Gujarat High Court
Sevakram Prabhudas vs H.S. Patel on 5 August, 1999
Equivalent citations: (2000)1GLR715
Author: A.R. Dave
Bench: A.R. Dave
JUDGMENT R. Balia, J.
1. These two applications Nos.1656 of 1997 and 1657 of 1997 are arising in connection with the same incident which took place in the city of Vadodara on 21.8.1997 which resulted in demolition and removal of the cabins of the applicants of these Misc. Civil Applications. The applicants claim to be having a common interest who were parties to the group of Special Civil Applications pending before this Court and which were decided by the common order dt. 7.8.1997 by the learned single Judge of this Court. As evidenced from the recorded facts in the judgment dated 7.8.1997 the petitioners had challenged the notices given to them by the Vadodara Municipal Corporation by which they were required to remove the encroachment made by them within 15 days of the receipt of the notice, failing which the corporation informed them that it would remove their encroachments at their expenses. Shorn of the contentions on merits, the petitions were dismissed on merits. The learned single Judge refused to stay the operation of the order to enable the petitioners to approach the appellate forum and made the following order on request being made in that regard:
" The learned counsel for the petitioners have submitted that the petitioners desire to approach the appellate forum against this decision and furthermore there is monsoon season going and therefore, operation of this order may be stayed for some days to enable the petitioners to approach the appellate forum. The matter has been sufficiently prolonged and any further prolongation would be contrary to the final scheme which is approved by the apex Court and in respect of which it has been observed that there should not be proceedings which thwart the scheme. Any further interim relief would run contrary to the directions of the Supreme Court and therefore, it cannot be granted. The Deputy Commissioner for the Municipal Corporation and other officers who are present are however, agreeable for giving the petitioners one week's time to remove their cabins and clear out. It is also stated that the Corporation will help them in shifting from the present place. Accordingly the petitioners will have one week's time to remove the encroachments."
Thus, within a period of one week the petitioners were to remove their cabins from the site in question. By a later order on an application being made in this behalf deadline was extended upto 20.8.1997. Copy of the order was made available to the petitioners on 12.8.1997. The appeal was filed on 14.8.1997. The intervening period being holiday, the appeal was posted for hearing before the Court on 20.8.1997. Thus the last date upto which the petitioners were required to remove their cabins voluntarily approached. The record of the LPA shows that no order was recorded on 20.8.1997 but the order dated 21.8.1997 reveals what transpired on 20.8.97.
"Notice returnable on 27.8.1997. Mr. P.G. Desai, learned counsel appears and waives service of notice on behalf of the Respondents No. 1 and 2. Direct service permitted for rest.
By way of ad-interim relief and without prejudice to the rights and contentions of the parties it is directed that the respondent authorities will maintain status quo as on today.
An allegation is made that after the matter was mentioned before us yesterday i.e. August 20, 1997 and before 11.00 A.M. today i.e. August 21, 1997, demolition has already been effected in part of the disputed property. It is complained that yesterday a mention was made and matter was ordered to be kept today and to maintain status quo till today. In fact, at that time in presence of the learned counsel for the respondent authorities it was stated that no demolition will be effected till today. Mr. S.N. Shelat, learned counsel appearing for Mr. P.G. Desai confirms that such a statement was made and that it was conveyed by him to Deputy Municipal Commissioner Mr. H.S. Patel. Inspite of the said statement demolition has been partly effected. It is open to the applicants to file an appropriate application in this regard.
So far as the present position is concerned, it is directed that as stated above, status quo as on today to be maintained. Regarding the demolition and/or present position the District Judge, Vadodara, will depute one of the officers of his Court, who will visit the place and prepare Panchnama, if necessary, by taking help of his subordinates and including a photographer. Mr. Vakil, learned counsel for the applicants states that the applicants will pay necessary expenses for taking photographs and for other incidental expenses.
It is also directed that if any of the applicants wants to go to his cabin for the purpose of assessing the situation and/or to take anything belonging to him, he will not be prevented by the respondent authorities. It is also open to such applicant to do so by getting the panchnama prepared. However, it is clarified that no construction will be made till further orders.
Mr. H.S. Patel, Dy. Commissioner and Mr. A.B. Thorat, Law Officer of the Vadodara Municipal Corporation, to remain present in the Court on the returnable date.
The Registry will send a copy of this order by fax message and/or any other mode to the District Judge, Vadodara, at the costs of the applicants."
The order further reveals that Mr. H.S. Patel, the Deputy Municipal Commissioner of the Vadodara Municipal Corporation, respondent No.1 in these applications, and one Mr. Thorat, the Law Officer of the Vadodara Municipal Corporation, were directed to remain present on the next date of hearing on 27.8.1997. On 27.8.97, statement of these two officers were recorded. On 27.8.1997 itself these two separate Misc. Civil Applications were filed impleading (1) Mr. H.S. Patel, Dy. Municipal Commissioner, (2) Municipal Cororation of Vadodara, (3) Mr. Brar, D.I.G., Police, Vadodara, (4) Mr. Bipinbhai Shah, Ward Officer and (5) Mr. B.P. Sarvaiya, Dy. Superintendent of Police, and State of Gujarat as respondent No. 6 as formal party by two separate group of applicants, that the learned counsel for the respondent Municipal Corporation has given an undertaking to the Court on 20.8.97 for not demolishing or removing the cabins until the hearing of the LPA the next day but the same were demolished before hearing on 21.8.97 in breach thereof. On the next date of hearing on an objection from learned counsel for the Corporation, Mrs. Vilasini Ramachandran, I.A.S., Municipal Commissioner was impleaded as respondent No. 2A in her personal capacity. Prayer was made for committing the respondents for contempt of court. Claims to compensation, restoration of cabins on site and award of exemplary cost were also made.
2. We have heard the learned counsel for the parties.
3. It was urged on behalf of applicants that the respondent No.2 Corporation and its officers respondents Mrs. Vilasini Ramachandran, the Commissioner (respondent No.2A), M/s H.S. Patel, Dy. Commissioner (respondent No. 1) and Bipinbhai Shah, Ward Officer (respondent No. 4), who are responsible for conduct of business of the Corporation are guilty of contempt of court by committing wilful breach of the undertaking given to the court by respondents nos. 1, 2 and 2A and respondents nos. 3, 4 and 5 for having aided and abated in committing the breach.
4. Respondent No. 3 in his affidavit filed on 9.7.99 disclosed that he was not only on leave but was not even present in the city of Vadodara and was not discharging any official duties on that day. This fact is not denied. Accepting that fact, notices against him were discharged on 26.7.1997. Respondents Nos. 4 and 5, without furnishing any justification has tendered their unconditional apologies.
5. Respondent No. 1 Mr. H.S. Patel, who filed his affidavit in first instance on 15.9.97 soon after tendering his unconditional apology to this court, set out the circumstances in which the cabins were removed under the orders of the Commissioner, detailing the background of the litigation in connection with the removal of the cabins and orders made in the previous litigation which ultimately culminated in directions from the Supreme Court for framing a scheme for the city of Vadodara providing for hawking and non-hawking zones. In accordance with the same a scheme was framed and approved by this court. About the incident which led to the filing of these applications it was stated in para 12 as follows:
" I say that on 19th August 1997 the corporation-Advocate Shri P.G. Desai informed the Commissioner that representatives of the petitioners want to meet the Municipal Commissioner on 20th August 1997 and accordingly, the Commissioner agreed to meet the representatives of the petitioners. On 20th August 1997, the Commissioner remained in the office from 08.30 a.m. I was present before this Honourable Court and this matter was called out at 12.15 p.m. The learned advocate for the petitioners requested to keep this matter back. During this time, we contacted the Municipal Commissiosner, but the Municipal Commissioner stated that till this time, no representative of the petitioners has come to her. Then after the matter came up in the afternoon session at 02.45 p.m. A mention was made by the learned advocate for the petitioners that as the time limit, i.e. 20th August 1997 expires for removing the encroachments and accordingly the corporation should not forcibly remove the encroachments. Then after, the court said since there are other part-heard matters, which are required to be heard, thereafter, tomorrow after 3-4 fresh matters, this case will be heard. After that I met the learned Additional Advocate General and he informed me that since the mention is made the corporation should not remove forcibly till 21st August 1997. When I reached Vadodara at 08.45 p.m. I informed the Municipal Commissioner that the mention is made that no encroachments should be removed forcibly till 21st August 1997. Then she said to me that by the time matter is mentioned before the Honourable Court in the afternoon session, the representatives of the petitioners met me and some agreement and arrangement arrived at and she informed specifically that the learned Single Judge vide his order dated 07th August 1997 there is no injunction but only seven days were granted to remove the encroachments themselves. Further on 13th August 1997, a further request was made to the learned single Judge. Again with the same observations directed the petitioners to remove the encroachments since it violates the direction of Honourable the Supreme Court of India. I say that, accordingly, municipal commissioner passed an order to remove the encroachments and on the date on 20th August 1997 night itself, after the expiry of the period all were informed that since the time limit is over, you have to remove yourself. In the morning of 21st August 1997 at 06.30 a.m. again they were informed to remove themselves. Some of them i.e. Bank Road, R.C.Dutt Road in and around Julelal, some of nearby Ward Office, they removed and carried away the goods themselves. After the information at 07.45 a.m. the demolition started and removal of cabins was over by 10.30 a.m. and it was informed to the Corporation-Advocate, Shri P.G. Desai by the Municipal Commissioner. I say that as the Deputy Municipal Commissioner, I had acted as per the orders of the Municipal Commissioner. I say that the Corporation officers including me and the Commissioner, have acted bonafide in good faith in the interest of city. I say that if anything taken otherwise, as we acted bonafidely in this case, we may kindly be excused. Further I say and submit that on 20th September no oral or written orders regarding status quo was passed by the Honourable Court and to my knowledge no proceedings was drawn by the Court to that effect. On the contrary, I respectfully submit that till date corporation has obeyed all the oral and written orders passed by the court in this regard and therefore, there is no question of willfully defying the orders of this Court."
A rejoinder was filed on behalf of the applicant.
6. Respondent No. 2A at the first instance filed her affidavit on behalf of the corporation on 10.9.97. In this affidavit asserting that she holds this Honourable Court in high esteem submitted unconditional apology. It was further stated in the affidavit that all actions taken by her for the corporation and for the City of Vadodara were bonafide and in public interest. It was further stated that in view of the facts and circumstances the action was necessary and it was the obligatory duty of the corporation to carry out the directions passed and/or issued by the Honourable Supreme Court of India to see that the said Scheme is implemented and no attempt to thwart such a scheme by anyone can be encouraged. In any view of the matter, it was submitted that it is not correct to say that any order is passed by this Honourable Court or that any undertaking is given by the counsel appearing on behalf of the corporation. She has in her affidavit narrated the happening that took place on 19.8.1997 and 20.8.1997. Relevant assertion in this regard we shall notice at appropriate stage later on.
7. On being impleaded as party in person another affidavit was filed by respondent No. 2A the Commissioner on 10.10.97 again reiterating the stand taken in earlier affidavit along with the unconditional apology. A further affidavit in rejoinder was also filed by the applicants denying all the assertions made by the respondents in their affidavits. A separate affidavit in reply was filed by respondent No.2A which was sworn on 17.12.1997. From the record it appears that the respondents have approached the Supreme Court against the issuance of notice initiating the proceedings. After grant of interim stay against further proceedings in these applications ultimately the SLP was dismissed on 20.11.1998.
8. Before proceeding with the hearing of these applications, on 1.7.1999 we directed respondent No. 2A the then Municipal Commissioner Mrs. V. Ramachandran and respondent No.1 Mr. H.S. Patel, the Deputy Municipal Commissioner to remain present before this court on the next date of hearing on 5.7.99 and on the succeeding dates of hearing also.
9. On 5.7.1999 the matter was adjourned to 9.7.1999. On 9.7.1999 respondents Sos. 1 and 2A furnished separate affidavits. Respondent No. 2A in her affidavit has tendered her unconditional apology for whatever done by her regarding the removal of cabins on 21.8.97. She accepting her full responsibility stated that the entire action regarding the removal of cabins on 21.8.97 were taken by Dy. Municipal Commissioner and other officers of Vadodara Municipal Corporation under her orders. She further stated that she regrets for the aforesaid action which were in breach of statement by the learned advocate of the corporation that no action will be taken till 21.8.97 and she has tendered her unconditional apology for the breach of the aforesaid statement. In the later part of the affidavit expressing regret she explained her statement made in her earlier affidavits about the issue whether any undertaking was given to the court explaining the fact what made her to make the previous statement in the affidavit. It was averred, "I sincerely regret that the aforesaid actions were in breach of the statements made by the learned counsel on behalf of the Municipal Corporation that no action for demolition of cabins will be taken till 21st August, 1997 and I sincerely and unconditionally apologise for the breach of the aforesaid statement."
10. Mr. H.S.Patel respondent no.1 in the affidavit dated 9.7.99. In this affidavit he has stated that " I regret that the action of 21.8.97 was breach of the statement made before this court by the learned advocate for the corporation and I sincerely and unconditional apologise for the same."
11. As noticed above respondent No.5 B.S. Sarvaiya, District Supdt. of Police, Vadodara who was working at the relevant date as Assistant Commissioner of Police Baroda City filed his affidavit and in his affidavit without adding anything more he has stated that "I regret whatever was happened on the date of the incident on 21.8.97". He has requested to accept his sincere apology.
12. Respondent No.4 Bipinbhai Shah filed his affidavit on 21.7.99 stating "in my supervision the removal of cabins was carried on 21.8.1997 and I regret for the same."
13. After arguments of learned counsel for the parties completed, before expressing opinion of the court, we put to respondent No.1 and respondent No. 2A whether they have to say anything on the subject. Respondent No. 2A and Respondent No. 1 have responded as under:
Respondent No. 2A, Mrs. Vilasani Ramachandran:
"Your Lordships I have tendered my unconditional apology with a clear understanding that there was a breach of the statement. Therefore, there is no scope for justification of the action which I have taken keeping in mind the circumstances that prevailed on that day. I would only urge Your Lordships to accept my apology if deem fit and proper and nothing further to add."
Respondent No. 1 Mr. H.S.Patel made this statement, "I have also tendered my unconditional apology which may please be accepted. My statement is also recorded earlier before the Court and therefore, I do not want to justify any action. My apology may please be considered."
14. With this background about the existing state of affairs, we have to examine firstly whether the respondents can be held liable for committing wilful breach of the undertaking and if so what should be appropriate orders in the matter. Insistence of the learned advocate advocate for the applicants is that the alleged acts not only amount to breach of undertaking resulting in civil contempt but also amount to criminal contempt and apology tendered by these respondents have to be considered in that context.
15. It is apposite that a brief review is made of chequered history of dispute between the Corporation on the one hand and the persons carrying on business on the pavement of the road as a class. The dispute ranges from the question whether occupants of the site as cabin holders have tenancy rights, whether the Corporation has a right to summary ejection of these occupants including cabin holders in exercise of its statutory authority. It is not in dispute before us that all the applicants in the Special Civil Applications out of which these proceedings have arisen are amalgamation of different group of persons having cabins in different part of Vadodara city. Not all of them were parties in all of the previous proceedings but amalgam of different groups from previous litigation, numbering small or big, and also those who were themselves not party to any litigation but claim to be representatives of earlier litigating parties. The history of litigation, we shall be viewing in the present context without referring to any particular petitioner. In 1958 some suits were filed by erstwhile cabin holders challenging the right of Baroda Municipality to evict the plaintiffs alleging themselves to be tenants which resulted in dismissal at the level of the Trial Court. But they partly succeeded in appeal before the District Court which held the right of Municipality to evict the occupatns under them.
19.8.1999
16. As illustration, Civil Suit No. 1773/58 filed in CJ (SD) in representative capacity alleging that Municipality Board has no right to invoke provisions of Municipal Boroughs Act as total area in question did not vest in municipality and it had no right to realise lease money from the occupants. The said suit along with two cognate suits were dismissed by trial court holding that plaintiffs were estopped from denying title of Municipality. On appeal, the appellate court held on 31.8.63 that suitors have not built structures of permanent character and they have failed to prove that their case fell u/s 80(a)(b) of Easement Act or that licence was not revocable. However, it held that occupants were tenants and could not be summarily evicted. This was under Municipalities Boroughs Act. In 1966 the respondent No. 2 Corporation was constituted and BPMC Act was applied. Thereafter under the BPMC Act occupants were given notices u/s 437A(2). Notices were issued describing them as 'license holders' and also stating that if they treat themselves as tenants, their term of tenancy having expired, they are intended to be evicted. After hearing them they were required to vacate premises within one month by order dt. 20.1.67. These proceedings led to filing of S.C.A. No. 1124/66 before this court challenging constitutional validity of sec. 437A of the BPMC Act, which challenge in first instance, was upheld by this court as per decision reported in Ramanlal Govindram v. Ahmedabad Municipal Corporation and ors., 11 GLR 1, but on appeal the validity of statute was upheld by apex court vide judgment reported in AIR 1975 SC 1187. This followed with issuance of a circular by Government on 7th June 1976 informing that wherever displaced Sindhi persons had constructed cabins and were paying rents are to be removed, that should be done after providing alternative accommodation. It appears that thereafter when proceedings for eviction were commenced, the Association of Larriwallas, gallawallahs, pathanawallas and such individuals from Ahmedabad, Surat and Vadodara who had set up cabins or stalls were having hand carts with four wheels or were squatting on public streets or footpaths challenged the provisions of sec. 230 and 231 of BPMC Act alleging the same to be violative of their fundamental rights. These petitions were dismissed by a Division Bench of this court following decision of Bombay Hawkers' Union and others v. Bombay Municipal Corporation and others, (1985)3 SCC 528 and Olga Tellis and others v. Bombay Municipal Corporation and others (1985)3 SCC 545. However, the court directed the respective corporations to formulate a scheme on the same lines as was approved by Supreme Court in Bombay Hawker's case (supra). The Corporations went in appeal before Supreme Court which were disposed of along with a group of petitions directly filed before the apex court on 2.5.86 in following terms:
"1. The petitioners/appellants undertake to this Court that they shall remove their hand-carts and/or gallas, cabins, etc. on or before December 31, 1986. However, this undertaking by the appellants/petitioners will be subject to clause (2) below. Such undertakings should mention the exact places of their present trading. The undertakings to be filed by July, 1986.
2. The appellants/petitioners, however, will beat liberty to adopt appropriate proceedings in respect of locations of the area of the places in the trading zones where the appellants/petitioners and other hawkers will be permitted to carry on their trade in the final scheme.
3. The Municipal Corporation of Baroda shall give an opportunity to the appellants/petitioners to make their representations and will take them into consideration when it fixes hawking and non-hawking zones, the final scheme.
4. The Municipal Corporation, Baroda, should fix such zones expeditiously and in any case on or before December 15, 1986.
5. The interim scheme as approved by the Surat cases in clauses (5) of the Surat matters may be implemented subject to the modification that clause (4) of the Baroda interim scheme shall be deleted.
There is no order as to costs."
17. In pursuance thereof, a scheme was prepared by the Corporation fixing the hawking zones. Challenge to scheme vide SCA 3138/98 failed and this court approved the scheme. Thereafter some persons resorted to various proceedings by approaching civil court and obtained injunction against eviction by alleging improper implementation of scheme. When the matter was taken to Supreme Court, by Vadodara Corporation, the court dismissed the suits and vacated all injunctions. The court observed while disposing of the petition on 3.5.89:
"We are of the view that it was an attempt to thwart the scheme by approaching the civil court. It is an abuse of process of court and gives rise to a situation where contempt action would lie. We however do not propose to take such action, but consider it very appropriate and in the interest of justice to direct dismissal of suit itself."
18. Meanwhile, some cabin holders apprehending drive for evicting them from public streets or footpaths approached this court vide SCA 7396/88. The court dismissed the petition on 22.2.96 by holding it to be premature but directed that if the corporation takes any action for eviction against petitioners in accordance with law it shall not be enforced for a period of 15 days to enable them to have recourse to any remedy that maybe available to them. This followed with current litigation by way of Special Civil Applications Nos. 3420/97 and group of petitions out of which these proceedings have arisen, as noticed above, after a learned single Judge of this court dismissed all petitions on 7.8.97 taking note of above chequered history of case and LPA against the said judgment is pending hearing.
19. Keeping in view the aforesaid circumstances, we now notice relevant provisions of the Contempt of Courts Act, 1971. A "civil contempt" has been defined u/s 2(b) to mean "wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court" and "criminal contempt" has been defined u/s 2(b) to mean "publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."
The definition clause distinguishes the two categories of the contempt in the sense, whereas, civil contempt is primarily related to disobedience or defiance of an order or direction of court or dishonouring any undertaking given to a court which is treated at par with a breach of injunction, so far as consequences are concerned and aimed to seek enforcement of an order of the court which a party to the proceedings is directed to do or forbear from doing and acts in contravention thereof and the defiance of such direction is dealt with properly. The conduct which is brought within the purview of criminal contempt is one that affects adversely the very dignity of the court and the majesty of law in the eye of people affecting their faith in efficacy of rule of law and which interferes with or tends to interfere with course of any judicial proceedings in particular or in the course of administration of justice in general. While we are unable to agree with the contention of learned counsel for the respondents that an act of civil contempt can never fall within the category of criminal contempt, we are also unable to accept the broad proposition canvassed by learned counsel for the petitioners that every wilful disobedience of a direction of the court must be deemed to interfere with or tending to interfere with the due course of the judicial proceedings wherein orders made, injunction granted or undertaking given to the court is breached by a party. The line that exists between the two is that while a disobedience of the injunction of the court as its touchstone, the contours of enquiry surrounds the order directed to be carried out and straying of the parties beyond it. If an act, but for the order passed by the court, or is in breach of undertaking given to the court, is otherwise within the legitimate exercise of the power of the authority and notwithstanding the act being not in accordance with law, does not by itself fall in the category of criminal contempt as envisaged u/s 2(b). It would not transcend the field of civil contempt, merely because it has been made during the pendency of the proceedings in which such order or injunction has been made or undertaking has been given, though, because of the order having been made, the breach thereof may result in affecting the status in between the parties and may tend to affect the ultimate result of the proceedings for the relief that may be granted in a particular case. In other words, if independent of being in breach of the orders of the court or in breach of undertaking given to the court, the act prejudices or interferes or tends to interfere with the due course of any judicial proceedings or generally in the administration of justice in any manner, it may also amount to criminal contempt in addition to being a civil contempt.
20. If we examine the facts of the present case in the light of this distinction, it appears to us that, but for the alleged statement made on 20.7.98, the action of respondents cannot be considered to be falling in the category of conduct which could be said to cause prejudice or interferes or tended to interfere with the due curse of the judicial proceedings. We have already noticed, while referring to the history of the case, that in the long run, of proceedings at different stages, there are two orders of the Supreme Court. One requiring undertaking from the petitioners or appellants before the Supreme Court to remove their hand carts and/or gallas/cabins on or before 31.12.86. Other dubbing subsequent attempt by various persons to obtain interim order from the civil courts or other forums after the scheme providing hawking and non-hawking zones in the city of Vadodara as approved by this Court as an abuse of the process of the court for thwarting the scheme and holding such conduct to be contempt of court. The fact that the Supreme Court did not proceed against those suitors for committing them for contempt does not take away the message inherent into it that any attempt which affects the scheme approved for the traffic betterment of the city of Vadodara through indirect means is not to be viewed lightly. Thereafter when the present petitions were filed and precisely an issue was raised between the parties whether the petitioners are entitled to any protection against the notices of eviction on the basis of judgments given in the civil suits or earlier proceedings or in the name of following the procedure required under the Municipality Act other than by way of summary eviction or on the ground of not providing alternative accommodation. A learned Single Judge of this court held the said contentions to be not tenable in view of the aforesaid two decisions of the Supreme Court. The learned Single Judge has gone to the extent of refusing stay of the operation of the order for the purpose of filing appeal by the petitioners by holding that 'the same would amount to violating the orders of the Supreme Court'. Mere fact that petitioners were allowed time to vacate the premises voluntarily does not operate as clog on the authority of respondents to evict the petitioners on expiry of time allowed for voluntary removal of cabins merely because they in exercise of right of appeal has challenged the order unless any order was made by the appellate court to stay the hands of Corporation. Admittedly until before 21.8.97 afternoon, no such orders had been made and demolition or removal of cabins had taken prior to the making of an order for maintaining status quo, and possession of site was taken by the Corporation.
21. In these circumstances, we are of the opinion that but for self-restraint, after the expiry of period granted by the court for voluntary removal of the cabins from site, the respondents, in legitimate exercise of their authority, could have removed the cabins notwithstanding the appeal being pending, in absence of any order from the court, without inviting the provisions of Contempt of Courts Act. That being so, if the action cannot fall within the purview of contempt but for the alleged undertaking, we must repel the contention that the impugned act independent of civil contempt, also amounts to criminal contempt.
22. In this connection, we notice that learned counsel for the respondents have urged that cognizance of criminal contempt could be taken only in the manner prescribed under sec. 15 of the Act of 1971. The provision envisages that cognizance of criminal contempt can be taken by the High Court either on its own motion or on a motion made by the Advocate General or any other person with consent in writing of the Advocate General or in relation to the High Court for the Union Territory, by an appropriate authority notified in that behalf or with his consent in writing. Obviously, in view of the order dated 21.8.97, it cannot be considered to be a case of suo motu initiation of proceedings. As it is apparent from the order, while the court noticed about statement having been made on 20.8.97 and a complaint having been made that in breach of that statement the cabins have been removed and also noticing that the removal of cabins having not been denied, it did not think fit to initiate proceedings suo motu but has expressly left the parties if they desired to take out appropriate proceedings. Further, after recording statement of Mr. H.S. Patel and Mr. Thorat on 27.8.97, it had still not thought it fit to initiate proceedings suo motu. It is also not the case of either of the parties that it fulfils any of the three conditions for taking cognisance of a criminal conduct as required u/s 15. But that, in our opinion, is of academic importance, firstly, because we have reached conclusion that this is not a criminal contempt and secondly, once an action for proceedings for contempt has been initiated vis-a-vis a particular action if that action is found to be a contempt of court, punishment invariably depends on the gravity of the conduct and its fall out keeping in view the provisions of sec. 12. That makes it always relevant for consideration whether the act in question amounts to a civil contempt simpliciter or it has also the ingredient of impeding judicial proceedings or administration of justice so as to fall within the category of criminal contempt, so that appropriate sentence may be devised accordingly, in case it is found a case which is fit to punish the accused of contempt. Therefore, we are of the opinion that though cognizance may not have been taken as a criminal contempt, inquiry into the nature of contempt cannot be ruled out once proceedings have been initiated simply on the ground of how and in what manner the proceedings have come to be initiated. We also notice that sec. 12 envisages that while ordinarily a civil contempt may not be visited with punishment of imprisonment unless there are special circumstances, no such inhibition exists in respect of criminal contempt. A civil contempt tends to affect the parties only. The criminal contempt affecting the dignity of court and majesty of law, has direct impact in prople's faith in efficacy of rule of law through established machinery for administration of justice. Where the impugned acts prejudices, or interferes or tends to interfere with pending proceedings or with the administration of justice affecting the free flow of stream of justice that would certainly provide basis for departing from the rule against sentence of imprisonment in the case of civil contempt. Be that as it may, as we have found that this is not a case of criminal contempt, we need not pursue further this discussion.
23. The question that now needs be examined is whether the alleged acts brings the case within the purview of a civil contempt. The undisputed facts are that a statement was made on 20.8.97 on behalf of the Municipal Corporation and the Corporation has acted in brech of such statement under the orders of respondent No. 2A, the then Municipal Commissioner and cabins of the petitioners were removed on 21.8.97 before further proceedings took place in court in LPAs filed by the petitioners-applicants. However, no proceedings were drawn on 20.8.97 recording that statement. The fact of making a statement was not in dispute at any point of time. However, for reaching the conclusion that impugned acts amount to civil contempt, it must be established clearly with reasonable certainty that such a statement was made to court as an undertaking to court. What we have to consider from the material before us is that whether it can be said beyond reasonable doubt that statement was made as an undertaking to the court or statement was an assurance given to the opposite party.
20.8.1999
24. Undoubtedly, unconditional apology has been tendered by respondents abandoning any plea of justification before us. However, we are of the view that before we consider the question of acceptance of apology, it becomes imperative that we consider whether a case for breach of undertaking to court has been made out or not, inasmuch as an apology neither amounts to purging of contempt nor is a defence to contempt. The apology and its consideration stand on the premise that the case for civil contempt or criminal contempt has been made out and the accused is to be covnicted for such contempt. The real remorseful apology showing contrition of the contemner is a factor relevant for considering whether the offence of committing contempt of court is mitigated in its seriousness and mercy can be shown for considering the question of sentence of the contemner. Therefore, before we consider the question of apology, we have to look at the facts to reach independent conclusion whether a case for contempt by breach of any undertaking given to court has been made out. Proceedings for contempt are quasi criminal in nature. Before a person can be punished a clear case for conviction is to be made out. An apology, which is for mitigating the consequence, cannot necessarily in all circumstances be equated with confession of guilt.
25. The apex court in K.T. Chandy v. Mansa Ram Zade, AIR 1974 SC 642, rejecting the plea of the applicant respondent that since accused has tendered apology and the High Court has accepted the same Supreme Court should not interere with the order of high Court said, "Counsel for the respondent has submitted that as the appellant had tendered an unconditional apology in the High Court, we should not interfere with the High Court's order. We are unable to appreciate the submission. Apology goes to sentence and may be accepted only upon a finding that contempt has been committed. The High Court has in fact held that the appellant has committed contempt. But it has accepted his apology and refrained from awarding any punishment. Moreover, the appellant has been directed to pay Rs. 200/- as costs to the respondent. So the appellant is entitled to have the order of the High Court set aside."
26. An undertaking, in the context of judicial proceedings, has been defined in Black's Law Dictionary, "In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party."
To Somewhat same effect meaning has been assigned to undertaking in Jowitt's Dictionary of English Law.
"Undertaking" is frequently used in the special sense of a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party."
27. In this connection, it is pertinent to notice that under the Act of 1971, it is wilful breach of undertaking given to a court that has been brought within the purview of a civil contempt. It clearly leaves out a wilful breach of undertaking given to party, as distinguished from an undertaking given to a court, from the purview of the contempt proceedings. Notwithstanding that an act is in gross breach of assurance given by one party to another, may not be countenanced, and give rise to claim for damages to aggrieved party but that does not provide the foundation for the contempt proceedings. Another principle which governs the issue about breach of an undertaking in the context of contempt proceedings is that it is to be established beyond any reasonable doubt clearly what was the undertaking given, to whom the undertaking was given, and for what the undertaking was given.
28. It is to be borne in mind, notwithstanding that breach of undertaking carries with it same consequence as a breach of injunction, while the latter is embodied in directions issued by a court and there is no question about the terms in which it has been issued, as its contents emanate from the proceedings of the court, about the former the same thing cannot be said. The undertaking can be in writing as well as oral. In the case of an undertaking to the court in writing, there may not be any difficulty in ascertaining what the undertaking is. However, the question becomes important in the case of oral undertaking.
29. The principle has been enunciated by the Suprme Court in Babu Ram Gupta v. Sudhir Bhasin and Anr., (1980) 3 SCC 47 that "any person appearing before the court can give an undertaking in two ways. Firstly, that he files an application or an affidavit clearly setting out the undertaken given by him to court, or by a clear and express oral undertaking given by the contemner and incorporated by the court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act."
The court also pointed out that "there is clear-cut distinction between a compromise arrived at between the parties or a consent order passed by the Court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by either executing the order or getting an injunction from the court."
30. We are here concerned with a situation where an oral statement has been made by whom we shall presently discuss the purport of which is fairly clear that the respondent Corporation shall not demolish cabins in question until the matter is heard on the next day. However, on the day when this oral statement is alleged to have been made, the court has not recorded any proceedings incorporating the undertaking in its order. It is undoubtedly true that mere failure to record proceedings of the day by some inadvertence or otherwise would not absolve a person from the consequences of breach of the undertaking if it is clearly established from other material with fair amount of exactitude which could spell out actual words spoken, to whom the undertaking was given, whether to the court or to the party and thirdly for what purpose the undertaking was given. The purpose for which undertaking has been given also assumes importance from the fact, as we have noticed in the definition, and as we will presently see, that it is an essential ingredient of an undertaking to become foundation for a potential contempt proceedings that it must be made to a court in order to achieve some advantage, whether by acting positively or by forbearing to do something to obtain an order or ward off suffrage of an order which it would otherwise be subjected to or is likely to be subjected to.
31. In this connection reference may be made to Naraindas v. Government of Madhya Pradesh and others, AIR 1974 Suprme Court 1252. It was a case in which proceedings against one of the contemners were initiated on the ground that on 19th June 1973 when the applications for interim injunction and stay were heard by the learned vacation Judge, Mr. Y.N. Chaturvedi had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the Text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May 1973 by permitting the respondents to put in circulation and sale those 29 text books. It was alleged that a subsequent report published in 'Hitwad' containing alleged statement of State Minister Mr. Arjun Singh that reopening of schools have been postponed because of non-availability of the 29 text books for circulation and the interim order sought from the Supreme Court was founded on incorrect statement. Though, on facts the court found, keeping in view the affidavit filed that reopening of schools was not postponed because of the non-availability of 29 text books, it observed, "now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceedings and thus amount to contempt of court. On reaching this conclusion here we cannot say that it is established satisfactorily by the appellant that any deliberately wrong or misleading statement was made or got made by Y.N. Chaturvedi with a view to obtain a relaxation of the interim order dated 18th May 1973." With this finding, the proceedings of contempt were dropped.
32. The principle governing the breach of undertaking were thus explained by the apex court in Noorali Babul Thanewala v. Sh. K.M.M. Shetty and others, AIR 1990 SUPREME COURT 464:
"When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt."
These decisions fortify our conclusion that before a person can be convicted for committing contempt on account of wilful breach of undertaking given to the court, three facts must be established that undertaking, oral or written, was given to a court, such undertaking, if not tendered in writing, must form part of the proceedings, and such undertaking must be for the purpose of obtaining a favourable order in that on the faith of which the court sanctions a particular course of action or refrains from adopting a particular course of action.
33. The first and the most important material in the absence of any record of proceedings of 20th August 1997 is the order of the Division Bench hearing Letters Patent Appeal recorded on 21.8.97, relevant part of which reads as under:
"It is complained that yesterday mention was made and matter was ordered to be kept today and to maintain status quo till today. In fact, at that time in presence of the learned counsel for the respondent-authorities it was stated that no demolition will be effected till today. Mr. S.N. Shelat, learned counsel appearing for Mr. P.G. Desai confirms that such a statement was made and that it was conveyed by him to Deputy Municipal Commissioner Mr. H.S. Patel."
The aforesaid statement of facts in order dated 21.8.97 have three limbs. Firstly, it was complained by the present applicants that "yesterday a mention was made and the matter was ordered to be kept today and to maintain status quo till today." This limb suggests that it was contention of the applicants then, that it was an order of the court that status quo be maintained until next day. The complaint of the petitioners at that stage did not suggest that any undertaking was given to court. The second statement which emerges from the aforesaid order is "in fact at that time in presence of the learned counsel for the respondent-authorities it was stated that no demolition will be effected till today." This statement of fact negates the suggestion made by complainant that any order was made by the court. It envisages that a statement was made by some person other than the learned counsel for the respondent authorities. This statement, by itself, does not suggest whether a statement was made by the learned counsel or by somebody on behalf of the Corporation. The third statement of the order reveals that "Mr. S.N. Shelat, learned counsel appearing for Mr. P.G. Desai confirms that such a statement was made and that it was conveyed by him to Deputy Municipal Commissioner Mr. H.S. Patel". This also does not disclose who made the statement on which Mr. S.N. Shelat has conveyed this statement to Deputy Municipal Commissioner Mr. H.S. Patel, who was undisputedly present in court on that day. Left to the statement of facts recorded in the proceedings of 21st August 1997, one cannot discern whether the statement was made to the court and by whom the statement was made. It also throws open to doubt as to understanding of the parties inasmuch as while the petitioners considered it to be an order of the court in response to mention made by them on the previous day but which the court did not confirm it but rest contended by stating that such a statement was made.
34. In these proceedings specific averment of the applicants is that a statement has been made by Mr. S.N. Shelat on behalf of the Corporation which fact is now no more disputed that such a statement was made by Mr. S.N. Shelat. However, exact wordings of the statement and to whom the statement was made has still not come clearly out of the proceedings of 21st August 1997.
35. In chronological order, one may look at the contemporaneous conduct of the applicants in sending telegrams in the wee hours of 21.8.97 which have been placed as supportive material along with the present application. There are two sets of telegrams sent to municipal authorities as well as police authorities by two different group of persons. One finds that first telegram annexed addressed to respondent No.2A reads as under:
"We the undersigned request you that today in Hon. Court at the time of hearing of cabins leave petition it was decided not to take any forceful action to remove the cabins till the next hearing which is kept for tomorrow. This was agreed by your advocate Mr. Pranav Desai and Attorney Journal Mr. Shelat."
From the tenor of this telegram, it appears that this telegram has been given in consultation with their advocates as it also records, "we have consulted our advocate Mr. S.B. Vakil and your advocate Mr. Pranav Desai."
36. The telegram sent to Mr. H.S. Patel, respondent No. 1, by very those persons who sent above-referred telegram to respondent No.2A, is identical in its expression. So also the telegram to respondent No.3, proceedings against whom have since been dropped, carried the same contention.
37. Yet another telegram was sent on 21.8.97 to respondent No.2A, by another group, the relevant part of which reads:
"the matter is on board and there is consent statement given orally before court not to disturb our possession till further hearing which is fixed for tomorrow"
This telegram was given by person other than those who had sent telegrams referred hereinbefore viz. (G.B. Makhijani and H.B. Makhijani). Another telegram was sent to Police Commissioner (Jagdish Chawla for all cabin holders at Lehripura Chaugan). Said telegram reads:
"We, the cabin holders, have been given consent before Justices of High Court bench, by Municipal Corporation legal Advocates in presence of Deputy Commissioner not to disturb our possession till further hearing which is fixed for tomorrow."
All these telegrams are suggestive of the fact that consent for not demolishing the cabins was given by or on behalf of Corporation to the party albeit before the court, for desisting from demolition of cabins until next day.
38. On the very first opportunity, after oral complaint was made to court, but before contempt petitions were filed, Mr. H.S. Patel was examined by the court on 27th August 97 in which it was stated, after referring to the details, what happened at pre-afternon session, about which there does not appear to be any variance, that some talks were to take place between the Commissioner and the representative of the parties a mention for the hearing of the case was to be made after 2.45 on 20.8.97.
"Then after, the matter came up in the afternoon session at 2.45 p.m. A mention was made by the learned advocate for the petitioners that as the time limit i.e. 20th August 1997 expires for removing the encroachments and accordingly the corporation should not forcibly remove the encroachments. Then after, the court said since there are other part-heard matters, which are required to be heard, therefore tomorrow after 3-4 fresh matters, this case will be herd. After that I met the learned Additional Advocate General and he informed me that since the mention is made, the Corporation should not remove forcibly till 21st August 1997. When I reached Vadodara at 8.45 p.m., I informed the Municipal Commissioner that the mention is made that no encroachments should be removed forcibly till 21st August 1997......"
This statement reveals the first response by the corporation about the controversy even before any contempt proceedings have been initiated that it was conveyed to Mr. H.S. Patel by Mr. S.N. Shelat, learned counsel appearing for the Corporation that no encroachment should be removed forcibly because mention has been made. This accords with the facts recorded by the court on 21.8.97 regarding the confirmation from Mr. Shelat that such a statement was made and conveyed to Mr. H.S. Patel, Dy. Commissioner. This also accords with the statement made in telegrams to various authorities that consent was made by the Corporation through their counsel that cabins will not be demolished and Deputy Commissioner was informed about it.
23.8.1999
39. Another facet of these proceedings may be taken note of. There is no dispute between the parties in substance that on 20.8.97 neither of the party was seeking adjournment but it was due to ongoing business of the court it was not possible for the court to take up the matter on that date when the mention was made by the petitioners at 2.45 p.m. for the purpose of taking up the matter for hearing. There is also no dispute that in first session of hearing the petitioners were awaiting outcome of the meeting of the petitioners' representatives with the Municipal Commissioner for which a request has been made through the counsel for the Corporation on 19.8.97 and the opportunity of hearing was not availed when the matter was called out in the first session of hearing. It has been stated in the application itself, in the first instance, that "on 19.8.97 applicant's advocate conveyed to Mr. P.G. Desai that if applicants were either provided by the municipal authorities with pucca structures for carrying on business at the offered alternative site or were permitted to make pucca constructions at alternative sites, the applicants would agree to shift to those pucca constructions...... It was agreed between Mr. Pranav G. Desai and the applicant's advocate Mr. S.B. Vakil that representatives of the applicants may wait upon the Municipal Commissioner on 20th August 1997 and to await what transpires between them and the Municipal Commissioner, the hearing of the Letters Patent Appeals be got stood over till 2.45 p.m. when the court would assemble after the recess."
It was then stated that "the Letters Patent Appeals were called out for hearing at about 12.10 p.m. and by consent of the parties stood over till 2.45 p.m., the same day. The applicants' representatives who had gone to wait upon the Municipal Commissioner were given hearing at 12.30 p.m (the timing of the meeting by respondents is stated to be 1.10 p.m.). The Municipal Commissioner insisted that the applicants will have to remove the cabins immediately and shift to the alternative sites and if they agree to do so, she would make a strong recommendation to the general body of the Municipal corporation that either the municipal authorities construct pucca structures at their own cost or permit the applicants to make such constructions at their cost. The Municipal Commissioner stated that she had no powers to permit pucca structures to be made or to construct the same even at the cost of the applicants at the alternative sites."
About this submission also, there is no substantial variance between the applicants and the respondents. It was then stated in the application that "on 20.8.97 when the Hon'ble Court assembled after the recess, the advocates reported to the Hon'ble Court that there was no agreed solution between the parties and the appeal would be required to be heard on merits. The Honourable Court observed that the Bench was not available after 4.00 p.m. and there were some urgent matters on the Board and inquired from Shri S.N. Shelat, Additional Advocate General of Gujarat, appearing as counsel with advocate Mr. Pranav G. Desai, whether opponents Nos. 1 and 2 would maintain status quo for a day, that is, till 21st August 1997. At that time, the respondent No.1 Shri H.S. Patel was present. Mr. S.N. Shelat stated to the Honourable Court that no demolition would be effected for the next day. The same was also conveyed to respondent No. 1 by Shri S.N. Shelat."
40. From the aforesaid one thing is clear that the respondents were not seeking any order in their favour or against the applicants for which they needed to make any stastement or offer any undertaking. As we have already noted above, one of the ingredients which is essential for the purpose of making a breach of undertaking as a ground for initiating proceedings for civil contempt, the same must be with a view to obtain an interim order or a relaxation was absent. As is apparent from the facts, in fact it was the applicants who were in need for obtaining an interim order in view of rejection of their prayer for a stay during the interregnum period of filing their right of appeal, with clear directives that they have to remove voluntarily within specified period if they want to avoid an enforced eviction. Coupled with this, court having expressed its inabilityto take up thematter on 20.8.97, ordinarily the applicants needed assurance from the respondents to stay their hands until matter is heard. It is also apparent that there was no disagreement, on shifting to alterantive site proposed. The proposal of applicants for pucca construction was also not admittedly turned down by the respondent No. 2A but it was made clear that she would do all that can be done by her, by strongly recommending the request of applicants for fvaourable consideration, to the general body of the Corporation with whom authority in that regard vests. It however had been made clear that as things stand applicants will have to remove their cabins voluntarily within the time limit fixed by the court. Upto this stage of events there is no dispute. While the counsel for applicants had stated that they had communication about t his by 2.45 p.m., Mr. H.S. Patel has stated that by that time he had not received any communication of outcome of meeting. This disagreement or failure of talk was reported to them only by the applicants. The assertion that Mr. Shelat made a statement in response to the inquiry from the court is not reflected in the proceedings of the court itself dated 20.8.97 nor in the statement of facts that transpires recorded on 21st August 1997. We have further noticed in detail that the fact of any undertaking given to court is also not reflected in telegrams sent to various authorities prior to hearing on 21.8.97 in consultation with their advocates by the applicants. To us it appears to be more probable, looking to the circumstances, that it was difficulty of the court in hearing the matter that day. The counsel for the respondents along with respondent No.1 who was present in court has acted as any other counsel would have done in the circumstances by assuring the applicants that nothing shall be done until the hearing is taken as per convenience of the court. Had a statement been made to the court in response to the court's enquiry, ordinarily it would have found its recording in the proceedings of the day. We, therefore, cannot say that it is satisfactorily established that any statement to the court was made by Mr. Shelat as an undertaking to the court with a view to obtain any favourable order or relaxation from the court or on the faith of which the court sanctioned particular course of action.
41. With these conclusions, we are of the opinion that the action of the respondents which took place between the hearing of 20th August 1997 and 21st August 1997 strictly does not fall within the scope of civil contempt.
42. It is to be kept in view that proceedings of the contempt of court are quasi-criminal in nature and the alleged act or conduct must be strictly brought within the four corners of requirement of 'contempt' before the accused can be held guilty and punished for the same. Benefit of any reasonable doubt, on consideration of the probabilities, if any, goes to the accused.
43. Though taking note of facts in totality we have reached this conclusion in favour of the respondents, we be not understood to have approved the action of respondents No. 1 to 2A and 4. We cannot resist from observing that the respondents have acted in a most irresponsible and unreasonable manner. The respondent Corporation is a local authority and exercises sovereign power of the State. Its officers acting on its behalf are responsible for its conduct. The duty to act fairly is ingrained in all spheres of activity and is first obligation of any limb of the State. Acting in derogation of such duty to act fairly cannot have the seal of approval of any court. Notwithstanding the fact that on consideration of totality of facts and circumstances we have reached the conclusion that it is not proved satisfactory with certainty that the alleged acts fall within the four corners of contempt, there is no doubt in coming to conclusion that respondents have acted in breach of their duty to act fairly. It cannot be disputed, and has not been disputed, that at least a solemn assurance was given to the applicants on behalf of the Corporation that it will desist from altering the status quo and from demolishing the cabins until the next day of hearing which was hardly 24 hrs. away from the time when such assurance was given. The assurance was given with full knowledge in the presence of the very responsible officer of the corporation of the rank of Dy. Commissioner present in the court instructing the lawyers and by advocate of no less standing than the Addl. Advocate General of the State. The corporation was not acting under any direction of any court to demolish or remove the cabins forthwith. At best it could have thought it is to act as expeditiously as possible to give effect to directions of Supreme Court as observed by the learned single Judge for implementing the approved scheme of hawking zones in the city of Vadodara. That being the position, it was absolutely within the domain of the persons in charge of conduct of business of corporation to chose the time when to resort to forcible eviction and there was no imperative to move with lightning speed having come to know that assurance has been given to other party, in the usual course of conduct of proceedings in the court by the advocate in consultation with the Deputy Commissioner and there was no legal impediment in honouring that assurance and there was no reason for respondent No.2A to have acted with hot haste to order demolition and removal of cabins and to deploy police force for that purpose forthwith. Respondent No. 2A Mrs. Vilasini Ramachandran as Chief Executive of the Corporation is responsible for issuing directions to remove the cabins in spite of having been informed about the assurance made by the Dy. Commissioner. The affidavits filed by Mr. H.S. Patel in these proceedings and his statement dt. 27.8.97 leaves impression that he was not forthright in communicating the proceedings clearly to the Municipal Commissioner and avoided in the first instance to make a straight forward statement about statement made by the counsel in the court. Instead, he gave impression in his statement on 27.8.97 as if the statement by the lawyer was made in his absence and he was later on informed, and failed to make any effort, which as an officer of the responsibility of Dy. Commissioner he was bound to make to impress upon his superior to desist from insisting on removing of cabins contrary to what has transpired in court during the day. He too is responsible for the act of breach of faith. However, the same cannot be said about respondent No.4 Mr. Bipin Shah who is a Ward Officer and was in no position to act contrary to directions of his superiors, respondent Nos.1 and 2A, merely on the say of petitioners. He was not connected in any way with the court proceedings. He has acted merely on the orders of respondent No.2A.
44. Ordinarily, in such circumstances, restoration of status quo ante could have been considered. However, we find that in the circumstances of the case, the same cannot be granted at this stage particularly keeping in view the findings reached by learned single Judge, and keeping in view that the Bench hearing the Letters Patent Appeal having been apprised of such breach of faith and the facts about demolition having not been disputed, perhaps, for that very reason, has not ordered to restore status-quo ante. It has granted an order of maintaining status quo prospectively so that no further demolition of cabins, if still existing, may take place and that appropriate orders about restoration should follow only after the issue about the right of the applicants to continue on site as decided which was subject-matter of appeal, lest it may contravene the directions issued by the Supreme Court as interpreted by the learned single Judge.
45. With this conclusion reached, we would have refrained from examining the question of apology, for which arguments and submissions at length were addressed by the learned counsel for the parties. In the circumstances, we shall consider the question of acceptance of apology as well by assuming that a case for breach of undertaking to the court has been made out.
46. The various decisions referred to by both parties need not detain us for long inasmuch as there is no distinction on principle in the decided cases. An apology is not a weapon of defence. Apology neither purges nor washes away an act of contempt. It is at best a mitigating circumstance while considering the consequential orders to be made once a person is found to have committed contempt of court, civil or criminal. It is a factor relevant to be considered while devising the final order to be made against the contemner. An apology can only be considered which is in real sense remorseful and to the satisfaction of the court as a contrition by the respondents. Ordinarily, belated apologies are considered to be offered more out of fear of punishment than with a sense of contrition. But merely because the apology has been tendered, not at the first instance but at a later stage, by itself cannot be a ground for not considering it. Had it been so, proviso to sec. 12 which makes it possible even after sentence of punishment has been made, to remit the same on considering the apology given thereafter. In short, whether an apology tendered at any stage of the proceedings is to be considered as mitigating circumstances or not depends on facts and circumstances of that case and that principle is not inhibited by any precedent. The precedents serve as guidelines.
47. In the facts and circumstances of the case at hand, for the reasons to be presently stated, we are satisfied that the apology has come with a sense of genuine remorse and with contrition notwithstanding initial reply affidavits show that in almost undisputed fact situation a justification is sought to be made for the acts of demolition. Yet we find that unconditional apology by abandonment of plea of justification including technical pleas about an undertaking at all having been given to the court or it being not advantageous to the parties, the same have been offered before commencement of arguments without any effort being made to justify the acts and again reiterated the same before expression of opinion of court about 'contempt' on merit. But that is not the only reason which has prevailed with us. We have noticed from the facts stated above, firstly, that the respondents' plea right from the beginning has been that the applicants are not entitled to stay at the site in any manner in view of the decisions of the Supreme Court dated 2nd May 1986 and another order dated 3rd May 1989 where the Supreme Court denounced the attempt to thwart implementation of the scheme through new court proceedings as an abuse of the process of the court amounting to contempt. This plea found favour with the learned single Judge to be governing the case of the petitioners notwithstanding their contention to the contrary. The assertion of the petitioners in their own petition at least go to suggest that they had no objection to shift to the alternative site which was already offered to them and approved by them. The dispute was only with respect to their prayer for pucca construction over the alternative site. That dispute also on their own assertion was not rejected by the Commissioner but because the Commissioner is not authorised to grant that request, she has promised to recommend strongly to the Corporation to consider demand of the applicants favourably. Thus, so far as shifting of the cabins from the existing site was concerned, really no dispute existed even on the date in question. The applicants have shown their disagreement to the position taken by the Commissioner about only making recommendations in presenti but her insistence on removal of cabins from the site in terms of the existing orders. What transpires from the affidavit of respondent No.2A is that at the time of meeting with the representatives of he petitioners when it was explained to them that they have time to remove voluntarily their cabins by the midnight failing which the Corporation shall have right to remove the same forcibly, it was responded by the representatives of the petitioners as under:
["aye vat barobar chhe, aapni vat saachi chhe"] While the Commissioner construed it to be the consent, which inference, in our opinion, was not warranted from this statement, inasmuch as this statement at best conveys what factual situation stood at the time viz. the applicants had no interim order in their favour nor any statement or assurance from the Corporation in their favour when the talks were going on, the time for their voluntary removal of cabins was to expire on that day and thereafter there was no impediment, unless otherwise affected by the orders of the court, for the Corporation to forcibly evict the applicants. That statement conveys nothing more than that and it was too much to read an agreement for forcible removal after the period for voluntary removal was to expire. It is nobody's case that at any point of time the applicants had given up their right to continue with the Letters Patent Appeal. The fact that Sevakram who was present in court and was not with Commissioner during talks on 20.8.97 has denied making of any such statement, does not militate against the credibility of statement as noted above. It merely reflects denial of any agreement having been reached for the removal of cabins forcibly on their failure to remove them voluntarily. Nonetheless when there was agreement about shifting to the site and the Commissioner having pricipally agreed to do whatever in her power to recommend the case for acceptance of the demand for pucca construction as well, the probability of holding such belief bona fide, howsoever grossly incorrect or erroneous it may be, about the outcome of negotiations, though cannot justify the action, certainly could be considered while considering the apology in the totality of circumstances.
48. In this connection, reference may be made to Hoshiar Singh and another v. Gurbachan Singh and others, AIR 1962 SC 1089. It was a case of disobedience of a prohibitory order. On initiation of contempt proceedings defence was taken that the order was not operative as it had not been communicated to them from the court but only was informed by the parties. The court, while holding the respondent guilty of wilful breach of the injunction order, observed "in the matter of prohibitory order it is well settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde".
However, upholding the final order made by the High Court, the Court said,"as to the punishment imposed, the learned Judge took into consideration that the appellants wrongly but honestly might have believed that they were not bound to hold their hands in the absence of an official communication of the order of the High Court. That belief afforded no defence to the charge of contempt of court, but was a consideration relevant to the sentence."
49. There are no allegations in the Special Civil Application itself about any malice on the part of the respondents in removing the applicants. That is to say, no personal interest of the respondents has been shown or alleged to exist in furtherance of which the respondents would ordinarily act knowingly contrary to the orders of the court or undertaking given to the court which they were bound to adhere to. Keeping in view the entirety of circumstances, we are inclined to accept the unconditional apology, though tendered not at the first instance but before the commencement of the hearing and a statement in the court by both respondents No. 1 and 2A before expression of opinion on the merits of issue raised before us with clear abandonment of any plea of justification and respondent No.2A owning full responsibility for whatever breach has been committed, as a genuine expression of remorse. It does not require so much of a courage to ask for an apology as a matter of defence by pleading mercy but certainly it requires a great deal of courage to accept someone's folly and shoulder entire responsibility for the same and leave oneself to the discretion of the authority to deal with the matter as appropriately as it deems fit. The majesty of law lies not only in punishing the contemner but is also reflected in showing mercy to the real repentant. We, therefore, in the circumstances, even on assumption that case for wilful breach of undertaking given to court is made out, would accept the unconditional apology tendered by respondent No.2A and respondent No.1 before commencement of hearing and expression of opinion abandoning all pleas of justification assuming that the alleged acts of demolition of cabins amounts to breach of undertaking by respondents No. 1 and 2A as persons responsible for conduct of business of the Corporation.
50. Respondent No.4 Mr. Bipinbhai Shah has not been shown in any manner to be responsible for the conduct of business of corporation independent of acting under the orders of respondent Nos. 1 and 2A. He therefore cannot be found guilty of contempt of court. Merely acting as subordinate to carry out directions of superiors without anything more cannot render a subordinate responsible as abetting or aiding the breach of undertaking given to the court. Proceedings against him are liable to be dropped.
51. Respondent No. 5 has merely discharged his duty to deploy police force at the site when an operation of such magnitude was being undertaken to keep control over the law and order situation. As we have found, no intimation was ever given to the police authorities about any interim order or undertaking given to the court but he was clearly given to understand that some consent has been given by the advocate of the Corporation for desisting from demolishing until next day of hearing, who was not even a party to litigation cannot be held guilty of abettment of, and aiding such breach of undertaking by officers of the Corporation. Notices against him shall be discharged.
52. Before concluding, we further consider the allegation of the applicants that, apart from committing breach of the alleged undertaking given on 20th August 1997, the respondents have committed breach of the status quo order passed on 21st August 1997. In this connection, we are of the view and there is no dispute about it that so far as demolition and removal of cabins are concerned, all have been removed prior to the making of the order of status quo and the site as open site was in possession of respondent Corporation. The other complaint which has been made about the violation of status quo order is that in spite of status quo order, the notification has been issued for utilising the part of the site as a parking place after paving the road. In this connection, we notice that the statement made before the court on 21.8.97 at the time of hearing was that 'in spite of said statement, demolition has been partly effected (wherein as a fact it has completely taken place) and with this statement respondent authorities were directed to maintain status quo on that day. However, further allegation is that notwithstanding demolition having taken place and the possession having come to the Corporation, they have thereafter laid the place with tar and has earmarked the place for parking.
53. In the totality of circumstances and in the background of the statement made, we are of the opinion that the status quo order did not prohibit the respondents from reasonable use of the site, which was in their possession which was open site, and was either part of the public road or abutting the public road, by regulated use of traffic but related to any further demolition of or construction on the site so that restoration may not become impossible, in case it is to be ordered. It is not the case of applicants that any construction, kuchha or pucca, has been made on site. We are therefore of the opinion that merely because the site in possession of the respondents have been put to use for which it could otherwise have been put to use by laying tar (without changing its shape or covering it with any structure) would not amount to breach of order and contempt.
54. Regarding prayer of the applicants to relief as to compensation, in view of our findings reached above, we are of the opinion that that matter can only be considered, if the applicants are entitled to any such relief as a result of respondents' acts, which were in breach of their duty to act fairly, and if so entitled to what extent can only be determined in substantive proceedings for which the applicants are free to take recourse. As it is not within the domain of these proceedings, we refrain from making any comments thereon and from expressing any opinion on the merits of the contentions between the parties which is subject matter of Letters Patent Appeal.
55. As a result, in the totality of circumstances, we discharge notices in each case. However, the cost of these proceedings shall be borne by respondent No.1 and respondent No. 2A which we quantity at Rs. 5,000 each. The costs shall go to the State Legal Services Authority. The amount of costs awarded shall be deposited with this court or Legal Services Authority within a period of fortnight.