Rajasthan High Court - Jaipur
M/S S.M.S. Investment Corporation Pvt ... vs Mohan Singh Tada S/O Late Shri Girdhari ... on 10 February, 2020
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Contempt Petition No. 1212/2019
In
S.B. Civil First Appeal No.175/2018
M/s S.m.s. Investment Corporation Pvt Ltd., Through Authorized
Officer Jagjivan Kumar Pareek S/o Shri Madan Lal Pareek,
Resident Of Raj Mahal Palace, Office Sardar Patel Marg, C-
Scheme, Jaipur
----Petitioner
Versus
Mohan Singh Tada S/o Late Shri Girdhari Singh, B/c Rajput,
Resident Of H.h. Flat No. 2, Tilak Marg, C-Scheme, Jaipur
Present Address Paanigrah, Near Western Gate Of Sms Stadium,
Bhawani Singh Road, Jaipur
----Respondent
For Petitioner(s) : Mr. R.K. Agrawal Sr. Adv, assisted by
Mr. Asad Ali
For Respondent(s) : Mr. Rajendra Prasad Sr. Adv, assisted
by Mr. Sudesh Bansal
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
10/02/2020
Heard on the application No.01/2020 filed on behalf of the
petitioner for appointment of Mauka Commissioner.
With consent of both the parties, the matter is heard finally,
hence, the application No.01/2020 stands dismissed.
Heard on the application No.02/2019 filed on behalf of the
respondent.
Learned senior counsel appearing on behalf of the
respondent wants to withdraw this application, as the matter is
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heard finally, hence, the application No.02/2019 stands dismissed
as withdrawn.
Instant contempt petition has been filed by the petitioner on
account of non-compliance of the order dated 28.05.2019 passed
by this Court in S.B. Civil Second Stay Application No.1976/2019
in S.B. Civil First Appeal No.175/2018 and the said order dated
28.05.2019 was continued from time to time.
Brief facts of the case are that the petitioner has given
property in dispute on licence to the respondent for running a
marriage garden. Thereafter the petitioner filed a suit for
possession of the disputed property which was dismissed by the
Trial Court vide order dated 15.11.2017. Being aggrieved by the
order dated 15.11.2017 passed by the Trial Court, the petitioner
has preferred an appeal being S.B. Civil First Appeal No.175/2018
along with which, the petitioner also preferred stay application. On
12.12.2018 following order was passed in Civil First Appeal
No.175/2018:-
"Learned counsel for the appellant has not
pressed the stay application.
The stay application is dismissed as not pressed.
Hearing of the appeal is expedited."
During the pendency of the first appeal, the appellant filed
second stay application No.1976/2019, wherein on 28.05.2019,
the following order was passed:-
"Shri Sudesh Bansal has filed vakalatnama on
behalf of respondent.
Learned counsel for the appellant is directed to
supply copy of the stay application to him during
the course of the day.
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Reply to the same, if any, may be filed within a
week.
Name of Shri Sudesh Bansal be shown in the
cause list as counsel for the respondent.
Having regard to the facts and circumstances of the case, this Court considers it appropriate to appoint a Commissioner to inspect the site in dispute and to submit the report. Therefore, Shri Amit Jindal, Advocate is appointed as Commissioner to inspect the site on 28.05.2019 at 05:30 PM. He will submit his report especially with regard to the present status of the property. He will have the photographs of the disputed property also taken, cost of which shall be borne by the appellant. He shall be paid a sum of Rs.15,000/- towards his fees by the appellant for which he shall pass over a receipt to him.
Office is directed to immediately provide a copy of this order to Shri Amit Jindal, Advocate. List this matter on 30.05.2019.
Till then the respondent is restrained from raising any new construction over the suit property. "
Learned senior counsel appearing on behalf of the petitioner submits that in compliance of the order dated 28.05.2019 passed by this Court, the Commissioner inspected the site and prepared the Mauka report, in which, it has been stated that the fresh new construction was going on.
On 27.09.2019, this Court passed the following order in the present contempt petition:-
"Learned counsel for the petitioner submits that there was a restrained order as against the respondent for raising any new construction over the suit property by this Court in S.B. Civil (Downloaded on 15/02/2020 at 08:50:11 PM) (4 of 9) [CCP-1212/2019] Second Stay Application No.1976/2019 in S.B. Civil First Appeal No.175/2018 on 28 th May, 2019. In spite thereof, the construction has been continuing and was completed by the respondent- contemnor setting up a marriage garden fully constructed.
Issue notice of the writ petition as well as stay application, returnable within two weeks. In the meanwhile, the Commissioner of Police, Jaipur shall issue directions to seal the concerned property situated at Pannigarh Marriage Garden, Bhawani Singh Road, Jaipur. A report to this effect shall be submitted before this Court on the next date.
List this case on 16th October, 2019."
In compliance of the order passed by this Court, when the Commissioner of Police was going to seal the premises, the respondent filed D.B. Special Appeal No.22/2019 as well as D.B. Special Appeal No.21/2019, wherein the Division Bench of this Court on 01.10.2019 passed the following order:-
"These appeals are directed against interlocutory order dated 27.09.2019 passed by the learned Single Judge of this Court in S. B. Civil Contempt Petition No. 1212/2019, which reads as under:
"Learned counsel for petitioner submits that there was a restrained order as against the respondent for raising any new construction over the suit property by this Court in SB Civil Second Stay Application No. 1976/2019 in SB Civil First Appeal No. 175/2018 on 28th May, 2019. In spite thereof, the construction has been continuing and was completed by the respondent-contemnor setting up a marriage garden fully constructed. Issue notice of the writ petition as well as stay application, returnable within two weeks. In the meanwhile, the Commissioner of Police, Jaipur shall issue directions to seal the concerned property situated at Paanigran Marriage Garden, Bhawani Singh Road, Jaipur. A report (Downloaded on 15/02/2020 at 08:50:11 PM) (5 of 9) [CCP-1212/2019] to this effect shall be submitted before this Court on the next date. List this case on 16th October, 2019."
Appeal No. 22/2019 has been filed by Mohan Singh Tada. Mr. Rajendra Prasad, learned Senior Counsel appearing on behalf of the appellant-Mohan Singh Tada in that appeal submitted that the aforesaid order has been passed by the learned Single Judge without affording any opportunity of hearing to the appellant or else he would have explained that he has not raised any new construction after passing of restraint order dated 28.05.2019. It is submitted that the Court prior to passing of aforementioned restraint order in the first appeal had appointed an advocate as Commissioner, who submitted his report and the appellant has not raised any new construction of permanent nature than what has been described in the report of the Commissioner and he has only built certain temporary structure. Learned Senior Counsel submitted that the appellant had to file appeal because of non-availability of the learned Single Judge, to whom the matter has been assigned, till 14.10.2019. He submitted that the appellant has booked the disputed property for functions on 04.10.2019 and 09.10.2019 and therefore, the disputed property may not be sealed for the purpose of organisation of aforesaid functions. Appeal No. 21/2019 has been filed by one Gaurav Singh contending that he had booked the disputed property which was being run as a marriage garden, for the purpose of his prewedding ceremony, which is scheduled to take place on 04.10.2019 and for that purpose, he would occupy the same on 03.10.2019. The time gap between today and 04.10.2019 is so short that it is not possible for him to arrange the ceremony at any other appropriate location. Mr. R. K. Agarwal, learned Senior Counsel appearing on behalf of the respondent submitted that the appellant, Mohan Singh Tada has violated the order passed by this Court in First Appeal No. 175/2018 on 28.05.2019. He has raised additional construction not only of temporary nature but also of permanent nature, in breach of aforesaid order. The learned Single Judge was therefore persuaded to pass the order of extra-ordinary nature in the facts of the present case. He, however, submitted that due to time constraint, he would have no objection in allowing the appellant Gaurav Singh to enter the disputed premise from 03.10.2019 and to hold his pre-wedding function on 04.10.2019 but he would object to any other function being permitted to be held till the main matter is heard by the learned Single Judge on 16.10.2019, the next date already fixed in the contempt petition.
(Downloaded on 15/02/2020 at 08:50:11 PM)(6 of 9) [CCP-1212/2019] Having heard learned Senior Counsel appearing on behalf of the parties and regard to the facts of the present case, both the appeals are disposed of in the terms that the disputed property situated at Paanigrah Marriage Garden, Bhawani Singh Road, Jaipur shall not be sealed by the Commissioner of Police, Jaipur and the appellant Gaurav Singh shall be permitted to enter the disputed premise on 03.10.2019 and hold his pre-wedding function on 04.10.2019. However, the appellant Mohan Singh Tada is restrained from permitting organisation of any other function/reception/pre-wedding function on the disputed premises till specific permission is granted by the learned Single Judge either in the contempt petition or in the main first appeal, except pre- wedding function of appellant Gaurav Singh scheduled on 04.10.2019.
Stay Application No. 4101/2019 and 4102/2019 stand disposed of. All the interim applications filed in both the appeals also stand disposed of.
Office is directed to place a copy of this judgment on record of Appeal No. 21/2019."
Learned Senior Counsel further submits that the respondent has flouted the order passed by this Court dated 28.05.2019, as he has started new construction over the disputed property and the photographs submitted by the Commissioner along with his report, clearly show that the respondent has started new construction over the suit property and the same further continued and even after passing of the order the construction was got completed by the respondent. Lastly, prayed for punishing the respondent for flouting the order passed by this Court.
Learned senior counsel appearing on behalf of the respondent submits that admittedly the suit property was taken by the respondent for the purpose of marriage garden and the respondent is not using the said property for any other purpose and the State of Rajasthan issued guidelines vide order dated 07.09.2018 with regard to maintenance and running of marriage gardens as well as places for public functions. Counsel further (Downloaded on 15/02/2020 at 08:50:11 PM) (7 of 9) [CCP-1212/2019] submits that for public safety at some places and to avoid fire incidents certain modification/changes were made by the respondent to run the marriage garden and it is mandatory to follow those guidelines and therefore, the respondent has changed the wooden pandals structure by using iron pipes, angles, tin sheets etc just to safeguard the visitors from unforeseen incidents of fire etc. Counsel further submits that since the very beginning the respondent is using the place for marriage purposes only and running the same as marriage garden and no new construction was made. Counsel further submits that as per the Commissioner Report, the pillars were already constructed and these pillars have been used only for fixing iron structure and the same is not permanent in nature and the same is removable, as per the requirement of the booking etc for the purpose of marriage purposes.
Learned Senior Counsel further submits that in view of these facts there is no willful disobedience on the part of the respondent in making compliance of the order dated 28.05.2019. He relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Anil Kumar Shahi (2) & Ors. Vs. Prof. Ram Sevak Yadav & Ors., reported in (2008) 14 SCC 115, wherein paras No.48, 49 & 50 held as under:-
"48. A cursory glance at the Contempt of Courts Act, 1971 and the provisions thereof makes it abundantly clear that the Act has been brought in the statute book to define the limit and powers of certain courts punishing for contempt of courts and it has laid down the procedure for exercise of such powers.
49. Contempt of court has been defined under Section 2(a) of the Act, to mean civil contempt or criminal contempt. "Civil contempt" has been defined under Section 2(b) of the Act to mean "willful disobedience to any judgment, decree, (Downloaded on 15/02/2020 at 08:50:11 PM) (8 of 9) [CCP-1212/2019] direction, order, writ or other process of court or willful breach of undertaking given to a court".
50. It is by now well settled under the Act and under Article 129 of the Constitution of India that if it is alleged before this Court that a person has willfully violated its order it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found to be true it can punish the offenders for having committed "civil contempt" and if need be, can pass consequential orders for enforcement of execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated. In other words, while exercising its power under the Act, it is not open to the Court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked. When the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding by the authority and, therefore, a mere error of judgment with regard to the legal position cannot constitute contempt of Court. There is no willful disobedience if best efforts are made to comply with the order."
Heard counsel for the parties and perused the record.
The contempt petition filed by the petitioner is without substance for the reason; firstly, according to Mauka Commissioner's Report, 24 pillars were already constructed by the respondent for installing the iron pipe, angles and tin-sheets etc to cover the marriage pandal, secondly, the Mauka Commissioner's Report further mentioned that wooden structure, which was earlier used for marriage pandal for the purpose of marriage pandal was also lying there, thirdly, the respondent has constructed the pillars prior to passing of the interim order dated 28.05.2019 just to obey the guidelines issued by the State Government for safety of public at large and lastly, the respondent is using the suit property for the purpose of marriage garden only for which it was given by the petitioner to the respondent.
(Downloaded on 15/02/2020 at 08:50:11 PM)(9 of 9) [CCP-1212/2019] In that view of the matter, no case for contempt is made out.
The present contempt petition is accordingly dismissed. Notices stand discharged.
All the pending applications stand disposed of.
(INDERJEET SINGH),J Upendra/93 (Downloaded on 15/02/2020 at 08:50:11 PM) Powered by TCPDF (www.tcpdf.org)