Sukumar Bhattacharya, Piyali Shaw, Ashok Chakraborty, Aparna Banerjee

Debangsu Basak, J

The contempt petitioner has sought recalling of an Order dated August 31, 2018 passed in C.P.A.N. 1509 of 2009.

Learned Advocate appearing in support of the application has submitted that, the applicant was not represented on August 31, 2018 when the

contempt petition was taken up for hearing. He has submitted that, the Advocate-on-Record for the applicant was unable to attend the Court for the

period from August 20, 2018 to September 3, 2018 due to the medical condition of the son of such Advocate-on-Record. Therefore, according to him,

the applicant having shown sufficient cause for recalling of the Order dated August 31, 2018, such Order should be recalled.

Learned Advocate appearing for the applicant has submitted that, the petitioner filed the contempt petition complaining of violation of the Order dated

August 11, 2008. Such Order remaining uncomplied with, the applicant had filed the contempt petition being C.P.A.N. 1509 of 2009. On August 31,

2018 the alleged contemnor had contended that, the Order dated August 11, 2008 stood complied with in view of the writing dated March 23, 2017.

He has submitted that, the Order dated August 11, 2008, inter alia, directed the respondents in the writ petition to calculate all arrear rent and/or

licence fees and to serve upon the writ petitioner an appropriate notice indicating the amount of rent and/or licence fees which became due and

payable by the writ petitioner to the respondents. According to him, the respondents did not do so. The Order dated August 11, 2018 remains

uncomplied with.

Learned Senior Advocate appearing for the alleged contemnor has submitted that, the application is not maintainable. He has relied upon 1999 Volume

4 Supreme Court Cases page 396 (Budhia Swain & Ors. v. Gopinath Deb & Ors. )in support of his contentions. He has referred to the merits of the

case and submitted that, the letter dated March 23, 2017 is sufficient compliance with the Order dated August 11, 2008 and therefore, the Order dated

March 31, 2018 need not be recalled.

Petitioner has claimed to be appointed as a refreshment room contractor at Rampurhat Railway Station. She had filed W.P. No. 19288 (W) of 2003

challenging a notice dated December 4, 2003 by which a sum of Rs. 3,25,137.43 was claimed by the Railway Authorities. Such writ petition was

disposed of by an Order dated June 14, 2005 directing the Railway Authorities not to dispossess the petitioner from the refreshment room in question

except in accordance with law. Railway Authorities issued a notice dated February 10, 2006 upon the petitioner for vacating the refreshment room.

Petitioner was dispossessed therefrom. Railways claimed a sum of Rs. 5, 33, 483.15 from the petitioner. A contempt petition being W.P.C.R.C. 10285

(W) of 2006 was filed. Such contempt petition was disposed of by an Order dated December 15, 2006 granting liberty to the petitioner to challenge the

notice dated February 10, 2006 by a writ petition. Petitioner filed W.P. No. 5025 (W) of 2007 challenging the notice dated February 10, 2006. Such

writ petition was disposed of on August 11, 2008 by directing the Railway Authorities to restore possession of the petitioner within 48 hours upon

receiving the rent and licence fee at the applicable rate which may have become due and payable upto February 12, 2006. Railway Authorities issued

a notice dated September 3, 2008 claiming a sum of Rs. 5,33,483.15 upto January 2006. Petitioner made a representation dated October 1, 2008 and

thereafter filed a writ petition being W.P. No. 28382 (W) of 2008 challenging the notice dated September 3, 2008. Such writ petition was disposed of

by an Order dated July 8, 2009. By such order, the Railway Authorities was directed to raise a bill upon the petitioner from March 1991 to January

2006 at the old rate as it was doing in case of other vending contractors. The railway authorities were granted liberty to realise the sum at the

enhanced rate when they will take steps to realise arrears at the revised rate. It was directed that upon payment of the sum specified in the revised

bills, steps will be taken by the Railways to implement the Order dated August 11, 2008. Complaining violation of the Order dated July 8, 2009, a

contempt petition being C.P.N. 1509 of 2009 was filed by the petitioner. Such contempt petition was taken up for consideration from time to time.

Ultimately, on August 31, 2018, such contempt petition was disposed of in view of the letter dated March 23, 2017 after returning a finding that, such

letter was in compliance with the Order dated August 11, 2008.

The present application is for recalling of the Order dated August 31, 2018. On August 31, 2018, none appeared for the petitioner. The alleged

contemnors were represented. The contempt petition was heard after completion of affidavits. The Order dated August 31, 2018 was passed in

absence of the petitioner. The Order dated August 31, 2018 is such that, it considers the contempt petition on merits and disposed of the same.

Budhia Swain & Ors. (supra) has considered Section 151 of the Code of Civil Procedure, 1908 which vest a Court with the inherent power to recall

an Order. On the power of a Court or a Tribunal to recall an earlier Order made by it, it has held as follows:-

In our opinion a tribunal or a court may recall an order earlier made by it if

(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,

(ii) there exists fraud or collusion in obtaining the judgment,

(iii) there has been a mistake of the court prejudicing a party or

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not

represented.

The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be

pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available

but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.

A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the

exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of

jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by

laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199, it was held :-

The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in

inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the

defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the

court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.

In the facts of the present case, it cannot be said that, any of the three conditions necessary to exist for a Court to exercise its inherent power to recall

its Order, exists. The contempt petition was filed at the instance of the petitioner. The contempt petition cannot be said to have culminated into an

Order suffering from inherent lack of jurisdiction or that the lack of jurisdiction is patent. Petitioner itself invoked the provisions of the Contempt of

Court Act, 1971 and Article 215 of the Constitution of India. There is no allegation of fraud or collusion in obtaining the Order dated August 31, 2018.

No mistake of the Court prejudicing a party has been pointed out in respect of the Order dated August 31, 2018. It cannot be said that the Order dated

August 31, 2018 was rendered in ignorance of the fact that, the necessary party was not served or was dead or that, the estate was not represented.

The Order dated August 31, 2018 has returned a finding that, the letter dated March 27, 2017 of the Railway Authorities was in compliance of the

Order dated August 11, 2008. The Order dated August 11, 2008 was passed in W.P. No. 5027 (W) of 2007 directing the Railway Authorities to

restore possession within 48 hours upon receiving rent and licence fee as applicable which might have become due and payable upto February 12,

2006. The letter dated March 23, 2017 refers to the Order dated August 11, 2008. It requires the petitioner to satisfy the conditions laid down therein

for the Railway and the consent of the petitioner in accepting the offer to take over possession of the site. Petitioner did not comply with the

requisition dated March 23, 2017. The contents of the letter dated March 23, 2017 cannot be said to be in violation of the Order dated August 11,

2008. Even if, the contempt petition is restored and decided on merits then also it cannot be said that, the Railway Authorities have acted wilful or

contemptuous violation of the Order dated August 11, 2008 or the Order dated July 8, 2009. No fruitful purpose would be subserved by recalling the

Order dated August 31, 2018.

C.A.N. 7266 of 2018 is dismissed. No order as to costs.

Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.