IMPORTANT POINT
The Regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act.

ORDER :

S. Manikumar, J

Instant contempt cases are posted before us, based on the reference orders passed by learned Single Judges of this Court dated 09.01.2015 and 30.10.2019 respectively. In the reference order dated 09.01.2015 in Cont. Case (C) No. 1073 of 2014, it is stated thus:

“Issue for Reference:

Whether Jyothilal (supra) has laid down the correct law in concluding in paragraph 24 of the judgment while declaring : [H]igh Court Rules clearly indicate, after taking cognizance when notice is issued by the Division Bench, unless the respondent contemnor is exempted from personal appearance, he should necessarily appear before the Court. Till then there is no requirement for the appearance of the respondent contemnor especially for the limited purpose of making an enquiry whether a prima facie case is made out to refer the matter to a Division Bench or not.”

Accordingly, I direct the Registry to place the matter before my Lord the Hon'ble the Acting Chief Justice for consideration and appropriate action.”

2. Cont. Case (C) No.1073 of 2014 is referred by a learned Single Judge, doubting the correctness of a decision of this Court in Jyothilal K.R. v. Mathai M.J., 2014 (1) KLT 147, whereas, Cont. Case (C) No.1139 of 2016 is referred by a learned Single Judge, having found that the respondent has committed contempt of the judgment in W.P.(C) No.16813 of 2015 dated 5.6.2015.

3. In view of the reference made in Cont. Case (C) No.1073 of 2014, we propose to examine the correctness of doubt expressed by the learned Single Judge in the judgment in Jyothilal (cited supra).

4. In Jyothilal (cited supra), three contempt cases were considered and in all of them, a common issue has been formulated as follows:

“In the absence of any finding to the effect that the appellants/respondents had committed any willful disobedience of the directions of the Court or had any contumacious conduct warranting initiation of contempt proceedings against them, was there any justification for the learned single Judge issuing the orders impugned directing appearance of the appellants officials?

5. Facts leading to raising of such an issue are as follows:

5.1. During the course of a preliminary enquiry, the contemnor appeared and filed a detailed affidavit. Despite the said affidavit, the contemnor was asked to appear on the next hearing as well. Resultantly, the order of the learned Single Judge was challenged before a Hon'ble Division Bench. The argument advanced was that the order of the learned Single Judge compelling personal appearance continuously in a case, despite the interim order getting vacated under Article 226(3) of the Constitution of India, is without any justification. The Hon'ble Division Bench has placed reliance on the decision of the Hon'ble Supreme Court in State of Gujarat v. Turabali Gulamhussain Hirani and Ors., (2007) 14 SCC 94.

5.2. Apart from the above, the Hon'ble Division Bench observed that Rule 6 of the Contempt of Courts (High Court of Kerala) Rules under the Contempt of Courts Act, 1971 (hereinafter referred to as the 'Rules, 1988', for short) provides that a Division Bench alone can take cognizance of the contempt proceedings; that Rule 8 provides for preliminary hearing and notice when the matter is placed for preliminary hearing before the Division Bench; and that Rule 13 provides for hearing of the case and trial; followed by Rule 15 indicating the procedure for trial. Accordingly, relying on Turabali Gulamhussain Hirani (cited supra), the Hon'ble Division Bench observed thus:

“The learned single Judge is required to hold a preliminary enquiry, only to find out whether there is or not a prima facie case. He shall not take cognizance in the matter. He directs the matter to be posted before the Division Bench only if he finds that there is a prima facie case. Only after learned single Judge finds that a prima facie case is made out, the petition would be placed before a Division Bench for a preliminary hearing as per Rule 8 of th