Bombay High Court
Earth Designers And Developers Private ... vs M.K. Patil, The Administrator General ... on 17 April, 2003
Equivalent citations: 2003(6)BOMCR87, 2003CRILJ3785
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This petition was placed for hearing at the stage of show cause notice to the Respondent, calling upon the Respondent to show cause as to why action under the provisions of Contempt of Courts Act, 1971 should not be initiated against him. The backdrop in which the present petition has been filed is that, the Respondent is the Administrator General and official Trustee (sole trustee) of Shree Venkatesh Balaji Temple property situate at bangana road, Walkeshwar road, Mumbai. The Petitioner company was intending to purchase the Trustee property for which trustee and the Petitioner executed Memorandum of Understanding. However, as the property belonged to the public trust, approval from the High Court under the provisions of Official Trustees Act, 1913 was required to be obtained. For that purpose, Trust Petition No. 5 of 1995 was instituted in this court. Besides, the said trust petition, one writ petition was filed by the third party questioning the proposed sale in favour of the Petitioners on various grounds. It is not relevant to advert to those proceedings in detail. Suffice it to mention that the said trust petition and the writ petition eventually came to be disposed of by order dated 8.8.1997 by the Division Bench of this court. The order records that the petition was disposed of in terms of the settlement arrived at between the parties. It is not in dispute that the Respondent, however, lateron moved a formal praecipe for speaking to minutes stating that the recording of fact by this court in order dated 8.8.1997 that the parties have entered into terms of settlement was inaccurate. Pursuant to the said praecipe, it is not in dispute that, the court recalled that part of the order-meaning thereby the trust petition as well as writ petition was disposed of by the court as per the Minutes of order which in essence is order passed by the court and not as per the settlement terms. According to the Petitioner, following are the relevant clauses under which the Respondent was under an obligation to take necessary steps so as to conclude the transaction in question, which read thus:
"(i) there will not be a sale of Temple, Chawl or Temple land. The Temple land and the properties shall continue to vest in the Respondent. The Petitioner shall be entitled to avail the privileges of F.S.I. available in respect of the property including in the form of T.D.R., in accordance with Development Control Regulation 67;
(ii) The Respondent shall make available to the Petitioner F.S.I. potential for consideration of Rs. 1,36,00,000/- (Rupees One Crore Thirty Six Lakhs only) in the form of T.D.R., Certificates;
(iii) The Petitioner shall pay sum of Rs. 35,00,000/- (Rupees Thirty Five Lakhs only) (in addition to Rs. 1,36,00,000/-) for repairing and maintaining the Temple. The responsibility of repairing and maintaining was with the Respondent;
(iv) The balance consideration of Rs. 1,26,00,000/- (Rupees one Crore Twenty Six Lakhs only) (Rs. 10,00,000/- Rupees Ten Lakhs only) already having been paid shall be paid against the transfer and endorsement of T.D.R., Certificates in favour of the Petitioner by the Respondent;
(v) The Respondent shall grant a Power of Attorney in favour of the Petitioner's Director for the purpose of negotiating and obtaining consent from the Tenants of the existing chawl and structure for availing developable F.S.I. in the form of T.D.R. All costs, charges and expenses for obtaining T.D.R., including in respect of the tenanted chawl shall be borne by the Petitioner. All the co-operations would be rendered by the Respondent for obtaining necessary sanctions from Bombay Municipal Corporation and other Authorities;"
2. Whereas, it is alleged that, the Respondent instead of taking steps in furtherance of the said Minutes of the order took stand by letter dated 19.9.1997, that only 2294 sq.ft. of the F.S.I. was sold to the Petitioner; which, according to the Petitioners, was directly contrary to the order dated 8.8.1997. On receipt of the said letter immediately the Petitioners responded by Advocate's letter dated 20.9.1997 asserting that the stand taken by the Respondent was improper. According to the Petitioners instead of taking corrective steps, the Respondent by another letter dated 22.9.1997 threatened-wrongfully, illegally, in breach, violation and disobedience of the order of this court, to cancel the Power of attorney which was already issued in favour of the Petitioners. Once again the Petitioners by Advocate's letter dated 27.9.1997 brought to the notice of the Respondent that the stand taken by him was improper and to take corrective measures. According to the Petitioners, the Respondent did not make any improvement but continued with his wrongful campaign and by letter dated 4.10.1997 purported to suggest that the transaction be cancelled which was in complete disobedience of the directions of this court referred to above. It is stated that the Petitioners once again by Advocate's letter dated 10.10.1997 recorded correct fact and cautioned the Respondent that the action on the part of the Respondent was contumacious which could invite contempt proceedings against him. It is further stated in the petition that, the Respondent continued to take the same wrongful position and adopted obstructionist attitude, thereby depriving the Petitioners to avail of the order passed by this court dated 8.8.1998. Reference has been made to several correspondence exchanged between the parties in respect of the stand taken by both the sides. It is also stated in the petition that the Respondent thereafter, proceeded to file Special Leave Petition before the Supreme Court reiterated his wrongful contention which was inconsistent and contrary to the order passed by this court dated 8.8.1997. Even the Supreme Court dismissed the said Special Leave Petition on 27.7.1998 thereby putting the entire controversy at rest. It is stated that, inspite of that, the Respondent continued with his wrongful act against the Petitioners for ulterior reasons and maintained his obstructionist attitude against the Petitioners instead of complying with the directions under the order passed by this court on 8.8.1997. Once again the Petitioners by Advocate's letter dated 1.8.1998 called upon the Respondent to take corrective measures. From the averments in the petition, it appears that, this is the last communication which was sent by the Petitioners to the Respondent. Thereafter, it is only sometime in February 2002 the matter appears to have got activated on receipt of some communication by the Petitioners from MHADA dated 1.2.2002. On receipt of that letter the Petitioners again pursued the matter and eventually have filed the present contempt petition in this court on 29.4.2002. It is mentioned in Para 10 of the Petition that the Respondent is in continuous contempt of the order passed by this court dated 8.8.1997, interalia, by alleging that the power of attorney already executed in favour of the Petitioner is revoked and/or is cancelled; by obstructing/obtaining of the T.D.R. potential of the said property and in place of rendering cooperation to the Petitioner obstructing the Petitioner in obtaining the said T.D.R., potential of the said property by adverse means including and interalia by writing communication to the concerned authorities as also Tenants of the said chawl. In the backdrop, petition has been filed under the provisions of Contempt of Courts Act, 1971, as can be discerned form the title of the petition for the following reliefs.
"The Petitioner in the circumstances prays:
"(a) that it be declared that the Respondent is guilty of Contempt of the order dated 8th August, 1997, being Exhibit "E" hereto;
(b) that the Respondent be suitably punished and fined for contempt and intentional and deliberate breach of the order dated 8th August 1997 for such term and wit such fine as this Hon'ble Court may deem fit and proper;
(c) that the Respondent be ordered and directed to forthwith:-
(i) address communication to the MHADA Authorities and Bombay Municipal Corporation withdrawing objections to the Petitioners' application and proposal in respect of the said property described in Exhibit "A" hereto including for the issue and grant of the entire F.S.I. potential of the same in the form of T.D.R., F.S.I.
(ii) addressing communication to the MHADA and B.M.C. Authorities to accept the said power of attorney (Exhibit "F" hereto) for the purpose of issuance of T.D.R., potential in respect of the property and for repairs of the said chawl;
(iii) to transfer the entire F.S.I. potential including in the form of T.D.R., Certificates and benefits in respect of the said property in the name of the Petitioners from the name of the said Trust/Respondent and for the said purpose to sign and execute applications, forms as are necessary for effectivley transferring the same;
(iv) not to obstruct the Petitioners in obtaining the said F.S.I., potential including in the form of T.D.R., Certificates in respect of the said property and in repairing the said existing chawl in accordance with the sanctions of the Bombay Municipal Corporation for repairs and the approval of the Heritage Committee;
(d) Ad interim reliefs in terms of prayer (c) above;"
(e) for costs of this Petition may be provided for; and
(f) for such other and further reliefs as in the nature and circumstances of the case this Hon'ble Court may deem fit and proper;"
3. In response to this petition a detailed reply affidavit has been field by the Respondent who is the Administrator Geneal and Official Trustee in respect of the said trust. The said affidavit narrates all the events in chronological order. The affidavit clearly indicates that in view of certain developments after the order of this court dated 8.8.1997, the power of attorney came to be revoked and cancelled on 7.4.1998 and communication in that behalf was duly sent to the Petitioners. As a matter of fact, the Petitioners have also relied upon that communication which is marked Exh. "6". Besides cancellation of the power of attorney, the Respondent caused to give public notice which has been annexed at Exh.7. The background in which the Respondent was constrained to take that step has been stated in the reply affidavit. According to the Respondent, the Petitioners were exploiting the situation and were taking wrong stand and, in fact, acting beyond the authority given to them. It is relevant to note that although Petitioners have made reference to the action of the Respondent of revoking and/or cancelling the power of attorney in Para 8 o the petition but have not mentioned the date of that action- but proceed to contend that, it was not open to the Respondent to revoke and/or cancel the power of attorney which was already granted without the permission and approval of this Court.
4. From the pleadings of the rival parties, the position that merges in that, immediately after the order was passed by this Hon'ble Court on 8.8.1997, the Respondent has been contesting the position that the Petitioners were entitled to avail of only 2294sq.ft. of the F.S.I. and nothing more. Besides, the Respondent has been threatening of taking precipitative action and in fact that was translated into revocation of power of attorney on 7.4.1998. Besides formally revoking and cancelling the power of attorney, the Respondent caused to issue public notice in that behalf. This is also stated to be an act constituting Contempt of Court. In this background, the foremost question that needs to be examined is: whether the present petition filed on 29.4.2002 is barred by Section 20 of the Contempt of Courts Act, for the acts alleged to have been committed by the Respondent which constitute contempt have taken place before the period of one year of the institution of the petition? Section 20 of the Act reads thus:
"20. Limitation for actions for contempt- No court, shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of period of one year from the date on which the contempt is alleged to have been committed".
4. Mr. Subramanium for the Petitioners contends that, there can be no limitation in a case of contempt action under Article 215 of the Constitution of India. Although Mr. Subramanium argues that this petition is under Article 215 of the Constitution of India, but on close perusal of the petition, it appears that it has been filed only under the Contempt of Courts Act. If that is so, the rigours of Section 20 would clearly apply to the case at hand. Assuming that this petition was one under Article 215 of the Constitution of India, even ten the argument of Mr. Subramanium that no limitation would apply to the petition for contempt action under Article 215 of the Constitution of India deserves to be rejected. No doubt, Mr. Subamanium has relied on an unreported decision of this court in Contempt Petition No. 1 of 1998 decided on 8.10.2001 wherein this contention was canvassed, and has been accepted in Para 13 of the said decision. However, that question is no more resintegra and has been answered in the recent decision of the Supreme Court in Pallav Sheth v. Custodian and Ors. The question as to whether the limitation provided under Section 20 would apply to the petition under Article 215, it has been held by the Apex Court that same restrictions would apply even to such proceeding. In the circumstances, it is not possible to accept the argument tat, no limitation would apply to the petition under Article 215 of the Constitution of India, in the light of the recent decision of the Apex Court referred to above.
5. To over come this position, Mr. Subramanium contends that the case on hand is one of continuous contempt committed by the Respondent. Even this submission is without any merit. Going by the facts as narrated in the petition, it would appear that the grievance made is that the Respondent was threatening to take precipitative steps all along immediately after the order came to be passed by this court on 8.8.1997. Assuming that the Respondent was ill-advised to take that position. (It is made clear that, I may not be understood to have opined on the correctness or otherwise of the stand taken by the Respondent.) From the facts on record, it would appear that the Respondent translated his alleged threats into action by cancellation and revocation of the power of attorney on 7.4.1998 and that fact has not been disputed. Besides the Respondent issued public notice indicating the fact of revocation and cancellation of the power of attorney. That has happened some time in April, 1998. Even then the Petitioner company did not think it necessary to take out appropriate proceeding for setting at naught the said action of the Respondent. No doubt, the Petitioners would contend that, it was not open to the Respondent to revoke and/or cancel the power of attorney, but the fact remains that the Respondent has done that. The Petitioners were obliged to assail that action before the appropriate forum and, it is not enough to merely keep on asserting that the power of attorney was still operating and binding on the Respondent inspite of the public declaration issued by the Respondent. If the petitioners argument that the Respondent could not have revoked or cancelled the Power of Attorney was to be accepted, it would entail in a piquant situation that this Court would be required to examine the correctness or otherwise of that action of the Respondent-which cannot be the scope of contempt jurisdiction. Perhaps, remedy for such a declaration has become time barred. Moreover, as mentioned earlier in Paragraph 2, the Petitioner did not take any steps from August, 1998 till February, 2002. Atleast no record has been placed before me nor any averment is made in the petition to that effect. On the other hand, on close reading of the petition as presented, the position which emerges is that, after August, 1998, no steps have been taken till Feb. 2002. In that sense, the Petitioners by their conduct abandoned the action for such a long time, for which no plausible or tangible reason is forth coming. This also can be the basis for refusing to exercise jurisdiction.
6. Be that as it may, the question is whether this is a case of continuous contempt committed by the Respondent. As mentioned earlier, even according to the Petitioners, the alleged contempt has been committed in April, 1998 by revocation and cancellation of power of attorney by the Respondent. Once the alleged act has been committed which constitutes contempt, limitation for institution of petition would commence, be it under the provisions of Contempt of Courts Act or for that matter even the provisions of Article 215 of the Constitution of India. The subsequent events can be of no consequence and cannot arrest the running of limitation. This principle has been stated by the Division Bench of this Court in in Golcha Advertising Agency v. The State of Maharashtra (See Para 7). A priori, the limitation for contempt action started running against the Respondent in April, 1998, the same cannot be arrested or renewed because of the fact that the Respondent has subsequently done certain acts. According, the present petition as filed on 29.4.2002 is clearly barred by limitation.
7. The next question that arises for consideration is: whether the court on its own can dismiss the petition on the ground of being barred by limitation, even if that plea has not been set up as defence by the Respondent? This issue arises because the Respondent has not specifically taken that plea in the reply affidavit. But undeniably against an interlocutory order in this petition, the Respondent had carried the matter in appeal before the Division Bench of this court bearing Appeal No. 603 of 2002. In that appeal however, plea regarding limitation was raised as can be discerned from the order disposing of that appeal. In that sense, the Respondent did raise the plea of limitation, albeit in the above referred appeal filed before the Division Bench. To my mind, even if no such plea was raised by the Respondent, it would be the bounden duty of the court to examine the question of limitation before proceeding to take cognizance, much less initiate any action. That obligation clearly flows from the mandate of Section 20 of the Act. Moreover, even if the provisions of Limitation Act, 1963 were inapplicable to the contempt proceeding, but the principle underlying Section 3 of the Limitation Act can be telescoped in the provisions of Section 20 of the Contempt of Courts Act-so as to obligate the court to decide the issue of limitation even if the same has not been specifically set up by the Respondent, having regard to the settled position that fundamentally contempt is a matter between the court and the contemnor.
8. In the circumstances, I have no hesitation in dismissing this petition on the ground that the same is barred by limitation postulated under Section 20 of the Act.
9. It is made clear that I may not be understood to have expressed any opinion with regard to the merit of the rival contentions, including of precluding any other remedy open to the Petitioners, if permissible in law.
Order accordingly.