Karnataka High Court
Shivaprasad Navada vs Leonard Fernandes on 9 February, 2023
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
C.C.C. No.1671/2018 (CIVIL)
BETWEEN:
SHIVAPRASAD NAVADA,
S/O KODI NAGESH NAVADA,
AGED ABOUT 45 YEARS,
NO.768, 9TH MAIN,
KORAMANGALA 3RD BLOCK,
BANGALORE - 560034. ...COMPLAINANT
(BY SRI S. SRIRANGA, SENIOR COUNSEL A/W
SRI VIKRAM U. R., ADVOCATE)
AND:
1. LEONARD FERNANDES,
S/O. JOSEPH JACOB FERNANDES,
AGED ABOUT 42 YEARS,
NO.747, 8TH MAIN,
KORAMANGALA 3RD BLOCK,
BANGALORE - 560034.
2. SAMEERA FARNANDES
W/O. LEONARD FERNANDES,
AGED ABOUT 38 YEARS,
2
NO.747, 8TH MAIN,
KORAMANGALA 3RD BLOCK,
BANGALOLRE - 560034.
3. MR. N. MANJUNATH PRASAD,
THE COMMISSIONER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
CORPORATION BUILDING,
HUDSON CIRCLE,
BANGALORE - 560001.
REPRESENTED HEREIN BY ITS COMMISSIONER
4. MR. SANJEEV KUMAR,
ASSISTANT EXECUTIVE ENGINEER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
KORAMANGALA SUB DIVISION,
PALIKE BUILDING, II CROSS,
5TH BLOCK, KORAMANGALA,
BANGALORE - 560095.
5. MR. H. N. RAGHU,
ASSISTANT DIRECTOR OF TOWN PLANNING(SOUTH),
MAHANAGARA PALIKE COMMERCIAL COMPLEX,
9TH CROSS, 9TH MAIN ROAD,
BANGALORE - 560011.
6. SRI VISHWANATH,
JOINT COMMISSIONER(SOUTH),
MAHANAGARA PALIKE COMMERCIAL COMPLEX,
9TH CROSS, 9TH MAIN ROAD,
JAYANAGAR 2ND BLOCK,
BANGALORE - 560011. ...ACCUSED
(BY SRI RAJESH RAI. K., ADVOCATE FOR A1 AND A2;
VIDE ORDER DATED 19.02.2019 AND 10.01.2023 PROCEEDINGS
AGAINST ACCUSED Nos.3 TO 6 ARE DROPPED)
....
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THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W ARTICLE 215 OF
CONSTITUTION OF INDIA BY THE COMPLAINANT PRAYING TO
INITIATE CONTEMPT PROCEEDINGS AGAINST THE ACCUSED
HEREIN FOR WILFUL DISOBEDIENCE OF ORDERS DATED
04.05.2018 AND 25.6.2018 PASSED IN W.P.NO.18150/2018
(ANNEXURE-A & A-1).
THIS CCC HAVING BEEN HEARD AND RESERVED FOR
ORDERS IS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, B.VEERAPPA J., MADE THE FOLLOWING:
ORDER
The complainant has filed the present contempt petition to take action against the accused under the provisions of Sections 11 and 12 of the Contempt of Courts Act for willful disobedience of the interim orders dated 4.5.2018 and 25.6.2018 passed in Writ Petition No.18150/2018 wherein the learned Single Judge of this Court while issuing emergent notice on 4.5.2018 directed the parties to maintain status quo, till the next date of hearing and on 25.6.2018 while dismissing I.A.1/2018 for injunction, again directed the parties to continue to maintain status-quo, till the next date of hearing.
2. The grievance of the complainant is that inspite of interim orders granted by this Court and knowing fully well that, accused 4 Nos.1 and 2 by erecting barricades around the property have continued with the construction activities within and though an application came to be filed by the complainant, the same was rejected by this Court and the interim order was extended. As such, the accused have violated the interim orders passed by this Court. Therefore, he sought to allow the contempt petition by initiating appropriate contempt proceedings.
3. In response to the notice issued by this Court, accused Nos.1 and 2 filed reply statement contending that the present contempt proceedings initiated against the alleged willful disobedience of the interim orders, dated 4.5.2018 and 25.6.2018, is misconceived and is not maintainable as they have not carried out any illegal construction contrary to the interim orders passed by this Court. It is further contended that due to onset of monsoon in Bangalore and the severe and incessant rains that followed, there was a crack and leakage on one side of the wall of their property. Due to the heavy rains, rainwater was entering inside the first floor of their house. On 25.6.2018, in order to stop such leakage/seepage of water into their property, they carried out the 5 required repair works. Even in the alleged photos, it is clear that only repair works were being carried out and not with any construction activities. It is further contended that they have high regards to the interim orders passed by this Court and at no point of time, they had violated any interim order passed by this Court. They are abiding the orders passed by this Court and that at all point of time, what was done by them was only the repair works to protect their property from being damaged since water was leaking inside their house due to the severe unprecedented rains. The said repairs were carried out by them, as the same were required for the safety of their house and otherwise, it would have been very difficult for them to reside in their house. If no repairs were done and the house was not properly and adequately protected, it would have been definitely a severe damage. They would unconditionally respect and obey any orders passed by this Court and at no point of time, they had intended to violate/disobey the interims orders passed by this Court. Therefore, the contempt proceedings initiated by the complainant is only with an intention to harass them and there is absolutely no truth in the allegations made by the complainant and therefore, they sought to dismiss the contempt 6 petition.
4. This Court by the order, dated 26th July, 2019 framed the charges and Plea against accused persons as under:
Accused No.1:
"CHARGE We, Justice Ravi Malimath and Justice H.P.Sandesh do hereby charge you, respondent/accused No.1 i.e., Leonard Fernandes Son of Joseph Jacob Fernandes, Aged about 42 years, No.747, 8th Main Koramangala 3rd Block, Bengaluru-560 034.
as follows:
The complainant had filed W.P.No.18150 of 2018. This Court by an interim order dated 04.05.2018 directed the parties to maintain status- quo till the next date of hearing. The said interim order was also extended on 25.06.2018.
That you accused in spite of the interim order dated 04.05.2018 and subsequently extended on 25.06.2018, have violated the said order by 7 continuing the illegal construction of the premises thereby amounting to contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, punishable under Sections 11 and 12 of the Act, within the cognizance of this Court.
And we hereby direct that you be tried by this Court on the said charge.
Dated this the 25th day of July 2019."
PLEA Have you heard the charge read over to you?
Yes Have you understood the charge ?
Yes Do you plead guilty or claim to be tried?
Not guilty - claim to be tried
We, Justice Ravi Malimath and Justice
H.P.Sandesh certify that the above charge was read over and explained to the accused in the language known to the accused in our presence after hearing and that the above answer is the true and correct recording of the answer given by the accused."
8Accused No.2:
"CHARGE We, Justice Ravi Malimath and Justice H.P.Sandesh do hereby charge you, respondent/accused No.2 i.e., Sameera Fernandes, Wife of Leonard Fernandes, Aged about 38 years, No.747, 8th Main, Koramangala 3rd Block, Bengaluru-560 034.
as follows
The complainant had filed W.P.No.18150 of
2018. This Court by an interim order dated
04.05.2018 directed the parties to maintain status- quo till the next date of hearing. The said interim order was also extended on 25.06.2018.
That you accused in spite of the interim order dated 04.05.2018 and subsequently extended on 25.06.2018, have violated the said order by continuing the illegal construction of the premises thereby amounting to contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, punishable under Sections 11 and 12 of the Act, within the cognizance of this Court.9
And we hereby direct that you be tried by this Court on the said charge.
Dated this the 25th day of July 2019.
"PLEA Have you heard the charge read over to you?
Yes Have you understood the charge ?
Yes Do you plead guilty or claim to be tried?
Not guilty-claim to be tried
We, Justice Ravi Malimath and Justice
H.P.Sandesh certify that the above charge was read over and explained to the accused in the language known to the accused in our presence after hearing and that the above answer is the true and correct recording of the answer given by the accused."
5. In order to substantiate the case, the complainant on his behalf examined himself as C.W.1 and two other witnesses as C.Ws.2 and 3 and got marked the documents as Exs.P.1 to 16 and 10 the accused Nos.1 and 2 got themselves examined as D.Ws.1 and 2 and got marked the documents as Exs.D.1 and 2.
6. The complainant - Shivaprasad Navada, who got himself examined as C.W.1, deposed that on 18.9.2013, he came to know that his neighbour had demolished the common compound wall between his property and the accused. Accordingly, he lodged a complaint to the jurisdictional Police as well as to the BBMP on the same day against the accused. He has further deposed that there were violations pertaining to the set back and even the constructions were illegally put up. Thereafter, he obtained a copy of the sanctioned plan through RTI. The BBMP issued notices to the accused with regard to illegal construction. Since no action was being taken, he filed Writ Petition No.4379/2018 praying to restrict the accused from putting up further construction in violation of the sanctioned plan and the said writ petition came to be dismissed on 21.2.2018 on the ground that BBMP had already issued notice to the accused with regard to the violations. Even then, the illegal constructions continued. Thereafter, the accused filed a petition before the Karnataka Appellate Tribunal assailing the notices issued 11 by the BBMP in which he filed an application seeking to implead himself in the said proceedings. The same was rejected. Hence, he filed W.P. No.18150 of 2018, seeking for an order to implead him in the proceedings before the KAT and the KAT by the order, dated 04.05.2018, directed the parties to maintain status-quo as on that date, till the next of hearing and the said interim order was extended from time to time as per Exs.P.1 and 2 and a copy of the sanction plan was produced and marked as Annexure-P3. He further deposed that the photograph of the compound wall between his property and that of the accused was taken prior to the demolition and it is marked as Ex.P.4. The photograph of the demolished wall was marked as Ex.P.5. Copy of the complaint lodged with the Koramangala Police Station along with the typed copy was marked as Ex.P.6. Copy of the complaint given to the Commissioner for BBMP, dated 13.12.2017 along with the typed copy was marked as Ex.P.7. A copy of the notice issued under Section 321(1) and (2) of the Karnataka Municipal Corporation Act issued by the BBMP to the accused including the sketch and calculations were marked as Exs.P.8 and 9,.
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7. The photographs showing the construction as on 25.08.2018 were marked as Exs.P.10, 11, 13, 14, 15, 16 and a CD of the said photographs as Ex.P.17. Subsequent to the interim order granted by the High Court of Karnataka, the officials of the BBMP wrote a letter to the accused, to stop all further constructions and to comply with the orders passed by this Court. Consequently, the BBMP has filed a complaint against the accused before the Koramangala Police Station for violation of the interim orders passed by this Court. The notice is marked as Ex.P.18 and the complaint to the Police is marked as Ex.P.19. As on the date when the interim order was granted by this Court, only the outer shell of the construction was completed and it was not fit for occupation. The complainant had witnessed the accused putting up construction inspite of granting interim orders against them and the entire construction was completed and there were people living in the said building as on the day of recording his evidence. Therefore, he prayed that the building be brought according to the plan sanctioned and to punish the accused for disobedience of the orders passed by this court.
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8. In his cross-examination, C.W.1 - the complainant has admitted that the site bearing No.768 is a site owned by him which is a vacant site. He has denied the suggestion that the accused had a discussion with him before putting up their construction with regard to the sanction plan. He has admitted the suggestion that he requested the accused to give him a copy of the sanction plan and asked the accused to maintain the set backs, etc., in terms of the sanction plan; He was not aware as to whether the accused had measured his site and that there was a difference of half a foot. Therefore, the accused requested him for having a joint survey of both the properties, but he did not accept the same, since it was not necessary. He has denied the suggestions that for this purpose, the accused demolished the wall with his consent and in his presence; and the accused had completed the entire construction before 06.12.2017. Witness volunteered to say that the question of putting up construction would not arise since the old building was existing as on 06.12.2017 and was not demolished. He also denies the suggestions that property in question was occupied by the accused on 06.12.2017 and except the interior work of the third floor, the entire building was 14 completed in all respects. After occupation of the premises by the accused, the BBMP have issued notices to them. The order also indicates that all the floors were completely constructed as could be seen from the photographs of the building in question marked as Ex.D1 accosted to him which is said to be dated 17.10.2018. He denied the suggestions that the photographs produced by him are concocted; He manipulating the dates and taking the said photographs; As per Exhibit-P15, there was a tarpaulin cover over the building in question. He further denied the suggestions that in order to stop seepage of water, the accused have done the repair works. He was not aware whether the cracks in the building were due to rain, monsoon or otherwise; after 4.5.2018, there was no illegal construction; He has filed the contempt petition to wreck vengeance against the accused and he colluding with the BBMP officials, has filed this false case.
9. C.W.2 - Sri Nitin Seshadri, examined on behalf of the complainant has deposed that he is residing on the same road wherein the disputed property situates which is about seven to eight houses away. During May 2018, the construction was put up 15 on the super structure which existed up to the third floor. Thereafter, one more floor was constructed. At that point of time, he was the Secretary of the Koramangala Third Block Residents' Welfare Association. Thereafter, the complainant, accused and members of the Association went to the Corporation to solve the issue. However, nothing came out of it. He identified the photographs marked as Exs.P.10 to P.16. Subsequent to what could be seen in the photographs, the entire building has been fully completed. In his cross-examination, he has deposed that he cannot state the exact date and time when he saw the construction of the building and identified Ex.D1 shown to him.
10. C.W.3 - Sri Dennis D'souza, who is the immediate neighbour of the accused has deposed that he had seen the accused putting up construction over his property. As on May 2018, only half of the building was constructed. After May 2018, the construction activity continued and the building was completed. He asked the accused not to put up any illegal construction like the steps in the passage way etc., in violation of the set back. The accused told him that they would consult his Architect about the 16 same which was in December, 2017. He also gave a complaint in writing to the BBMP officials about the illegal construction being put up by the accused and identified the photographs marked as Exs.P.10 to 16. He further admitted that the building of the accused was completed as of on the date he gave evidence. The first floor appeared to be occupied by certain persons for the last six months. In his cross-examination, he has admitted that there was no occasion for him to have any discussion with the accused. However, he volunteered to say that his wife was in contact with the accused occasionally. The accused were residing in the property in question since 06.12.2017 and he has not entered the premises in question.
11. Per contra, the accused No.1, in order to prove his case, examined himself as D.W.1 and deposed that he is accused No.1 and his wife is accused No.2. He knew the complainant. In the year 2014, he had purchased the property in question and in the year 2017, he demolished the existing structure including the compound wall. Thereafter, he obtained a sanction plan on 12.06.2017 to put up the construction on the property to an extent of basement, ground and three floors along with terrace which is marked as 17 Ex.P.3. Thereafter, there were discussions between them and the complainant with regard to the set back area and the compound. The complainant told him to reconstruct the demolished wall after noticing that there was a shortage of about half-a-foot in favour of the complainant. Therefore, he requested the complainant for a joint survey, which he refused. The complainant, thereafter threatened them. However, he continued with the construction of the property and moved into the premises on 06.12.2017. Before 06.12.2017, the complainant through his men and material put up the compound wall half-a-foot into his property which existed as on date of giving evidence. By the time, he received a copy of the interim order, dated 04.05.2018, the entire construction was over and he had already moved into the premises. Hence, as there was no disobedience of any Court Order, he requested for dropping the proceedings. In his cross-examination, he has deposed that he was not aware whether his contractor had obtained any permission from any authority to demolish the existing structure on the property in question and also does not remember whether he applied for the plan sanction before or after demolition. The construction has been put up in terms of the plan sanction, viz., basement, ground floor, 18 three upper floors and a terrace. He was not sure of the exact number of the slabs in the property. Since he would be out of the Country most of the time, he was not sure of the exact date on which the construction commenced and as to when the activities actually commenced. The construction was being done by Sri. Manoj Kumar and Sri. Jayakumar. After the building was completed certain finishing works were done by him through the aforesaid two persons. He admitted the suggestion that when he entered into the premises, certain finishing works had to be completed. The photographs marked as Exs.P.10 to P16 are that of his property. Witness volunteered to say that he does not agree with the dates mentioned in the photographs. He is not sure, about the dates reflected on the photographs vide Exs.P.10 to P.16. He admitted the suggestion that he entered into a lease agreement with Deutsche Bank somewhere in the month of May-June 2018, with regard to the first floor of the premises. No official of the Corporation had come to the property before issuance of notice - Ex.P.8 to him. On receipt of the said notice, he had replied to the same which has been produced in this proceeding. He does not remember about the existence or otherwise of a Commencement 19 Certificate, since all those issues were being handled by the contractors. He was aware of the road cutting permission granted to him and not aware of the date of obtaining such a permission and also not very sure that he knew about the said order. He was aware of the litigation between him and the complainant in various other proceedings. He had filed Appeal No.233 of 2018, before the Karnataka Appellate Tribunal, Bengaluru, seeking permission to do certain finishing works. Pursuant to the orders passed by the Karnataka Appellate Tribunal, he completed the finishing works. He has denied the suggestion that it is not possible to put up the entire construction within a period of six months. Witness volunteers to say that there were no walls at all to the said premises as on 06.12.2017. He further stated that the front and the back portion of the premises are covered by glass and not walls and the remaining two portions are constructed through walls.
12. D.W.2 - Sri.Amrish Thomas has deposed he knew accused No.1 - Sri.Leonard Fernandes, who was his immediate neighbour and also his wife accused No.2. He was also aware of the complainant- Sri.Shiva Prasad Navada and had met him number of 20 times. His house was situated to the north of the property of the accused. The construction was being put up by the accused somewhere in the year 2016-2017. He used to visit the accused quite often. Somewhere in the year 2017, there was an oral exchange between the complainant and the accused. When he tried to interfere, he was told not to do so. The dispute was with regard to the compound wall between the property of the accused and the complainant. The accused had moved into the premises in question in the early part of December, 2017 and thereby he has supported the case of the accused.
13. We have heard the learned Counsel for the parties.
14. Sri Sriranga S., learned Senior Counsel for the complainant reiterating the averments made in the contempt petition contended that inspite of the interim order dated 4.5.2018 directing the parties to maintain status quo and extending the said order on 25.6.2018, accused Nos.1 and 2 continued with their construction activities in the property and accused Nos.3 to 6 have permitted the same and thereby the accused have wilfully and deliberately disobeyed the orders passed by this Court and have 21 committed a gross contempt. He would further contend that inspite of the notice issued to the accused by the complainant calling upon them to desist from the contemptuous actions, they have not stopped the construction and thereby, they are liable for conviction under the provisions of 12 of the Contempt of Courts Act.
15. The learned Senior Counsel for the complainant would further contend that in support of their case, the complainants has examined himself as C.W.1, a neighbour as C.W.2 and immediate neighbour of the accused as C.W.3, who have categorically deposed about the construction put up by accused Nos.1 and 2 in violation of the interim order and nothing has been elicited to disbelieve their versions. Even the evidence of accused Nos.1 and 2 does not depict that they have not put up construction after the interim orders were passed by this Court. Therefore, he submits that this is a clear case of contempt and thereby, the accused are liable to be convicted for their contemptuous act under the provisions of Section 2(b) r/w Section 12 of the Contempt of Courts Act and hence, sought to allow the contempt petition.
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16. Per contra, Sri Rajesh Rai K., learned Counsel for accused Nos.1 and 2 reiterating the averments made in the statement of objections would contend that after the interim order was passed by this Court on 4.5.2018 in Writ Petition No.18150/2018 directing both the parties to maintain status quo and subsequently, extended on 25.6.2016, the accused have not carried out any illegal constructions contrary to the interim orders passed by this Court. In view of onset of monsoon in Bangalore and severe and incessant rains, there was a crack and leakage on one side of the wall in this property and the rain water had entered inside the first floor of their house. In order to stop such leakage/seepage of water into their property, they carried out the required repair works, but not any construction activities at any point of time. He further contended that accused Nos.1 and 2 are law abiding citizens of the State and at no point of time, they have disobeyed the orders and filing of the present contempt petition is misconceived and is not maintainable. They have great respect to the interim orders passed by this Court and never intended to violate or disobey the orders passed by this Court and the present contempt petition is filed only to harass accused Nos.1 and 2. He 23 would further contend that the evidence of C.Ws.1 to 3 does not depict that accused Nos.1 and 2 have violated the orders passed by this Court and infact they have admitted that even before the interim orders were passed by this Court, the entire construction activities were completed before 6.12.2017 itself and only repair works were undertaken as is evident from the evidence of D.Ws.1 and 2 and thereby, he sought to dismiss the contempt petition.
17. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for our consideration in the present contempt petition is:
"Whether the complainant has made out a case to take action against the accused for willfull violation of the interim order dated 4.5.2018 granted in Writ Petition No.18150/2018 as contemplated under the provisions of Section 2(b) r/w Section 12 of the Contempt of Courts Act in the peculiar facts and circumstances of the present case?"24
18. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material evidence on record carefully.
19. It is the specific case of the complainant that inspite of the interim order dated 4.5.2018 granted by this Court and being extended on 25.6.2018, the accused persons have proceeded to put up the constructions in respect of the property in question with regard to which the photographs are produced along with a memo. It is the case of the accused persons that they have neither violated nor put up any further construction in violation of the interim orders passed by this Court but they have only carried out repair works as there was a crack and leakage on one side of the wall of their property that had occurred due to incessant rains.
20. On careful perusal of the Provisional Order passed by the Bruhath Bengaluru Mahanagara Palike (for short, hereinafter referred to as 'the BBMP') on 12.2.2018, it clearly depicts that in the 'Remarks' Column, there is violation and deviation in the Building Sanction Plan in Basement F1, Ground Floor, First Floor, Second Floor and Terrace to an extent of 431.62%, 14.11%, 25 36.60%, 46.18% and 219.66% respectively and subsequently as per the final order has been passed under Section 321(1) and (2) of the Karnataka Municipal Corporations Act.
21. Though the photographs showing construction as on 25.8.2018 as per Exs.P.10 to 16 and a C.D. as per Ex.P.17 are not disputed by the accused, the complainant - C.W.1 has deposed that on 18.9.2017, he came to know that the accused/his neighbour had demolished the common compound wall between his property and the accused. Accordingly, he lodged a complaint to the jurisdictional Police as well as to the BBMP on the same day against the accused. He has further deposed that there were violations pertaining to the set back and even the constructions illegally put up. Thereafter, he obtained a copy of the sanctioned plan through RTI. The BBMP issued notices to the accused with regard to illegal construction. Since no action was being taken, he filed Writ Petition No.4379/2018 restricting the accused from putting up further construction in violation of the sanctioned plan and the said writ petition came to be dismissed on 21.2.2018 on the ground that BBMP has already issued notice to the accused with regard to the 26 violations of sanctioned plan. Even then, the illegal constructions continued. Thereafter, the accused filed a petition before the Karnataka Appellate Tribunal assailing the notices issued by the BBMP and complainant made an application seeking to implead himself in the said proceedings and the same was rejected. Hence, he filed W.P. No.18150 of 2018, seeking for an order to implead himself in the proceedings before the KAT and the KAT by an order, dated 04.05.2018, directed the parties to maintain status-quo as on that date, till the next of hearing and the said interim order was extended from time to time. In his cross-examination, the complainant has admitted that the site bearing No.768 is owned by him and it is a vacant site; He is not aware as to whether the accused measured his site and that there was a difference of half a foot and that the accused requested him to have a joint survey of both the properties, but he did not accept the same as it was not necessary.
22. It is the specific case of the accused that the entire construction was completed before 6.12.2017 and it was occupied by the accused. But complainant has denied the same. He further 27 admitted that after the accused occupied the premises, the BBMP issued notice to them and the order also indicated that all the floors were completely constructed. Admittedly, the BBMP issued notices to the accused on 12.2.2018 and by that time, the construction was already completed.
23. C.W.2 - Sri Nitin Seshadri examined on behalf of the complainant has deposed that he is residing on the same road wherein the disputed property situates which is about seven to eight houses away. During May 2018, the construction was put up on the super structure which existed up to the third floor. Thereafter, one more floor was constructed. At that point of time, he was the Secretary of the Koramangala Third Block Residents' Welfare Association. Thereafter, the complainant, accused and members of the Association went to the Corporation to solve the issue. However, nothing came out of it. He identified the photographs marked as Exs.P.10 to P.16. Subsequent to what could be seen in the photographs, the entire building has been fully completed. In his cross-examination, he has deposed that he 28 cannot state the exact date and time when he saw the construction of the building and identified Ex.D1 shown to him.
24. C.W.3 - Sri Dennis D'souza, who is the immediate neighbour of the accused has deposed that he has seen the accused putting up construction over his property. As on May 2018, only half of the building was constructed. After May 2018, the construction activity continued and the building was completed. He told the accused not to put up any illegal construction like the steps in the passage way etc., violating the set back. The accused told him that he would consult his Architect about the same which was in December, 2017. He also gave a complaint in writing to the BBMP officials about the illegal construction being put up by the accused and identified the photographs marked as Exs.P.10 to 16. He further admitted that the building of the accused was completed as of on that date. The first floor appeared to be occupied by certain persons for the last six months. In his cross-examination, he has admitted that there was no occasion for him to have any discussion with the accused. However, he volunteered to say that his wife was in contact with the accused occasionally, the accused 29 were residing in the property in question since 06.12.2017 and he had not entered the premises in question.
25. All the pleadings, evidence of C.Ws.1 to 3 clearly depict that the construction was completed before 6.12.2017 and the accused were residing in the said property on 6.12.2017 as admitted by C.Ws.1 to 3. Admittedly, the interim order was granted for the first time in Writ Petition No.18150/2018 on 4.5.2018 with a direction to the parties to maintain status quo which was extended on 25.6.2018. It is the specific case of the accused that they have neither violated the interim orders granted by this Court as the construction was completed before 6.12.2017 and they were residing in the building along with family and due to the heavy rains there was a crack and leakage on one side of the wall, due to which, the rain water was entering inside the first floor of their house and in order to stop such leakage/seepage of water into their property, they were forced to carry out repair works. Infact, there was a dispute between accused No.1 and complainant initially with regard to the set back area and the compound and the complainant had told him to reconstruct the demolished wall after 30 noticing that there was a shortage of about half a foot in favour of the complainant. Therefore, the accused had requested the complainant for a joint survey which the complainant had refused and the complainant had threatened the accused. However, the accused continued with the construction of the property and moved into the premises on 6.12.2017. Before 6.12.2017, the complainant through his men and material put up the compound wall half a foot into his property which was existing as on date. By the time, a copy of the interim order, dated 4.5.2018, was received by the accused, the entire construction was over and the accused had already moved into the premises, and as such, there was no disobedience of any of the Court order. D.W.1 has further deposed in his cross-examination that the construction has been put up in terms of the plan sanctioned viz., basement, ground floor, three upper floors and a terrace and the construction was being done by Sri Manoj Kumar and Sri Jayakumar. After the building was completed, certain finishing works were done by him through the aforesaid persons. He has admitted the suggestion that when he had entered into the premises, certain finishing works had to be completed and accordingly, he has produced the photographs 31 marked as Exs.P.10 to 16. The witness volunteers that he does not agree to the dates as mentioned in the photographs.
26. D.W.2 - Sri Amrish Thomas has also deposed on par with D.W.1 that in the year 2017, there was an oral exchange between the complainant and the accused and when he tried to interfere, he was told not to do so. The dispute was with regard to the compound wall between the property of the accused and the complainant. The accused had moved into the premises in question in the early part of December, 2017.
27. On careful perusal of the evidence of D.Ws.1 and 2 and the material documents, it is clear that the construction was completed in the year 2017 and the accused had moved into the house. Except some photographs produced by the complainant, which are disputed by the accused, no material is produced to prove that the construction was continued in violation of the interim order passed by this Court on 4.5.2018 and was extended subsequently on 25.6.2018. It has to be noted that no suggestion was put to accused No.1 - D.W.1 about violation of the interim order and that they continued to put up the construction. In 32 paragraph-27 of the statement of objections, it is specifically contended by the accused as under:
"27. The Accused No.1 and 2 submits that they have not carried out any illegal construction contrary to the order passed by this Hon'ble Court. We submit that due to the onset of monsoon in Bangalore and the severe and incessant rains that followed, there was a crack and leakage on one side of the wall and our property. Due to the heavy rains, rainwater was entering inside the first floor of our house. On 25.08.2018, in order to stop such leakage/ seepage of water into our property we carried out the required repair work. Even in the alleged photos it is clear that only a repair work was being carried out by us and not any construction activities."
28. The complainant-C.W.1 also has admitted in his cross- examination that the construction was already completed. As could be seen from the notice issued by the BBMP, as long back as on 12.2.2018, the construction was already completed and thereby, they have shown violation of the building sanction plan. 33
29. It has to be noted that the notices issued by the BBMP under the provisions of Sections 321(1) and (2) of the Karnataka Municipal Corporation Act were subject matter of appeal before the Karnataka Appellate Tribunal and though the earlier writ petition filed by the complainant came to be disposed of as it had become infructuous and it is also not in dispute that the application filed by the present complainant before the Karnataka Administrative Tribunal to implead himself as a party in the appeal pending between the accused and the BBMP was rejected, against which, a writ petition i.e., W.P.No.18150/2018 came to be filed by the complainant and this Court by the order dated 4.5.2018 directed both the parties to maintain status-quo as on the date till the next date of hearing. In the circumstances, it makes it clear that as on the date of passing the interim order by this Court, accused Nos.1 and 2 had already completed the construction of the property in dispute and they were residing in the said property from 6.12.2017. Admittedly, Appeal No.233/2018 was filed before the KAT by the accused wherein an interim order was passed on 13.3.2016 in favour of the accused and now the matter is still pending consideration before the KAT. If ultimately, on the oral and 34 documentary evidence produced, if the KAT comes to the conclusion that the accused have constructed the building in violation of the building bye laws, it can pass appropriate orders in accordance with law.
30. We are aware that while dealing with a civil contempt, the contempt of Courts Act, 1971 explains a civil contempt to mean a wilful disobedience of a decision of the Court. Therefore, what is relevant is the 'wilful' disobedience. Knowledge acquires substantial importance quo a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of wilfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentiontional act. What is requires is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature.
31. It is the specific case of the accused persons that in the present case, they have not violated the interim orders passed by this Court. Except some photographs which are disputed, no other material is produced that the construction was proceeded with by 35 the accused in violation of the interim order passed by this Court on 4.5.2018 and subsequently extended on 25.6.2018. In the absence of any material produced, we are unable agree with the contention of the learned Counsel for the complainant that there is willful disobedience of the order passed by this Court on the part of the accused, except categorical assertions made by the complainant and producing some photographs which are disputed by the accused and thereby, the contemptuous act on the part of the accused cannot be decided based on the photographs showing violation in the absence of oral and documentary evidence.
32. On considering the pleadings, oral and documentary evidence on record and the provisions of Section 13 of the Contempt of Courts Act, it clearly depicts that the language used therein seems to be with utmost care and caution when it records that unless the Court is satisfied that the contempt is of such a nature that the act complained of substantially interferes with the due course of justice, question of any punishment would not arise. It is not enough that there should be some technical contempt of court but it must be shown that the act of contempt would 36 otherwise substantially interfere with the due course of justice which has been equated with "due administration of justice". As such, we are of the considered opinion that the complainant has not satisfied the Court that the act of the accused substantially interferes or tends substantially to interfere with the due course of justice.
33. Keeping in view the provisions of Sections 12 and 13 of the Contempt of Courts Act, the complainant has not made out any case to punish the accused. It is well settled that the Court has power of contempt and that lethal power too accompanies with greater responsibility. Contempt is a weapon like "Brahmastra" to be used sparingly to remain effective. At the same time, a Judge has to guard the dignity of the Court and take action in contempt and in case of necessity to impose appropriate exemplary punishment too.
34. In view the above principle and taking into consideration both oral and documentary evidence on record and the peculiar facts and circumstances of the present case, the point raised in the present contempt petition has to be answered in the negative 37 holding that the complainant has not made out any case to punish the accused.
35. In view of the above, we pass the following:
ORDER
i) Contempt proceedings are hereby dropped; and
ii) It is needless to observe that the construction, if any, in violation of the sanctioned plan as alleged, will be subject to the result of Appeal No.233/2018 pending between the parties before the Karnataka Administrative Tribunal.
Sd/-
Judge Sd/-
Judge Nsu/-