Andhra HC (Pre-Telangana)
Municipal Corporation Of Hyderabad And ... vs Mirza Yaseen Ali Baig And Ors. on 26 February, 1996
Equivalent citations: 1996(2)ALT220, 1996CRILJ3024
Author: M.H.S Ansari
Bench: M.H.S Ansari
ORDER
1. Mirza Yaseen Ali Baig - First respondent filed writ Petition No. 5500 of 1993 impleading the State of Andhra Pradesh and the Municipal Corporation of Hyderabad and sought a declaration that a piece of land bearing H.No. 10-3-14/B/13 at Muradnagar, Hyderabad, was not covered by layout No. 16/layout No. 70, dated 13-10-1978. He claimed to be the owner and in possession of the house bearing Municipal No. 10-3-14/B/13 and that he had purchased the house under an agreement for sale, dated 6-7-1969 from its owner for a consideration. Municipal Corporation officials, he alleged, came to his house on 20-4-1993 and directed him to dismantle the house as it was a part of the open space ear-marked for the sanctioned layout. The Municipal Corporation, however, brought on the record information that the land over which the first respondent (petitioner in the writ petition) was claiming ownership was/is known as 'Safdaria Park' and it was so shown in the layout of premises No. 10-3-14 at Humayunnagar. It was, according to the Municipal Corporation, not identified by door No. 10-3-14/B/13, Mehdipatnam. According to the Municipal Corporation, the first respondent had suddenly encroached upon the park area on 9-5-1993 by constructing a room and walls around the railing put up by the Corporation on the existing basement. Action accordingly was initiated and he (first respondent) was asked to remove the same under section 405 of the Hyderabad Municipal Corporation Act and the police accordingly was informed about the fact that the iron railing of the park was removed during the night of 10-5-1993. The first respondent, however, presented a fake order purportedly issued by this Court and also that he had filed a civil suit, which was on the file of VI Assistant Judge, City Civil Court, in which ex-parte order of status quo was issued on 21-6-1993. The said writ petition has been disposed of by this Court with the following order :
"In the face of the disputed facts that have come to surface, it is possible to grant the relief sought for by the petitioner. Whether or not the land which is being claimed by the petitioner is part of the municipal land, whether or not a house is existing since a long time on the disputed site as alleged by the petitioner and whether or not the number of the house cited by the petitioner is a genuine one, are all matters which cannot be appropriately gone into in the proceedings under Article 226 of the Constitution. But, taking a prima facie view, it is difficult to accept the petitioner's version. In proof of the existence of the house, the petitioner could not produce any documentary evidence. The permission for the construction of the house, if any, is not forthcoming. The version of the petitioner that he purchased the house along with the site under an agreement of sale dated 6-7-1968 is not borne out by the contents of the sale agreement. The sale agreement does not make a reference to the house or any structures. A perusal of the layout shows that certain area has been left out as a park. It is the case of the Municipal Corporation that the petitioner recently encroached the park area and started constructing a room unauthorisedly and the said room had been demolished. It is not possible to say, on the material available, that the version of the Municipal Corporation is incorrect. The property-tax receipt dated 20-4-1993 does not advance the case of the petitioner. This is a receipt obtained just before filing the writ petition and after the alleged interference by the Corporation officials had started. In the affidavit filed in support of I.A. in the civil suit, it is stated that on 10-4-1993 when the petitioner was getting the house repaired, the Corporation officials 'trespassed' into his house and obstructed the renovation work. In the affidavit filed in support of the writ petition, it is stated that on 20-4-1993, the officials came to the house and directed him to dismantle the house. Thus, the tax was paid only after the alleged interference started. There is nothing to show that any building was assessed to tax. The fact that the petitioner paid only a meagre amount of Rs. 300/- would prima facie indicate that the building might not have been the subject matter of assessment but only some open space, as contended by the learned counsel for the respondent. Even assuming that property tax was collected by the Corporation on the assumption that a house bearing No. 10-3-14/B/13 of the declarant had existed, it does not stop the Corporation authorities from taking the stand that no such house really exists. At best, it may be inferred that the tax department of the Municipal Corporation was too eager to get some revenue without verification of the actual state of affairs. In any case, even assuming that a house bearing No. 10-3-14/B/13 exists, the exact location or identification of such house cannot be discerned from the property tax receipt. The petitioner has also relied upon the demand notice dated 5-11-1992 issued by the Water Supply and Sewerage Maintenance Division. Asifnagar. The premises number given in the bill is the same as mentioned in the writ petition. But the name of the petitioner does not figure in the bill. The name of one Thanwardas Hatchand is given therein. Thus, there is no material worthmentioning which goes to establish the fact that the petitioner had constructed a house long back and it has the Municipal No. 10-3-14/B/13. In the circumstances, the version of the Municipal Corporation that the petitioner has recently started construction of a room without permission, encroaching upon the park-land seems to be more probable and credible than the petitioner's version. The action of the respondent - officials in removing such unauthorised construction cannot be faulted on any legal ground. I do not therefore see of reason to grant the relief under Article 226 of the Constitution. However, I would like to make it clear that the Municipal authorities are not entitled to demolish an old house, it any, in which the petitioner is living on the ground of violation of any provisions of the Act or the Rules, without giving a show cause notice and considering the objections that may be filed by the petitioner. At the same time, the petitioner cannot, in the guise of status quo order of the civil court, make any construction or remodelling without the permission of the Municipal Corporation, nor can he encroach upon the part area. If he does so, the Corporation can take appropriate action.
The writ petition is dismissed subject to the above observation. No costs."
Before parting with the case, learned single Judge took serious note of the fact that an order purportedly passed by Justice S. Parvatha Rao on 18-5-1993 in W.P.M.P. No. 7043 of 1993 and another order, dated 27-4-1993 in Writ Petition No. 5500 of 1993 were produced by the first respondent before the Municipal Corporation authorities, which orders admittedly were fake orders, and ordered as follows :
"The petitioner states that the orders were handed over to him by his advocate, Mr. S. S. Perwaiz and that on the strength of the representation made by his counsel, he took them as the correct and authentic orders. It appears that a case has been registered against the petitioner by the police, at the instance of the Special Officer. M.C.H. I consider it a fit case to direct issue of a show cause notice suo motu to the petitioner and the advocate Mr. S. S. Perwaiz as to why proceedings under the Contempt of Courts Act should not be initiated against them."
2. Matter has since come before us. It has, however transpired in the course of hearing and from the records made available to us, that when Corporation authorities entertained doubts about the genuineness of the orders purportedly passed by this Court, which orders the first respondent had produced before them, they lodged complaint with the police, the police registered a case and it seems, apart from registering the case and some attempt to investigate it by interrogating the first respondent, the investigation remained standstill.
3. The second respondent admittedly was the counsel, who filed the writ petition and alleged the Miscellaneous Petition in which Justice S Parvatha Rao passed the order and which order the first respondent used before the Municipal authorities. The second respondent, however, has maintained before us that after the filing of the writ petition and the miscellaneous petition, he returned the file and the papers to the first respondent, nonetheless, on the instruction of the first respondent, filed the civil suit, and obtained the order of status quo in the civil suit. According to him, the first respondent, after his (second respondent) withdrawal from the case, engaged some other counsel and they appeared for him. He has denied altogether any role in the forgery of the order or that he ever handed over any order of the court to the first respondent. He has thus maintained that he never had any knowledge of any such forged order being ini the hands of the first respondent and that the first respondent used such order to benefit himself. The first respondent, on the other hand, has maintained that the second respondent was his counsel who represented to him about the orders passed by the court and handed over a photo copy of the order, which copy he presented before the Municipal authorities.
4. There is, however, sufficient intrinsic evidence for us to hold that the first respondent cannot be innocent in the matter and that without the active role of the second respondent, such an order could have been created. We have such intrinsic evidence available on the record from the materials that the police seized from the possession of the first respondent. There are two applications admittedly drawn by the second respondent and handed over to the first respondent by him, which contained a mention about the proceedings before this court and the orders passed by this court. These petitions are in the draft form and in the pen of the second respondent. Whether the petitions were copied later, someone typed their contents, and first respondent signed them and filed before any authority, are, however, matters which do not concern us at present. It is indeed intrinsic, as we have noticed, in the circumstances of the case that the first respondent was desparately trying to have some order from any court in his favour so that he could defeat the action taken by the Municipal Corporation authorities and the counsel available to help him in his bid to get such an order was the second respondent. The second respondent could not, however, get any such order from the court, yet the first respondent got a photo copy of a purported order of the court and presented the same before the authorities of the Municipal Corporation. Circumstances speak louder than any other evidence on the record that first respondent is not an innocent victim of the designs of the second respondent and that the second respondent is not that innocent counsel who had withdrawn from the case because the client wanted to engage another counsel to work for him. He continued to represent the first respondent and he has admitted before us that he filed the suit in which a status quo order was passed.
5. We have no hesitation thus for the facts as above in holding that both - first respondent and second respondent are involved in creating a fake order and making the same their weapon before the authorities of the Municipal Corporation against any action to be taken by them for the removal of the encroachment by the first respondent.
6. The second respondent has argued his case himself. He has contended the once he had withdrawn from the case and the records were taken away from him by the first respondent, who engaged another counsel to represent him in the High Court in the proceedings aforementioned, he ceased to have any connection with the said proceedings and thus he cannot be found associated with the above act of forging the order of court or fabricating a document to benefit the first respondent. We are not impressed by this contention for the simple reason that had he been that innocent lawyer who was used first by the first respondent and when he found that his game to get an order from the court was not successful, engaged another lawyer. Association of the second respondent with the first respondent survived even the alleged withdrawal of the second respondent from the case. It was he who represented the first respondent in the civil suit in which the order of status quo was passed. Curiously, he never cared to see that a statement was made in the plaint of the suit that a writ petition on the same cause was pending before this court and that some order was likely to passed in the said proceeding. He instead made drafts of the petitions which the first respondent intended to file and left those drafts with the first respondent for any use by him. Photo copy of a fake order, however, surfaced when the first respondent approached the Municipal authorities and sought suspension of the action by them. It was by the alertness of the concerned officer that the forgery was detected and the court could know of such a misdeed on the part of the respondents in the instant proceeding.
7. A technical argument, however, has been advanced before us by the second respondent. He has canvassed before us that since a criminial case has been lodged and the police is investigating the same, any action by this court for contempt will be in the teeth of Article 20 of the Constitution of India and in any case constitute double jeopardy. Article 20 of the Constitution of India reads as follows :
"Protection in respect of conviction for Offences :-
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself."
8. A mere glance at the words employed by the Constitution makers in the said provisions is enough for the conclusion that the same shall be attracted only when there is a conviction of any offence and he has already been subjected to a penalty. The words-"shall be prosecuted and punished for the same offence more than once" - cannot be dissected to read as prosecuted for the same offence more than once and punished for the same offence more than once. It is an explanation of the common law principle of 'double jeopardy' ex post facto and is a protection against testimonial compulsion. Beginning from Makbool v. State of Bombay, 1953 SCR 730 : (1953 Cri LJ 1432) and finally in Asst. Customs Collector v. Melwani, the Supreme Court has dealt with this important aspect of the law and pointed out that the offence for the purposes of such a bar must be the same involving the same ingredients in all respects and a trial for a separate and distinct offence is not barred. This, however, supplement Section 26 of the General Clauses Act, 1897 and the provisions of the Code of Criminal Procedure, 1973 and bar a second prosecution after conviction or acquittal for an offence by the doctrine of autrefois convict or autrefois acquit.
9. The action for contempt under Article 215 of the Constitution of India, however, is not equated with a criminal proceeding. This aspect of the law has been considered by a Full Bench of the Madras High Court in Vidya Charan Shukla v. Tamil Nadu Olympic Association, and it has been pointed out with reference to the various authorities by one of us (P. S. Mishra, J as I then was), particularly the judgment of the Supreme Court in Sukhdev Singh v. Teja Singh, AIR 1954 SC 186 : (1954 Cri LJ 460) that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. Speaking particularly with reference to Article 215 of the Constitution and the Contempt of Courts Act, 1971, the said judgment reads as follows :
"Article 215 of the Constitution has made no distinction between a civil contempt or a criminal contempt and covers the whole field of litigation, civil or criminal and any thing that tends to curtail or impair the freedom of the limbs of the judicial proceedings. The courts in their attempt to identify the nature of contempt have noticed however, three different sorts of contempt viz., (1) scandalising the court itself, (2) abusing parties who are concerned in causes before it and (3) prejudicing mankind against persons before the case is heard. We need not however, wander into this arena as the Parliament has enacted the Contempt of Courts Act, 1971 and defined "contempt of Court" to mean civil contempt or criminal contempt, 'civil contempt' 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" to mean the publication, whether by words, spoken or written or by single or by visible representations, or otherwise of any matter or the doing or any other act whatsoever which scandalises or tends to scandalise or lowers or tends to lower and the authority of any Court or prejudice or interferes or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. The present appeal is concerned with the civil contempt only, although it is conceded before us that there are several allegations in the contempt application, which make out a case of criminal contempt. Civil contempt is thus essentially concerned with the enforcement of judgment, decree, direction, order, writ or other process of a Court. The administration of justice can only be effective if it has the means to enforce the court's judgment and orders. That is why civil contempts are also called contempt in procedure. Courts also do not easily resort to the contempt procedure. Contempt is a blunt weapon. It is used sparingly and only in cases where when it is found difficult to generate obedience and respect for the court or when a court attempts to secure obedience to its orders, direction, etc., or to elicit respect to it. It rarely does any such thing to grandoise its officers on the man power including the judges. It does so, first to undo the wrong done and secondly to ensure that the administration of justice is not brought into a scorn or ridicule because there is no interest of the court, which is not public interest. If violations of the Court's order will be ignored, there will be nothing left save for each person to take the law into his own hands. Loss of respect for the Courts will ultimately result in the destruction of the rule of law and ultimately the society. Still courts before seeking enforcement of their order, want to be satisfied first to whom the order, writ or direction was addressed, whether to whom the order was addressed know about the court's order or not and whether such a person had wilfully disobeyed the order of the court or not."
10. It has been pointed out in the said judgment that contempt proceedings are described as quasi criminal proceedings only in the sense that contemner should be afforded a fair opportunity of being heard, otherwise they are proceedings of a summary nature. The contemners are not accused in the ordinary sense of an offence as contemplated under the penal laws of the land although in some parts and by way of description contemners are some times called 'accused'.
11. Second respondent has, however, placed reliance upon the decision in Manohar Lal v. Prem Sankar Tandon, a case, however, in our view, which is of no help to him. We have no manner of doubt that the action which this court has proposed against the respondents cannot be defeated on the ground that criminal case has been lodged against him. We are also informed that the Bar Council of the State has taken action against the second respondent and has cancelled his enrolment to practice as an Advocate. There has been some controversy - whether the order of State Bar Council has been stayed by the Supreme Court. There have been quite a few misrepresentations in this behalf before us, but finally the Chairman of the Bar Council and the learned Advocate General have clarified the position that there is no interference with the order of the Bar Council of the State by any appellate authority or any other authority which can interfere with its order. There has been an attempt accordingly before us that, if not the lodgement of the police case, the action by the Bar Council is a punishment already imposed upon the second respondent. The second respondent for the said reason cannot be subjected to the action under Article 215 of the Constitution of India. We are surprised, however, how any disciplinary proceeding against the second respondent by the Bar Council, which is a domestic tribunal for the purposes of discipline and etiquette which the advocates must maintain, can be equated with a conviction for the offence of contempt or a conviction for any offence under the Indian Penal Code or any other law. A disciplinary proceeding has nothing to do with a proceeding for imposition of punishment in the court of law or for the contempt of court by an advocate. Assuming for a moment that conviction by the criminal court will be a ground to agitate and contend that any action for convicting the second respondent for contempt will constitute double jeopardy. We find, on the facts in the instant case, that such a plea is not available to the second respondent at all. The police case is only at the investigation stage. It is yet to convert into a proceeding in the court of law and end either with conviction or acquittal of the second respondent. It may, if at all such a situation arises, be a ground available to the second respondent against the charge in a regular criminal court that he has already been convicted for the offence of contempt of the High Court and thus he should not be punished over and over again for forging an order of the court-a plea which we have every reason to think may not be available to the second respondent in law.
12. For the reasons that we have stated above, we have no hesitation in holding that respondents 1 and 2 are guilty of committing the forgery or an order of this court and thus guilty of committing criminal contempt. Their conduct and action in forging an order of the court and producing the same before the Municipal authorities are evidently intended to scandalise the authority of the court and cause obstructions in the administration of justice by the court. Respondents for the said reason are found guilty and accordingly convicted for contempt of court.
13. We are conscious that the courts resort to contempt proceedings sparingly and only when it is necessary for keeping the administration of justice clean and clear. We cannot, however, ignore the fact that respondents have resorted to fabrication and forgery of an order and used the same as the order passed by the one of the Honourable Judges of this court in a proceeding pending in the court. They have done a thing which, if left unpunished, shall shake the confidence of the people in the administration of justice. We cannot for the said reason allow any sympathy or compassion to overtake the need to punish such persons severely. We would have chosen to award the maximum punishment to the respondent, but have decided to impose imprisonment for a period of four months to the respondents in the hope that others will learn the lesson from the fate of the respondents, who have resorted to forgery and have chosen the court as the victim. It is ordered accordingly. Respondents shall be taken in custody forthwith and remanded to undergo the imprisonment as ordered above.
14. Respondents have filed petitions for the supension of the order of sentence. We are, however, not inclined to suspend the sentence. It shall be open to the respondents to apply for bail.
15. Order accordingly.