Calcutta High Court (Appellete Side)
Shrimati Hutheesing Tagore Charitable ... vs Amit Kumar Das on 12 November, 2014
Author: Asim Kumar Mondal
Bench: Subhro Kamal Mukherjee, Asim Kumar Mondal
IN THE HIGH COURT AT CALCUTTA
Special Civil Jurisdiction
Present:
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Asim Kumar Mondal
C.P.A.N. 2113 of 2013
in
F.A. No. 229 of 2010
Shrimati Hutheesing Tagore Charitable Trust
...petitioner
Versus
Amit Kumar Das
...Alleged Contemnor.
For the petitioners/respondents: Mr. Aniruddha Chatterjee,
Mr. Rahul Karmakar.
For the alleged contemnor: Mr. Pratik Prokash Banerjee,
Mr. Rabindra Kumar Jaiswal,
Mr. Gourab Banerjee.
Judgment on: November 12, 2014.
Asim Kumar Mondal, J.:
This is an application under Article 215 of the Constitution of India read with the Contempt of Court's Act, 1971.
The petitioner instituted a suit for declaration of title, recovery of possession and for damages before the learned Civil Judge at Alipore. The contemnor contested the said suit before the learned trial court. Learned trial judge decreed the suit directing the defendant No. 1/appellant/contemnor and proforma respondents to deliver vacant and khas possession of the suit premises in favour of the petitioner.
The defendant no. 1/appellant/contemnor preferred an appeal against the said judgement and decree before this Court, which is still pending.
The decree-holder/petitioner had put the said judgement and decree dated February 25, 2009 into execution. It was registered as Title Execution Case No. 4 of 2009 and pending before learned Third Civil Judge at Alipore. Writ of possession was issued accordingly in course of execution of the writ of possession. The defendant No. 2 and 3/proforma respondents vacated the second and first floor respectively by delivery of possession. But, contemnor and his men, agent and persons forcibly and illegally reoccupied the said floors of the suit premises.
The contemnor filed a stay application in connection with the said appeal being C.A.N. No. 7021 of 2009. A Division Bench of this Court was pleased to stay the proceeding of the said execution case No. 4 of 2009 on a condition that the defendant No. 1/appellant would pay an amount of Rs. 35,000/- (Rupees thirty five thousand) only per month towards the occupational charges for occupying the suit premises and shall deposit an amount of Rs. 10,00,000/- (Rupees ten lakh) only with the learned Registrar. It was, further, directed that the appellant/contemnor maintains status quo as regards possession, nature and character in relation to the property in suit during the pendency of the appeal. The appellant/contemnor were, also, restrained from creating any third party interest in relation to the property in suit including grant of any lease in favour of any third party during the pendency of the appeal.
It is alleged that the contemnor deliberately and contumaciously started flouting the said order of this Court dated March 3, 2010.
Being aggrieved by such conduct, the contemnor/petitioner lodged a complaint before the Officer-in-Charge, Bhawanipore Police Station on January 16, 2013.
The contemnor started letting out the suit premises for holding art exhibition, office usage, parking and for sundry purposes.
Under such circumstances the petitioner filed an application under Section 144(2) of the Code of Criminal Procedure before the Executive Magistrate at Alipore, which was registered as M.P. Case No. 688 of 2013 with a prayer for direction upon the local police station for taking necessary steps to protect the solemn order of this Court. The Executive Magistrate directed the local police to hold a detailed enquiry over the present suit premises as regards to the possession.
One Sub-Inspector of Bhawanipore Police enquired into the matter and submitted a report on June 6th, 2013. It was reported that during enquiry it was found by the said officer that one Miss Sofia Khatoon and Ms. Rommee Bhattacharya were jointly holding an exhibition on the ground floor of the suit premises under the name and style of "Our World Our Initiative". On enquiry it was informed that a sum of Rs. 6,000/- (Rupees six thousand) only vide Cheque No. 052020 dated March 20, 2013, was paid to M/s. Baitanik towards the rent for holding the said exhibition from May 13, 2013 to May 19, 2013. The contemnor had issued a money receipt as donation instead of the rent so accepted for letting out the suit premises.
It is alleged by the petitioner that the contemnor has intentionally and obstinately violated the solemn order of this Court. The suit property was let out in lieu of rent collected in the garb of donation from various occupants from time to time for using the suit premises for office usage, parking area and holding exhibition etc. Hence this instant petition being C.P.A.N. No.2113 of 2013 for wilful and deliberate violation of the solemn order dated March 3, 2010, passed by the Division Bench of this High court in C.A.N. No. 7021 of 2009 in connection with F.A. No. 229 of 2010.
Mr. Aniruddha Chatterjee learned advocate appeared on behalf of the petitioner and draws our attention to Annexure - C of the application at Page No. 34, which is the photocopy of certified copy of an application under Section 144(2) of the Code of Criminal procedure filed by the petitioner against the contemnor before Executive Magistrate, Alipore praying for taking necessary steps to protect the solemn order of this Court. Mr. Chatterjee, further, draws our attention to annexure -D at Page 46, which is a photocopy of certified copy of a report supplied by Prasanta Majumdar, Sub Inspector of Bhawanipore Police Station before the Executive Magistrate. Mr. Majumdar held a detailed enquiry as per order of the Executive Magistrate passed in the proceeding under section 144 (2) of the Criminal Procedure Code. The report was taken on record of the said Court. Mr. Chatterjee, further, submits that it will be crystal clear from the said report, which was submitted by Police after detailed enquiry at spot, that the contemnor received an amount of Rs. 6,000/- (Rupees six thousand) only by cheque being No. 052020 dated March 20, 2013 from Ms. Sofia Khatoon and Ms. Rommee Bhattachaya for one exhibition (Our World Our Initiative) against a money receipt being No. 808 as donation. Mr. Aniruddha Chatterjee learned advocate submits that the said exhibition continued for 2
- 3 days. So, it is clear that the contemnor received the money for letting out the suit premises for 2 - 3 days against monetary consideration, which is nothing but rent in the garb of donation.
Mr. Pratik Prokash Banerjee, learned advocate appears on behalf of the contemnor to oppose the allegation against the contemnor. It is submitted that the contemnor never disobeyed/violated deliberately the solemn order on March 3, 2010 passed by this Court. Mr. Banerjee submits that in the petition no particular contumacious conduct has been alleged for which the rule may be issued. Mr. Banerjee refers to the provision of appendix 3 to the Appellate Side Rules including the Rules 6 and 7 and submits that the petition is not maintainable.
It is, also, submitted with reference to the Memorandum of Association of Baitanik that the very purpose of the said institution is to promote and spread the culture of Tagore among the public through songs, dramas, dances and literary discussions. Mr. Banerjee, further, submits that it is also the object of the said society to raise funds by way of subscriptions and donation. So, no question arises as to licensing or letting out of the premises or any part thereof. Even if such event is being held, there was no change of the character of the property. Mr. Banerjee submits that by the order dated March 3rd, 2010 the court never intended to stop Baitanik from carrying on its day to day affairs and execution of the aforesaid objects, which always happened and which did not amount to creation of any third party interest. So, while the society continued to remain in possession during the pendency of the appeal, no question of change of character of the suit premises arose even if the society allows to hold some events in a evening or a day. Mr. Banerjee claims that there are many well-wishers of the society, who give donation for the welfare of the society. Ms. Rommee Bhattacharya is one of them. Finally, Mr. Banerjee submits that in a case where two interpretations are possible of an order and the respondent has acted in accordance with one of the interpretations, which is a reasonable interpretation in the facts and circumstances of the case, there is no contempt of court.
In reply, Mr. Chatterjee submits that society was framed by the members for teaching songs and dances based on Tagore, on a small space at the southern side of the Ground Floor, which is an open verandah on temporary basis. The first floor has been let out at the instance of contemnor for carrying out business in the name and style "Singh and Sen Engineering Pvt. Ltd." to an unknown person. Mr. Chatterjee submits that it is an admitted fact that the contemnor has let out ground floor and open space for exhibitions and other commercial activities. In fact, the contemnor is trying to justify his act by taking money in disguise of the bye-laws of the society. Bye laws of the society cannot in any manner whatsoever intervene with the solemn order of the High Court.
The order in question passed by this Court on March 3rd, 2010 in C.A.N. No. 7021 of 2009 in connection with F.A. No. 229 of 2010 is not disputed. Some facts are not disputed. Ms. Sofia Khatoon and Roommee Bhattacharya organised an art exhibition on the ground floor of the suit premises in the name and style of "Our World Our Initiative". On being asked by the enquiring police officer it was informed that they had paid a sum of Rs. 6,000/- (Rupees six thousand) only by cheque and a receipt was issued to them as donation. The said exhibition continued from May 13, 2013 to May 19, 2013. The persons present there also informed to the police officer that on demand of donation they are allowed to use the space of the suit premises for holding their dance, music and other functions. The admitted fact is that persons are allowed to use the suit premises in lieu of donation. The enquiring officer, also, came to learn in course of enquiry that the society, since the orders of High Court was collecting rent in garb of donation from the suit premises by letting out the same as office and/or space for holding exhibition of music and songs etc. This Court passed order dated March 3, 2010 staying the proceeding of execution case No. 4 of 2009 on a condition that the defendant No. 1/appellant shall pay an amount of Rs. 35,000/- (Rupees thirty five thousand) only towards occupational charges for occupying the suit premises and shall deposit an amount of Rs. 10,00,000/- (Rupees ten lakh) only with the learned Registrar. It was, further, directed that the appellant/contemnor maintains status quo as regards possession, nature and character in relation to the property in suit during the pendency of the appeal. The appellant/contemnor was, also, restrained from creating any third party interest in relation to the property in suit including granting of any licence in favour of any third party during the pendency of the appeal. There is sufficient materials on record to show that the contemnors has let out the suit premises to third parties and sometimes has given licence for a short term to third party for exhibition, dance and other cultural functions on demand of donation. All donations in relation to allowing them to use the suit premises for such functions is no doubt an income of the society, which is generated by creating third party interest. Even if for a short term use, the donations, which are being paid by the so-called well-wishers of the society appears to be non-voluntary. It is in view of such facilities to use the suit premises, rent or licence fee is collected in the garb of donation. The police report was obtained in a court proceeding. So, there is no scope to disbelieve the entire police report. On the contrary, the facts as stated in the report is an admitted position. Admittedly all the functions which are being held at the premises in lieu of donation are not organised by the society itself. So, it can not be said that the parties, who are not directly involved with the society, volunteer in paying donation.
We are of the view that allowing any organisation or any third party to use a portion or entire suit premises for holding cultural functions etc., on payment of purported donation is nothing but permitting third parties generate from interest using the premises on condition.
Therefore, we have no hesitation to hold that the contemnor has wilfully and deliberately violated the order of this Court on March 3, 2010.
The act done by the contemnor appears wilful disobedience of an order of this Court and, thus, is not only contempt, but, also, an illegal and invalid act in view of the facts and circumstances of the case, particularly, when the defendant/appellant suffered the decree for recovery of possession and the Division Bench of this Court did not consider to grant leave to the defendant/appellant to transfer, alienate, encumber a portion of the property in suit to a third party.
C.A.N. application No. 8838 of 2010 filed by the contemnor praying for permission to let out a portion of the suit property, which has been under their possession to the outsider for raising funds, was rejected.
In the facts and circumstances of the case, the decree has been put into execution by the decree-holder and the said proceeding is pending before the court below, being stayed by the order of this Court on March 3, 2010.
Justice will be subserved on vacating the said order of stay of execution proceeding without initiating a proceeding for contempt as usual.
Thus, the instant C.P.A.N. application being No. 2113 of 2013 is allowed. The order of stay granted by the Division bench of this court in C.A.N. No. 7021 of 2009 in connection with F.A.T. No. 321 of 2009 is hereby vacated.
The decree shall be executable at once subject to the result of the pending appeal before this Court We make no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Asim Kumar Mondal, J.) Subhro Kamal Mukherjee, J.
I agree.
(Subhro Kamal Mukherjee, J.)