Bombay High Court
Usman Gani vs State Of Maharashtra And Another And ... on 22 June, 1993
Equivalent citations: (1993)95BOMLR563, 1993CRILJ3853
Author: S.N. Variava
Bench: S.N. Variava
ORDER
1. This is a Contempt Notice of Motion for alleged breach of Orders dated 2nd February 1987 and 22nd September 1988. The alleged breach is on two grounds : Firstly, on the ground that there is contempt by interference with the possession of the Court Receiver and, secondly, on the ground that in spite of Orders of this Court, the Contemnors have demolished certain structures.
2. The facts briefly stated are as follows : The petitioner claims that he is the owner of certain sheds and that these sheds had been in existence prior to 1963. As the Bombay Municipal Corporation was threatening demolition of the sheds, the petitioner filed Bombay City Civil Court Suit No. 4194 of 1985 for an injunction that the sheds should not be demolished without due process of law. An Ad Interim Injunction was granted on 12th July 1985. On 22nd July 1985 a statement was made on behalf of the Bombay Municipal Corporation that there will be no demolition without due process of law. On such a statement the suit and the Notice of Motion were allowed to be withdrawn.
3. Without any intimation or notice the structures were demolished on 16th December 1986. The present Writ Petition was filed on 20th December 1986. By an Ad Interim Order dated 23rd December 1986 the Bombay Municipal Corporation was injuncted from preventing reconstruction by the Petitioner. In spite of this Order, on 25th December 1986 the Petitioner was prevented from bringing material for reconstruction. A Police complaint was made and the Petitioner then was permitted to reconstruct. On 2nd January 1987 the reconstructed structures were again demolished by Bombay Municipal Corporation.
4. On 6th January 1987, the Ad Interim Order was vacated as the Petitioner was seeking an adjournment. Thereafter on 2nd February 1987 the following Order was passed :
"Parties by Counsel. They are heard. Petitioner complains of a second demolition of structure put up in pursuance of ad interim order. Petitioner shall reconstruct as per ad interim order in terms of prayer (b). Respondents shall refrain from carrying out any further acts of demolition until the disposal of Petition. In view of this Order, there is no urgency to expedite the hearing. Let the petition come up for hearing in the normal course."
5. Thus, this Order was passed in the presence of the Respondents. The Respondents were now definitely aware that the Petitioner was permitted to reconstruct and they were not to demolish any further.
6. On 11th February 1987, the Respondents brought 9 Bulldozers allegedly for the purposes of removing the traces of the Petitioner's structures. The Petitioner complained to the Police. On 17th February 1987 the Petitioner wrote to the Tahsildar and the Award Officer that he intended to commence re-construction work on that day. On 17th March 1987, the Petitioner received a Notice from the Tahsildar under section 50 of the Maharashtra Land Revenue Code threatening demolition. The Petitioner therefore took out Notice of Motion No. 712 of 1987. He applied for Ad Interim reliefs on 20th March 1987. A stay of demolition was granted on that day. By a letter dated 2nd April 1987 the Tahsildar withdrew the Notice. In view thereof on 24th April 1987 Notice of Motion No. 712 of 1987 was withdrawn. The petitioner thereafter reconstructed one structure with W.C. block. Again on 24th March 1988 the W.C. block and 80% of the structure were demolished. Notice of Motion No. 933 of 1988 for contempt was taken out on 29th March 1988. In view of the repeated conduct of the Respondents. Court Receiver was appointed Receiver of the area on which the structures stood. The Receiver took possession on 4th October 1988 and handed over possession to the Petitioner on 7th October 1988. The Petitioner then as Agent of the Court Receiver, commenced construction work. On 9th January, 1990 notice under section 354 (a) of the Bombay Municipal Corporation Act is issued to stop construction. The Court Receiver by his letter dated 25th January 1991 informed the Respondents and the Kurla Police Station that he is in possession and that the Petitioner is acting as his Agent and reconstructing under the Orders of this Court. In spite of this, on 11th March 1991 the structure is again demolished by the three Respondents who are Contemnors herein.
7. The Court Receiver put up a Report dated 25th March 1991. On 3rd April 1991 Court directs that a notice be issued asking the Respondent to show cause why action in contempt should not be taken against them. On 2nd May 1991 however the Court directs the Court Receiver to take out a Notice of Motion for contempt against the Respondents. Instead of the Court Receiver taking out a Notice of Motion, the Petitioner herein has adopted this Notice of Motion.
8. It is first contended that the alleged act of interfering with the possession of the Court Receiver would be a criminal contempt which could only be heard by a Division Bench of this Court. There could be no dispute with that proposition. However, there is also the alleged contempt of willful disobedience of Orders of this Court. That would be a Civil contempt and to that extent this Court has jurisdiction to entertain and try the same.
9. It is next submitted that the alleged act of demolition has taken place on 11th March 1991. It is submitted that exercise of Contempt jurisdiction is a matter entirely between the Court and the alleged Contemnor. It is submitted that even though the Court may be moved by a Notice of Motion or on a Reference, it is only when the Court decides to take action and initiate proceedings for contempt that it assumes the jurisdiction to punish for contempt. It is submitted that when a Court rejects a Notice of Motion or a Reference and declines to initiate proceedings for contempt, it refuses to assume or exercise the jurisdiction and such a decision cannot be regarded as a decision in the exercise of jurisdiction to punish for contempt. It is submitted that so far as the contempt jurisdiction is concerned, it is a matter entirely between the Court and the alleged Contemnor and that an outside party only comes in by way of drawing attention of the Court to the contempt which has been committed. It is submitted that the outside party does not become party to the proceedings for contempt even though the Notice of Motion may be at his instance. It is submitted that in the present case, till date the Court had not initiated any proceedings for contempt inasmuch as the Court has not applied its mind or exercised its discretion whether or not to exercise its jurisdiction for contempt. It is submitted that mere filing of a Notice of Motion by a person does not mean that the Court has entered upon jurisdiction to punish for contempt.
10. It is submitted that, under section 20 of the Contempt of Courts Act, which reads as follows :
"20. No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
no Court can initiate proceedings for contempt beyond the period of one year from the date on which the act is alleged to have been committed. It is submitted that by virtue of Section 20 of the Contempt of Courts Act now no action can be taken on this Notice of Motion.
11. In support of these submissions, reliance has been placed upon the authorities in the case of Yashodabai w/o. Kanhayyalal P. Saraf v. Narayandas Gokuldas Saraf reported in (1994) 94 BLR 19, in the case of Chief Judicial Magistrate, Wardha v. U. B. Dhande reported in 1984 Mah LJ 878, State of Maharashtra v. J. V. Patil reported in (1976) 78 BLR 116, M/s. Golchha Advertising Agency v. The State of Maharashtra , in the case of Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, C.J. of the Orissa High Court, , in the case of Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society, Nagarvel, Ahmedabad , in the case of N. Venkataramanappa v. D. K. Naikar and in the case of Kilachand Devchand v. Ajodhyaprasad Sukhanand reported in 36 Bom LR 992 : (AIR 1934 Bom 452).
12. To the general proposition as canvassed and as laid down in the numerous authorities cited across the bar, there can be no dispute. However, it is to be noted that all the cases cited across the bar are dealing with contempt not of this Court, but of a subordinate Court. It is under section 11 of the Contempt of Courts Act that the High Court has jurisdiction to inquire into and try for contempt of a Subordinate Court. The propositions of law which are well settled are therefore necessarily in respect of trials for contempt of subordinate Courts. In respect of contempt of this Court, the power to inquire and try is derived by this Court not from the provisions of the Contempt of Courts Act but from Article 215 of the Constitution of India. The Supreme Court in the case of Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, , has held that the power of the Supreme Court and the High Court, being the Courts of Record, as embodied under Articles 129 and 215 respectively cannot be restricted and/or trammelled by any ordinary legislation including the provisions of the Contempt of Courts Act. The Supreme Court has held that the inherent power of the Supreme Court and the High Court is elastic, unfettered and not subjected to any limit. This because, his power is an inherent power and the jurisdiction vested in these Courts is a special jurisdiction not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India. The Supreme Court has held that even though this power cannot be controlled or limited by any Statute or by any provisions of the Code of Criminal Procedure or by any Rules, this power must be used sparingly. The Supreme Court has also held that prior to the enactment of the Contempt of Courts Act, 1971 each Court adopted its own procedure for trial of contempt of itself and that these inherent powers were generally exercised by a summary procedure. The Supreme Court has held that there was nothing wrong in this so long as that procedure that was followed was fair and that the Contemnor was made aware of the charge against him and given a reasonable opportunity of defending himself. This Court has, in an unreported judgment dated 25th March 1992 in Suo Motu Notice No. 84 of 1992 in Suit No. 2428 of 1985, relying upon the abovementioned Supreme Court case, also held that this Court is exercising powers under Article 215 of the Constitution of India in respect of a contempt of this Court and that his Court as a Court of Record has sufficient power to punish the Contemnor for the contempt. Not only I am bound by the abovementioned two judgments, but I am in complete agreement with the same.
13. It must be mentioned that so far as the present matter is concerned, it is in respect of breach of Orders passed by this Court in the exercise of its Original Jurisdiction. This Original Jurisdiction is itself a special jurisdiction. The Bombay High Court, Appellate Side Rules, in Rule 19(a) of Chapter XXXIV, lays down that in case of contempt arising out of proceedings on the Original Side of the High Court, the Contempt Petition would be in the form of a Notice of Motion and the rules applicable to Notice of Motion shall apply mutatis mutandis to all such petitions. It is as a result of this Rule that on the Original Side of the High Court all Contempt Applications are by way of Notices of Motions. Even though they are by way of Notices of Motions, it is ensured that these Notices of Motions are personally served upon the alleged Contemner. It is also a requirement that the Notice of Motion itself must set out the specific charge. It is not sufficient if the charge is set out in the Affidavit. This, because so far as the Original Side is concerned, even though the Notice of Motion may be taken out by a party, the filing of the Notice of Motion is itself, considered to be an initiation of proceedings for contempt. No separate Notice to show cause is ever issued by the Court. The alleged Contemner is given amble opportunity to give his explanation. He files his reply or explanation by way of a reply to the Notice of Motion. He is then heard. After a full hearing the Order is passed on the Notice of Motion itself. On the Original Side of the High Court, there is no practice at all of the Court issuing any further or other notice to the party after hearing them. Thus, the guidelines laid down by the Supreme Court namely that the procedure should be fair and that the Contemnor should be made aware of the charge against him and given a reasonable opportunity to defend himself are all complied with. The power of the High Court being derived from Article 215, there is no question of the provisions of the Contempt of Courts Act, trammelling or curtailing these powers in any manner. Therefore, it is within the power of the High Court to lay down its own procedure irrespective of the provisions of the Contempt of Courts Act. The procedure followed on the Original Side has been well established and known to all. All parties have known from time immemorial that it is the filing of the Notice of Motion which amounts to initiation of proceedings for contempt on the Original Side. All parties file their reply on the Notice of Motion itself. This has been done even in this case. They are heard on the Notice of Motion itself. The Order is passed on the Notice of Motion itself. It is, therefore, the date of the filing of the Notice of Motion which amounts to initiation of the proceedings on the Original Side. Even otherwise in this case this Court has already applied its mind and directed that Notice to show cause be issued. This was on 3rd April, 1991. Subsequently, undoubtedly, realising the practice on the Original Side, this Court on 2nd May, 1991 directed filing of a Notice of Motion. This in any case is initiation of proceedings.
14. Apart from this, as the power is being exercised under Article 215, there is no question of any limit being laid down within which the High Court may commit a person for contempt of itself. There is no question of Section 20 of the Contempt of Courts Act in any manner prescribing either a pre-condition or a time limit within which the High Court may exercise its powers under Article 215 of the Constitution of India. Therefore, even presuming that the filing of the Notice of Motion did not amount to initiation of the proceedings and it is only when the Court really hears the Notice of Motion, that there is initiation of proceedings, still so long as the alleged Contemner is made aware of the charge and is given full opportunity to meet the charge, this Court can commit for contempt at any time. Section 20 can in no trammel or curtail the inherent power of this Court.
15. Mr. Singhavi relied upon the authority of this Court in the case of Kilachand Devchand & Co. v. Ajodhyaprasad Sukhanand, reported in (1934) 36 BLR 992. He submitted that in this case, this Court has held that, even on the Original Side, a mere lodging of a Notice of Motion for contempt does not acquire the character of a process of the Court and that therefore the Notice of Motion requires to be served accordingly. I do not see how this case can further the arguments of Mr. Singhavi. In this case what was being considered was whether mere lodging of the Notice of Motion was sufficient or whether the Notice of Motion had to be personally served on a party. The Court merely held that mere lodging was not sufficient, but that the Notice of Motion had to be personally served. It may be noticed that this was also a case of contempt. The procedure which was followed was a mere filing of the Notice of Motion. The Order which was passed was on the Notice of Motion itself. Therefore, far from helping him, in my view, this case in fact goes against the argument which Mr. Singhavi has made. It is only if there is an initiation of proceedings that the question of service of process arises. Thus the filing of the Notice of Motion was initiation of proceedings. Then it has to be personally served.
16. Under these circumstances, so far as the Original Side of this Court is concerned, I see no substance in the contention that by filing of a Notice of Motion proceedings in contempt have not been initiated. The practice which has been prevailing in this Court from time immemorial cannot be ignored or forgotten.
17. That brings us to the question of whether or not there has been contempt. On this question Mr. Singhavi at the very start tendered an unconditional apology to the Court. He submitted that there has never been an intention to wilfully commit a contempt of the Order of this Court. He submitted that the respondents were not aware of the Order dated 23rd December, 1986 and not being so aware an inadvertent breach of that Order was committed. He submitted that the Notice under section 50 of the Maharashtra Land Revenue Code was sent by the Tahsildar and not by these respondents. He submitted that the demolition on 11th March, 1991 took place under a mistake belief that the Order of this Court merely permitted the petitioner to put up one structure and that the other structures put up by the petitioner were not covered by this Order. He further submitted that the respondents have made amends inasmuch as they have compensated the petitioner by personally paying substantial amounts. Mr. Baldota admits that the respondents have personally paid certain amounts.
18. Under these circumstances, the apology of the respondents is accepted by the Court. There will be no order on the Notice of Motion, save and except that the respondents will also pay to the petitioner cost of the Notice of Motion quantified at Rs. 100/-.
19. The position that has emerged is that in matters of contempt there is a difference in the procedure followed by the Original Side and the procedure followed by the Original Side and the procedure followed by Appellate Side of this Court. In future it would be advisable that the procedure followed by both sides of Courts be similar. I, therefore, direct the Office to obtain appropriate directions from the learned Chief Justice, to the effect that all Contempt Notice of motions filed hereafter should immediately, on the date of the filing itself, be placed before the learned Judge hearing Contempt Notice of Motions for directions and appropriate orders including if necessary notice to the alleged Contemnor to show cause. In my view, it is advisable that such a procedure be followed in respect of Contempt of Notice of Motions filed hereafter.
20. I clarify that the above directions are not in respect of Contempt Notices of Motions already filed.
21. Order accordingly.