Calcutta High Court
Cold Gold Syntax Pvt. Ltd vs Sri Gautam Mohan Chakraborty & Ors on 23 February, 2010
Author: Mohit S. Shah
Bench: Mohit S. Shah, Pinaki Chandra Ghose
APO No. 1 of 2010
G.A.268 of 2010
APOT 527 of 2010
C.C.113 of 2009
W.P.1799 of 2008
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
COLD GOLD SYNTAX PVT. LTD. Appellant
Versus
SRI GAUTAM MOHAN CHAKRABORTY & Ors Respondents
For Appellant : Mr. Ajoy Krishna Chatterjee, Sr.Advocate with Mr. A.Mukherjee and Mr. AmitChatterjee,Advocates For Respondents Mr. Balai Chandra Roy, Advocate General with Mr. A.K.Chatterjee, Advocate For Allahabad Bank : Mr. Jaharlal Dutta with Mr. Deepak Jain, Advocates BEFORE:
The Hon'ble CHIEF JUSTICE MOHIT S. SHAH AND The Hon'ble JUSTICE PINAKI CHANDRA GHOSE Date : 23rd February, 2010.
THE COURT : Instead of hearing the stay application, we have taken up the appeal itself for hearing by treating it on the day's list.2
APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 This appeal is directed against the judgment dated 30th November, 2009 of the learned single Judge declining to issue Rule on the contempt petition and dismissing the contempt petition with costs quantified at 1000 GMs.
The contempt petition was filed for alleged violation of the order of the learned single Judge rendered on 2nd February, 2009 which was in the following terms :-
"The writ petition is being resisted by Allahabad Bank, which shares a common boundary wall on the southern limits of the concerned passage to the western side. Some of the added respondents are represented and do not really oppose the prayer made by the writ petitioners. The position will appear from the lay out plan appearing at page 15 (Annexure B) of the petition.
The writ petitioners claim to be the lessees or otherwise entitled to be in possession of premises No.4, 3 APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 N.S.Road, Calcutta - 700001 under the Mahtabs, who are the added respondents. The writ petitioners say that the southern wall towards the eastern end of the property, dividing Premises No.4 on the north and Premises Nos. 2 and 8 on the south, has been breached or broken and complain of police inaction following their requests to render assistance to repair the wall. The writ petitioners say that to the south of the broken area of the boundary wall there are hawkers or others who have been resisting the repair work. The writ petitioners say that taking advantage of the broken boundary wall, persons with absolutely no right in respect of Premises No.4, N.S.Road are seeking to encroach into the passage.
Allahabad Bank says that there are several proceedings pending relating to the passage, which runs between N.S. Road on the west and India Exchange Place on the east. Allahabad Bank insists that such passage is a common passage and has always been used by Allahabad Bank 4 APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 for parking the cars of their employees and/or customers. Such position is disputed by the writ petitioners.
Allahabad Bank says that the present attempt by the writ petitioners is to negate the effect of orders that have been obtained by Allahabad Bank in competent proceedings. It is made clear that the order passed herein will not have the effect of detracting from any order or any benefit conferred by any order on Allahabad Bank in any proceedings.
Since it is nobody's case that the writ petitioners are attempting to do anything untoward, save the charges levelled by Allahabad Bank, it will be open to the writ petitioners to seek police assistance for the purpose of repairing the boundary wall between the passage at premises No.4, N.S.Road and the lane to the north of Premises No.8, Lyons Range.
The Officer-in-Charge, Hare Street Police Station will render all assistance to ensure that there is no breach of peace or anything untoward at the time of repairing the wall. 5
APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 It is, however, made clear that the respective rights of the various parties have not been gone into and nothing in this order should be deemed to have conferred any exclusive benefit whether as to the passage or as to the boundary wall in favour of the writ petitioners." (emphasis supplied) In the contempt petition, the appellants alleged that the respondent-Authorities, that is, the Commissioner of Police, the Deputy Commissioner of Police and Officer-in-Charge of Hare Street Police Station, Calcutta, did not render assistance to the appellant- writ psetitioners and thereby committed contempt of the Court.
In the affidavit-in-opposition filed by the Officer-in-Charge of the Police Station, it was, inter alia, stated as under :
...... .......... .......
"(xxi) Subsequently, on 22.04.09 one Pummy Gupta on behalf of Cold Gold Syntex Pvt.Ltd. approached the Police Station 6 APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 seeking police assistance for repairing the boundary wall at the said passage mentioning the orders passed by Hon'ble Justice Sanjib Banerjee in respect of repairing of boundary wall. As he sought assistance the undersigned along with officers and men of this Police Station went to the said passage along with Pummy Gupta after entering the information in the General Diary of the Police Station vide G.D. Entry No.2493 dated 22.04.09 after obtaining the signature of Pummy Gupta on the said entry of the said General Diary. The passage was meticulously inspected along with Pummy Gupta in presence of witnesses. Pummy Gupta was categorically asked to show the boundary wall, which he needed to repair, but he failed to show any boundary wall situated on the passage, which is in broken condition. The assistance could not be rendered, as there was no existence of any kind of boundary wall on the passage whatsoever.7
APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 (xxii) It is evident from the enquiry report that there was no existence of any kind of boundary wall at any point of time for which repairing was necessary. Hence, the question of repairing work of a boundary wall, by no stretch of imagination, could be performed. As such the entire premise of the Contempt Application is not only incorrect but the same is also inconsequent of reasoning." (emphasis supplied) In view of the aforesaid stand of the Officer-in-Charge, the learned single Judge took a very serious view of the matter and, particularly, the fact that the appellant had arraigned not only the Officer-in-Charge of the Police Station but also the Commissioner of Police and Deputy Commissioner of Police as contemnor- respondents. By the impugned order, the contempt petition came to be dismissed.
The learned counsel for the appellants has submitted that once the order of the learned single Judge passed on 2nd February 2009 8 APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 became final and no appeal was filed against it, it was not open to the Officer-in-Charge of the Police Station to go behind the order of the learned single Judge. There is a boundary wall which requires to be repaired and the respondent-police authorities ought to have rendered assistance to the appellants for repairing or re-constructing the boundary wall.
On the other hand, learned Advocate General has submitted that the appeal is not maintainable as the learned single Judge, whose order is alleged to have been violated, has himself taken a view that no case for contempt was made out. Learned counsel for the Allahabad Bank, to whom notice was ordered to be given, has also submitted that the Allahabad Bank has filed proceedings against the appellants and the appellants had filed proceedings against the Allahabad Bank in respect of the disputes regarding right to car parking space and construction of such boundary wall will come in 9 APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 the way of the bank enjoying its rights which are the subject matter of adjudication in the suits between the parties.
Having heard the learned counsel for the parties, without expressing any opinion on the question of maintainability of the appeal, we are of the view that the question whether the appellants have any right to construct/re-construct any boundary wall is a question which ought to be decided in appropriate proceedings before appropriate forum and that this Court will not decide these disputed questions in contempt proceedings. On the said ground alone, we dispose of this appeal with liberty to the appellants to institute fresh proceedings or to move the Court seized of other proceedings by or against the appellants for the purpose of adjudication of the rights being asserted by the appellants for construction/re-construction of the boundary wall. We express no opinion on the merits of the controversy nor on the question whether there was/is any existing boundary wall which requires repairs.
Subject to the above observations, the appeal is dismissed. 10
APO 1 of 2010 G.A.268 of 2010 APOT 527 of 2010 C.C.113 of 2009 W.P. 1799 of 2008 Urgent photostat copy of this order be made available to the parties upon compliance of usual formalities.
( MOHIT S. SHAH, C.J.) ( PINAKI CHANDRA GHOSE, J.) Rsg.
Asst.Registrar (CR)