Bombay High Court
Ishwar Naidu And Etc. Etc. vs Municipal Corporation Of Greater ... on 8 January, 1997
Equivalent citations: 1997(3)BOMCR215, (1997)2BOMLR670, 1997CRILJ712, 1998(2)MHLJ619
Author: R.M. Lodha
Bench: R.M. Lodha
ORDER
1. This group of 8 contempt petitions give rise to the identical question and, therefore, these contempt petitions have been heard together and are disposed of by this common order.
2. To avoid multiplicity, the facts obtaining in contempt petition No. 298/95 are adverted to. According to this Petitioner he has been in use, occupation and possession of a structure bearing gala No. 5 admeasuring 4.70 to 4.80 metres situate at C.T.S. 1322 S. No. 161. Jeetnagar, Near Bharatnagar, Opp. Varsowa, Four Bungalow, Andheri (W), Bombay for last more than 20 years and has been carrying on business in the said structure. According to the Petitioner in the month of October 1991 the officers of Respondent No. 1 herein viz. Municipal Corporation of Greater Bombay threatened him to demolish the aforesaid structure which compelled the Petitioner and other Petitioners to file a joint suit against the Respondents bearing No. L.C. Suit No. 6068/91. Ultimately they thought it fit to file separate suit and accordingly 8 separate suits were filed and the Petitioner's suit was registered as Suit No. 9304/91. The Petitioner moved for ad interim order but that was refused and aggrieved by that order A.O. 985/92 was preferred before this Court. In that A.O. the counsel for B.M.C. made the statement that no action would be taken in respect of the disputed structure and accordingly on 7-10-1992 this Court disposed of the appeal. It appears that thereafter on 26-11-1992 notices under Section 351 of B.M.C. Act. 1888 was issued to all the Petitioners to which replies were filed. Thereafter some letters were received from the Respondents by the Petitioners and separate suits were filed with prayer for ad interim order, but the trial Court refused to grant any ad interim order. The Petitioners preferred appeals and the said appeals were disposed of by this Court by granting ad interim order in favour of Petitioners till disposal of notice of Motion. The Notices of Motion were disposed to by the trial Court on 29-3-1994 whereby the trial Court directed the Dy. Municipal Commissioner to give personal hearing to the Petitioners before passing the order of demolition. Thereafter order of demolition was passed and the Petitioners were directed to remove structure within 6 weeks from receipt of the order, failing which the Corporation would demolish the same. Upon receipt of the order from Dy. Municipal Commissioner, the Petitioners served notice under Section 527 of the B.M.C. Act upon the Respondents and then filed the suit afresh and prayed for ad interim relief. The trial Court did not grant any ad interim order leading to filing of appeals before this Court. In the appeals civil applications were taken out and on 7-9-1995 after hearing the counsel for Petitioners as well as the counsel for B.M.C., this Court granted ad interim relief in terms of prayer - (a) pending admission. Accordingly the Respondents, their servants, agents, officers and other persons on their behalf were restrained from demolishing, removing or pulling down the suit premises or any part thereof and/or taking any action in pursuance of the notice under Section 351 of the B.M.C. Act. The order dated 7-9-1995 was passed in the presence of the counsel for Respondents, and, despite the restraint and injunction order passed by this Court the Respondents demolished the suit structures by bulldozers on 20-9-1995 giving rise to the present eight contempt petitions.
3. An affidavit in reply has been filed in contempt petition No. 298/95 by one Shri Bharat Padmakar Patil, Assistant Engineer in the employment of Respondent No. 1 B.M.C. and the learned counsel for Respondents urged that the said affidavit in-reply the treated as affidavit in reply in all contempt petitions. In the affidavit in reply the Respondents have denied that the Petitioners communicated the order dated 7-9-1995 by letter dt. 12-9-1995 as alleged and stated that Petitioners be put to strict proof. In para 13 of the affidavit in reply it is admitted that the Respondents Nos. 3, 4, 5 demolished the suit premises on 20th September, 1995 at about 12 noon with demolition squad.
4. In para-3 of the affidavit in reply the following statement has been made by the deponent-3. At the outset, I tender my unconditional apology to this Hon'ble Court for the action of demolition of the structure, in the event this court come to the conclusion that the action of demolition of petitioner's structure amounts to the contempt of this court."
5. I have heard Mrs. Malvankar, learned counsel for the petitioners, and, Mrs. Shah, learned counsel for respondents, and, perused the order dated 7-9-95 and the available material.
6. The learned counsel for the petitioners strenuously contended that the respondents in utter disregard of the order of this Court passed on 7-9-95 and in gross breach thereof demolished the suit structures on 20-9-1995 despite the knowledge of the order dt. 7-9-95. The learned counsel for petitioners would also submit that the respondents had full knowledge of the injunction/restrain order passed by this Court on 7-9-95 and despite the knowledge of the said order, they deliberately and intentionally demolished the suit structures with no respect for the order of this Court. The learned counsel for the petitioners contends that the disobedience of the order dt. 7-9-95 by the respondents and action of demolition of the suit structures despite the injunction order passed by this Court on 7-9-95 is civil contempt under S. 2(b) of the Contempt of Courts Act, 1971, and, the respondents must be punished accordingly.
7. On the other hand, Mrs. Shah learned counsel for the respondents contended that the respondents had no knowledge of the order dated 7-9-95 nor the respondents received the letter dt. 7-9-95 on 12-9-1995 allegedly sent by the petitioner communicating the order dt. 7-9-95. She would submit that there was no mala fide action on the part of respondents in demolishing the suit structures on 20th September 95 and, therefore, the respondents cannot be held guilty for committing breach of the order dated 7-9-95. The learned counsel for respondents would also urge that the respondents have tendered unconditional apology for the action of demolition of the suit structures and, therefore, the apology may be accepted.
8. I have considered the contentions raised by the learned counsel for the parties.
9. The present case demonstrates the high-handedness on the part of respondent No. 1 and its authorities i.e. respondents Nos. 2 to 5 and shows the scant respect of the public authority and officials towards the order passed by this Court on 9-9-1995 in the presence of the counsel for respondents. By demolishing the suit structure on 20th Sept. 95 on the face of the order dated 7-9-95, the respondent No. 1 and its officers viz. respondents Nos. 2 to 5 acted highly irresponsibly and in utter disregard of the order of this court. The order passed by this Court on 7-9-95 was not only sidelined and ignored but action of demolition was taken in contravention and utmost disrespect of the said order. The order dt. 7-9-95 was passed by this Court in the presence of the counsel for respondents and the learned counsel for respondents did admit that the order dt. 7-9-95 restraining the respondents from demolishing the suit structure was passed in her presence. It is indeed shocking that though the order dt. 7-9-95 was passed in presence of the counsel for respondents after hearing her, yet a brave defence has been sought to be set up by the respondents that no communication was sent by the petitioner about the order dt. 7-9-95 to the respondents. When a order is passed by the court in presence of counsel for the parties, no further communication is required to be sent by the other party intimating about the order passed by the Court. It is not the case of the respondents in the affidavit in reply filed by respondent No. 3 that their counsel did not intimate about the order dt. 7-9-95. Obviously that could not have been. The order was passed on 7-9-95 restraining the respondents from demolishing the suit structures pending admission of the appeals and that restraint order was passed after hearing the counsel for respondents and in her presence and, therefore, it is clear that the respondents did have the knowledge of the order dt. 7-9-95 passed by this Court. Not only that, the learned counsel for petitioners has shown me as well as the learned counsel for respondents the copy of the letter dt. 7-9-95 sent to the respondents with the endorsement of receipt dated 12-9-95 bearing the official seal of respondent No. 1 and initials of the concerned official. Photostat copy of the said document has been placed on record during the course of arguments. It is clear from the said document also that respondents have received the letter dt. 7-9-95 on 12-9-95 intimating the respondents about the injunction order passed by this Court on 7-9-95. The stand taken by the respondents, therefore, that the said letter dt. 7-9-95 was not received by them on 12-9-95 is palpably incorrect. It does not behave of public authority like B.M.C. and its officials to take up untrue and incorrect stand to save the unauthorised act of its officials. It is apparent that the affidavit filed by the respondent No. 3 Shri B. A. Patil, Assistant Engineer contains incorrect statement which is very serious matter and indicates his disrespect for judicial proceedings. A public authority and its officials are expected to bring before the Court true facts and they are not expected to aver incorrect or untrue statements. How could the respondents deny the receipt of the letter dt. 7-9-95 when the endorsement of receipt dated 12-9-95 is made on the copy of the letter with the seal of respondent No. 1 and the initials of the concerned official. It is expected of a lawyer representing public authority to make it known to its officials the responsibility and the consequences flowing if they conceal or suppress the true facts or make untrue and incorrect statements in the courts. I, have no hesitation in holding that the respondents had full knowledge of the order dt. 7-9-95 which was passed in presence of their counsel and that was intimated also by the petitioners vide communication dt. 7-9-95 and it was received by the respondents on 12-9-95 and despite the knowledge of the injunction order dt. 7-9-95 passed by this Court the respondents in utter disregard of the order passed by this Court demolished the disputed structures which is nothing but intentional and deliberate act of disobedience of the order passed by this Court.
10. The rule of law cannot be allowed to be tampered with by the high-handed action and act of the public authority and its officials. Rather the public authority and its officials are expected to act more responsibly. The respondents could not have taken law into their own hands and demolished the structures for which there was injunction order passed by this Court. The act of demolition of the disputed structures on 20th September 95 even after 13 days of the injunction order passed by this Court reflects the scant respect by the respondent No. 1 and its officials towards the orders of this Court. Not only that even incorrect and untrue statement has been made in the affidavit in reply of respondent No. 3 that communication dt. 7-9-95 sent by the petitioner was not received on 12-9-95. Such incorrect statement compounds the defiant attitude of the respondent No. 1 and its officials for the rule of law treating themselves to be all powerful and above law. How could law enforcing authority like respondent No. 1 break the law by acting in contravention of the order of this Court passed on 7-9-1995 ?
11. For all the aforesaid reasons I have no hesitation in holding that respondents are guilty of civil contempt under S. 2(b) of Contempt of Courts Act 1971 for disobeying the order passed by this Court on 7-9-95.
12. I heard the learned counsel for the parties on the punishment to be inflicted on the respondents for the civil contempt committed by them. Mrs. Shah, learned counsel for respondents urged that respondents tender their unconditional apology and that may be accepted. I am afraid the prayer made by the learned counsel for the respondents cannot be acceded to. Respondents Nos. 2, 4, 5 have not filed any affidavit in reply nor have they tendered any apology. The respondent No. 3 has filed his affidavit in reply and has dare set up incorrect and untrue statement. Besides that para 3 of the said affidavit does not show that the apology is unconditional with repentance though the expression 'unconditional apology' has been used. The crux of para-3 of affidavit in-reply is that in the event this Court comes to the conclusion that the action of demolition of petitioners' structures amounted to contempt of this Court, then he tenders unconditional apology. This is no apology, muchless unconditional apology, particularly when para-3 of affidavit in reply is read in the context of other paragraphs of the reply. I am, therefore, not persuaded to accept the apology stated in affidavit in reply of respondent No. 3. Moreover before me number of contempt petitions have come up in which the respondent No. 1 and its officials have grossly flouted the orders of Courts below as well as this Court and acted in utter disregard thereof with impunity. Present case is one of such cases which shocks the Court that the order passed by this Court in presence of the counsel for respondents has been grossly disobeyed by demolishing the suit structures and untrue and incorrect statement has been made about the knowledge of the order dt. 7-9-95. Such high-handed act in gross disregard of the rule of law and the order of this Court cannot be condoned lightly and suitable punishment deserves to be passed to uphold the majesty of law to ensure that public authorities and its officials act responsibly and respect the orders of the Court.
13. Taking overall facts and circumstances of the case, I am of the view, each of respondents Nos. 2 to 5 deserve to be punished for the contempt committed by them by directing them to undergo simple imprisonment of one month and fine of Rs. 1000/-. The payment of fine shall be made by each of the respondents Nos. 2 to 5 personally in each of the contempt petition and sentence will run concurrently. As regards respondent No. 1, it being a corporate body, for the civil contempt committed, I order fine of Rs. 2,000/- in each of the contempt petitions. Upon deposit of the fine by the respondents each of the petitioners may be paid the amount of fine so deposited. The respondent No. 1 shall recover the amount of fine payable by it from erring officials.
14. All the 8 contempt petitions are disposed of in aforesaid terms. Rule is made absolute.
15. The learned counsel for respondents prays for stay of this order. For a period of four weeks, the operation and effect of this order shall remain stayed.
16. Order accordingly.