmad,
learned counsel for the applicant as well as
Shri Shikhar Anand, learned counsel for all
the opposite parties.
346 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This is an application for recall of
the order dated 06.04.2023 passed by this
Court.

3. This Court, vide order dated
06.04.2023, after hearing both the counsels
for the contesting parties had rejected the
contempt application on the ground that no
case for contempt is made out.

4. Instant application for recall has
been filed on the ground that there are
various documents available on record
which have not been considered by this
Court and that the order passed by this
Court dated 06.04.2023 is passed on
misrepresentation and on incorrect facts
and thus the Court is vested with ample
power to recall the order.

5. A preliminary objection has been
raised by Shri Shikhar Anand, learned
counsel for all the opposite parties that the
order dated 06.04.2023 has been passed by
this Court while exercising the jurisdiction
of contempt in the contempt application
and the order has been passed on merits
and consequently the application for recall
of the order dated 06.04.2023 is in fact an
application for review of the order dated
06.04.2023
which
would
not
be
maintainable under Contempt of Court Act,
1971 (hereinafter referred to as "Act,
1971") and the rules made thereunder as the
Act, 1971 and the rules do not provide for
review of an order passed under the Act,
1971.

6. In response, Shri Syed Haseen
Ahmad, learned counsel for the applicant
has placed reliance on judgment and order
passed by Division Bench of this Court on
27.04.2022 in Special Appeal No. 110 of
2022 in re: Dr. J.S. Yadav Vs. Dr. Anil
Kumar Upadhyay and Others to contend
that the Division Bench of this Court, upon
a special appeal being filed against the
order whereby the contempt Court had
allowed a recall application, has held that
the Single Judge rightly passed the order of
recall.

7. The aforesaid argument though
attractive on the face of record merits
outright rejection inasmuchas the perusal of
the judgment and order passed by Division
Bench of this Court in the case of Dr. J.S.
Yadav (supra) would indicate that the
special appeal came to be filed when the
recall
applications
of
orders
dated
26.04.2012 and 28.08.2012 passed in
Contempt Case No. 716 of 2004 whereby
the contempt petition had been rejected as
infructuous, were allowed. The recall
applications therein had been filed on the
ground that there were misapprehension of
fact, the contempt application had not
become infructuous and that statement of
the learned counsel for the contempt
petition of a settlement between the
petitioners and the opposite party in the
contempt petition on the basis of which the
contempt
petition
was
dismissed
as
infructuous was only confined to two
contempt petitioners and not all petitioners.

8. Further, the Division Bench of this
Court in the case of Dr. J.S. Yadav (supra)
has itself noted that the order passed by the
Division Bench in the year 2001 had not
been complied with and consequently the
contempt petition could not have become
infructuous.

9. It has also been noted by the
Division Bench that the statement of the
counsel, as given in the contempt petition
of contempt petition having been rendered
infructuous was beyond his competence
and could not have been made in respect of
1 All. Bhartiya Khadya Nigam Mazdoor Sangh Sangarsh Samiti Vs. Mr. Ashok K.K. Meena,
 M.D. & Ors.
347
those contempt petitioners who had not
entered into any agreement inasmuch as
learned counsel for the applicants gave an
impression to the contempt Court that all
the contempt petitioners had settled the
matter which was nothing short of a
misrepresentation amounting to fraud.
Thus, the Division Bench held that the
contempt petition could not have been
dismissed
as
having
been
rendered
infructuous.

10. Considering the aforesaid, it is
thus apparent that the judgment passed by
Division Bench of this Court in the case of
Dr. J.S. Yadav (supra) would have no
applicability in the facts of the instant case.

11. In the instant case, it is not that the
contempt application had been rejected as
infructuous rather the contempt Court had
gone through the pleadings on record as
well as arguments raised by both the
counsels for the contesting parties and
thereafter found that no case of contempt
was made out and the contempt application
was rejected on merits.

12. There is a vast difference between
contempt application being rejected as
infructuous and contempt application being
decided on merits- an order by which
contempt application has been rejected as
infructuous is liable to be recalled in case
the applicant is is able to demonstrate that
the contempt application has not been
rendered infructuous while an order passed
on merits in a contempt application cannot
be recalled as no power of review is
conferred under the provisions of Act, 1971
read with rules made thereunder.

13. Now, the Court proceeds to
consider as to whether the contempt
petition has been decided on merits i.e.
after hearing all the contesting parties and
upon perusal of records and whether an
application for recall of the said order
would be maintainable.

14. The order dated 06.04.2023 for
which the application for recall has been
filed, as already indicated above, is not an
order by which either the contempt petition
had been dismissed for default or dismissed
as infructuous rather it is an order on the
merits of the case. Thus, an application for
recall filed by the applicant is in fact an
application for review as would be apparent
from a perusal of the averments made in
the affidavit filed in support of the
application
to
indicate
that
certain
documents, etc. have not been considered
by this Court.

15. The Apex Court in the case of
Delhi Administration vs. Gurdip Singh
Uban and others - (2000) 7 SCC 296 has
held that an application for; clarification,
modification or recall, in substance, is an
application for review.

16. It is settled proposition of law that
a review or an appeal is a statutory remedy.
In this regard, a coordinate Bench of this
Court in the case of Sharwan Kumar vs.
Harminder Raj Singh (IAS) passed in
Contempt Petition No.1591 of 2000,
decided on 09.02.2016 has held as under:-

"After hearing learned counsel for
parties and going through the record, the
first and foremost question to be considered
that if the contempt petition has already
been dismissed on merit then the whether
the application for recall of the said order
is maintainable or not ?

Answer to the said question finds
place in the Division Bench judgment of
this Court passed in the case of Mahaveer
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Prasad Verma Vs. Central Administrative
Tribunal, Lucknow and others, 2013 (31)
LCD 351, in paragraph No. 4 held as
under:-

"By the order dated 10.1.2012, the
contempt petition filed by the petitioner,
was dismissed in his absence on the ground
that the petitioner respondent has not
moved any application to bring on record
the successor since the contemner was
transferred.
Tribunal
noted
that
an
application for recall of an order passed in
a contempt proceeding, is not maintainable.
So far as the finding of Tribunal that
recall/review
application
is
not
maintainable,
seems
to
be
correct.
Virtually, recalling of the order dated
10.1.2012, will amount to review of earlier
decision was was passed with the finding
on merit to the extent that successor officer
has
not
been
brought
on
record.
Review/recall or appeal are the statutory
remedies,
vide
AIR
1966
SC
641,
Harbhajan Singh v. Karam Singh and
others, 1988 (14) ALR 706, Vijai Bahadur
Vs. State of U.P., 1995 (26) ALR 627, Ram
Jiwan Singh and others Vs. The District
Inspector of Schools, Kanpur and others,
1979 (5) ALR 168, 1998 (33) ALR 456,
New India Assurance Co. Ltd. Vs. Smt.
Bimla Devi and others, 1997 (88) RD 562,
Smt. Shivraji and others Vs. Dy. Director of
Consolidation, Allahabad and others, AIR
1970 SC 1273, Patel Narshi Thakershi and
others Vs. Pradyumansinghji Arjunsinghji,
1987 (13) ALR 680, Dr. (Smt.) Kuntesh
Gupta
Vs.
Mgt.
of
Hindu
Kanya
Mahavidyalaya, Sitapur etc., AIR 1964 SC
436, Laxman Purushottam Pimputkar Vs.
The State of Bombay and others, and AIR
1965 SC 1457, Patel Chunibhai Dajibha
etc. Vs. Narayanrao Khanderao Jambekar
and another. Unless provided under the
Act, no application for review/recall may
be moved. The contempt of Courts Act,
1971 does not contain any provision for
review of a judgment. Hence the impugned
order dated 13.9.2012 does not seem to
suffer from any impropriety or illegality""

17. Apart from above, there is no
power under the Act of 1971 conferring any
power of review and thus no such power
can be exercised by this Court.

18. A Division Bench of this Court in
the case of State vs. Baldev Raj - 1991
SCC OnLine All 1070 has also held that
the Act of 1971 impliedly excludes the
power of recall or review.

19. Keeping in view the aforesaid
discussion, this Court is constrained to
observe that instant application for recall is
nothing but an attempt to re-argue of the
case on merits i.e. the recall application is
in fact an application for review which is
not permissible in the eye of law.

20. The recall application is thus,
rejected.
----------
(2024) 1 ILRA 348
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSJAIN RIZVI,
J.

Capital Cases No. 8 of 2020
with
Reference No. 7 of 2020
&
Criminal Appeal U/s 372 No. 21 of 2021

Amit Yadav ...Appellant
Versus
State of U.P. ...Respondent