1 17CAPL-3-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT APPEAL NO.3 OF 2011 WITH CIVIL APPLICATION NO.4 OF 2011 IN CONTEMPT APPEAL NO.3 OF 2011 1. Sushila Yadav, ] An adult, Indian Inhabitant, ] a Trustee of the Vedant Cultural, ] Foundation, a Public Trust registered ] under the provisions of the Bombay ] Public Trusts Act, 1960, having its ] address at Malavali, Taluka – Maval, ] District – Pune. ] 2. A. Parthasarthy, ] An adult, Indian Inhabitant, ] a Trustee of the Vedant Cultural, ] Foundation, a Public Trust registered ] under the provisions of the Bombay ] Public Trusts Act, 1960, having its ] address at Malavali, Taluka – Maval, ] District – Pune. ]..APPELLANTS. [Orig.Respondent Nos.6 & 7] Versus 1. Niti Ratansi Bhate (Merchant), ] An adult, Indian Inhabitant, ] having office at Design ] Multiples, Block No.10, ] 3rd Floor, Raghuvanshi Mill ] Compound, 11-12, S.B. Marg, ] Lower Parel, Mumbai – 400 013. ] 2. Chandrakant Dalvi, ] The Collector, Pune, having ] his office at Collectorate, ] Pune – 411 001. ] 3. P.N. Bhogale, ] The Assistant Director, ] Town Planning, Town ] PPD 2 17CAPL-3-11 Planning Department, ] Pune. ] 4. The Sub-Divisional Officer, ] Maval Sub Division, Pune. ] 5. The Divisional Commissioner, ] Pune Division, Pune. ]..Respondents [R.No.1-Orig.Petitioner, and R.Nos.2 to 5-Orig.R.Nos.2 to 5] ------------- WITH CONTEMPT APPEAL NO.4 OF 2011 WITH CIVIL APPLICATION NO.5 OF 2011 IN CONTEMPT APPEAL NO.4 OF 2011 1. Sushila Yadav, ] An adult, Indian Inhabitant, ] a Trustee of the Vedant Cultural, ] Foundation, a Public Trust registered ] under the provisions of the Bombay ] Public Trusts Act, 1960, having its ] address at Malavali, Taluka – Maval, ] District – Pune. 2. A. Parthasarthy, ] An adult, Indian Inhabitant, ] a Trustee of the Vedant Cultural, ] Foundation, a Public Trust registered ] under the provisions of the Bombay ] Public Trusts Act, 1960, having its ] address at Malavali, Taluka – Maval, ] District – Pune. ]..APPELLANTS. [Orig.Respondent Nos.6 & 7] Versus 1. Electra Estates Private ] Limited, a Company incorporated ] under the Companies Act, ] having its office at Hague ] Building, 9, Sprott Road, ] Ballard Estate, Mumbai - ] 400 001. ] 3 17CAPL-3-11 2. Rakesh F. Sachdev, ] Adult, Indian Inhabitant, ] Director of Electra Estates ] Pvt. Ltd. having his office ] at Hague Building, 9, Sprott Road, ] Ballard Estate, Mumbai - ] 400 001. ] 3. The Collector, Pune, ] having his office at ] Collectorate, Pune - ] 411 001. ] 4. Assistant Director, ] Town Planning, ] Town Planning Department, ] Pune. ] 5. The Sub-Divisional Officer, ] Maval Sub Division, Pune. ] 6. The Divisional Commissioner, ] Pune Division, Pune. ]..Respondents [R.No.1 & 2 -Orig.Petitioners, & R.Nos.3 to 6-Orig.R.Nos.2 to 5] .......... Mr.Vijay Thorat, Senior Counsel a/w. Sanjay Jain, Rohaan Cama, Sanjay Udeshi, Ms.Aishwarya Menon – i/b. Sanjay Udeshi & Co. for the Appellants. Mr.Y.S. Jahagirdar, Senior Advocate a/w. K.S. Dewal, for Respondent No.1. Mr.V.D. Patil, AGP, in CAPL NO.4/2011 for Respondent Nos.3 to 6, in CAPL NO.3/2011 for Respondent Nos.2 to 5 and in CAPL No.5/2011 for Respondent Nos.3 to 6. .......... CORAM : A. M. KHANWILKAR AND P. D. KODE, JJ. DATED : 14th SEPTEMBER, 2011. 4 17CAPL-3-11 ORAL JUDGMENT (PER A. M. KHANWILKAR, J.) : 1. Heard Counsel for the Appellant and Respondent No.1 on the issue of preliminary objection regarding maintainability of the appeal. 2. At the outset, Counsel for the Appellant has made it amply clear that both the Appeals have been filed under Clause 15 of the Bombay High Court Letters Patent and not under the provisions of the Contempt of Courts Act. That statement is placed on record. The Appellants are granted leave to amend the respective appeals to incorporate the above statement. 3. Reverting to the preliminary objection raised on behalf of Respondent No.1 about maintainability of the appeal the question is whether the order impugned in the present appeals can be said to be a judgment amenable to the Appeal under Clause 15 of the Letters Patent. For that, we may advert to the prayer clause (c) in the Contempt Petition. Same reads thus : “(c) Pending hearing and final disposal of the present Petition, this Hon'ble Court be further pleased to direct the Respondent No.4 to remove the low height barrier installed on the said road for restricting the heavy vehicles movement thereon and accordingly, allow the Petitioner as well as the general public at large to use the said road;” 5 17CAPL-3-11 4. Learned Single Judge of this Court vide order dated 13.1.2011 granted ad-interim relief in terms of prayer clause (c); which ad-interim order has been later on confirmed by the impugned order dated 2.2.2011. 5. Going by the plain language of prayer clause (c), it is obvious that it is a direction issued against Respondent No.4 in the Contempt Petition, which is nothing short of a mandatory order. If it is a mandatory order, it would obviously have the characteristics and nature of finality and would obviously affect the valuable right of one or the other party. In that view of the matter, considering the exposition of the Apex Court in the case of Midnapore Peoples' Coop. Bank Ltd. and others Vs. Chunilal Nanda and others, (2006) 5 Supreme Court Cases 399 in para-12 read with paras-15 & 16, the impugned order will have to be construed as a judgment within the meaning of Clause 15 of the Letters Patent. In the light of the exposition of para-45 of the decision in the case of Tamilnad Mercantile Bank Share Holders Welfare Association Vs. S.C. Sekar and others, 2009(2) SCC 784 the remedy of Letters Patent Appeal under clause 15 would be available against such order, which is a judgment within the meaning of 6 17CAPL-3-11 Clause 15. 6. Counsel for Respondent No.1, however, contends that the said order is issued against Respondent No.4 – Sub Divisional Officer and not against the Appellants. That does not mean that the Appellants cannot approach the Court with a grievance that they are the aggrieved persons. Inasmuch as, if Respondent No.4 were to act upon the said order, that would directly affect the valuable rights of the Appellants in the property in their occupation. Whether that claim of the Appellants is acceptable or not is a matter to be examined in Appeal on merits. If the Appellants are likely to be affected due to the enforcement of the interim order of this Court, certainly they would be aggrieved persons due to the order passed by the learned Single Judge. In that case, the remedy of Appeal under Clause 15 of Letters Patent is available even to such party. Further, the Respondent No.1 is independently pursuing remedy of Contempt even against the Appellants in subsequently filed proceedings in relation to the subject property. In the circumstances, the preliminary objection regarding maintainability of the Appeal raised by Respondent No.1 is turned down. The matter will have to proceed on merits. 7 17CAPL-3-11 7. We have heard the Counsel for the Appellants and Respondent No.1 on merits as well. For the nature of order that we propose to pass, we do not think it necessary to advert to all the factual matrix of the case which has led to filing of the present Appeals. Suffice it to observe that the Collector i.e. Respondent No.4 in the Contempt Petition had passed an order on 3.6.2008. That order was subject matter of challenge in the Writ Petition filed by Respondent No.1/Writ Petitioner. Interim order was passed in the said Writ Petition on 19.11.2008 directing the Collector to restore the status-quo ante prior to 3.6.2008. It is common ground that later on the Appellants made representation to the Chief Minister and other State Authorities. Pursuant to the said representation, the Chief Minister issued direction to the Collector to reexamine the matter and take appropriate decision as may be advised. As a consequence of the said direction, the Collector reexamined the matter and passed order on 1.10.2010 thereby granting the lay out and amalgamating the adjoining plots owned by the Appellants. It is common ground that the said decision of the Collector has not been challenged so far. 8. Indeed, Respondent No.1 during pendency of the Writ 8 17CAPL-3-11 Petition took out Contempt Petition for disobedience of order dated 19.11.2008 by the Collector. It is also common ground that the Collector has withdrawn his order dated 3.6.2008, which was the subject matter of Writ Petition filed by Respondent No.1. On that basis, Writ Petition came to be disposed of with liberty to Respondent No.1 to pursue the Contempt proceedings. Obviously, therefore, the Contempt Petition has been proceeded further and the impugned judgment came to be passed by the learned Single Judge. Presently, show-cause notice has been issued only to Respondent No.4 – Collector. In addition, directions have been issued to the Collector in terms of prayer Clause (c) of the Contempt Petition which is reproduced in the earlier part of this judgment and which are impugned in these Appeals. 9. Amongst diverse grounds raised by the Appellants, the argument that commends us, is that, the learned Single Judge ought to have dealt with the efficacy of the decision of the Collector dated 1.10.2010 in the first place. If prima facie finding was to be recorded by the learned Judge that the fact situation has changed because of the said order dated 1.10.2010 than the one emerging from order dated 3.6.2008, Respondent 9 17CAPL-3-11 No.1/Writ Petitioner would be required to challenge the said decision and could not be allowed to pursue the remedy of Contempt Petition. We find force in the submission made on behalf of the Appellants that the learned Single Judge ought to have dealt with this aspect of the matter at the first instance keeping in mind the analogy of the exposition of the Apex Court in the case of State of Orissa and another Vs. Ashwini Kumar Baliar Singh, (2006) 6 Supreme Court Cases 759, in particular para 6, where the Court has observed thus :- “6. Thus, no direction was issued by the High Court against the State of Orissa. It is not in dispute that the cause of action for filing the contempt petition arose as the Inspector of Schools passed an order consequent upon the government orders issued by the Government of Orissa on or about 24-4-2000. The Inspector of Schools was bound to give effect to the said orders. The said government orders may be legal or illegal; but by no stretch of imagination can it be said that the Inspector of Schools committed contempt of court in complying with the directions of the State of Orissa. For the purpose of setting aside the order of the Inspector of Schools, the government orders were required to be set aside. The said government orders having been issued subsequent to the order of the High Court, no direction indisputably had been or could be issued in that behalf in the writ petition. A contempt petition, in our opinion, thus, was not maintainable. “ 10 17CAPL-3-11 10. We have carefully gone through the reasons recorded by the learned Single Judge, in particular, para-8 and part of para 9 which refer to the order passed by the Collector dated 1.10.2010. With due respect, the same does not deal with the efficacy of the said order dated 1.10.2010. If the learned Single Judge were to opine that the fact situation is completely altered on account of order dated 1.10.2010, in that event the question of proceeding with the contempt action would not arise; but, then the appropriate remedy for the Writ Petitioner would be to challenge the said decision. We are informed that the Collector has already withdrawn his orders dated 1.10.2010 and 3.6.2008. By the same communication, he has clarified that all aspects that would arise for consideration would be reexamined after giving opportunity to all the parties. 11. The fact remains that the judgment under appeal does not specifically deal with the efficacy of order dated 1.10.2010 and the position emanating therefrom. Depending on that finding, it may have to be examined whether the Writ Petitioner is obliged to challenge the same instead of pursuing Contempt action. If those aspects were to be answered against the Writ Petitioner, the dictum of the Apex Court in the case of State of 11 17CAPL-3-11 Orissa (supra) adverted to in the earlier part of this judgment may become applicable. These are the matters which ought to have been addressed at the first instance before confirming the ad-interim order granted on 13.1.2011 in the Contempt Petition. 12. We may place on record the other contentions canvassed before this Court at the instance of the Appellants that the Judge, who took up the Contempt Petition, has had no jurisdiction to issue interim direction in the said proceedings. Reliance was placed on the decisions in the case of State of Orissa (supra) [para 8], as well as Midnapore Peoples' Coop. Bank Ltd., (supra) [para 21]. However, we are in agreement with the submission canvassed by Respondent No.1 that the exposition in the said decisions pressed into service, is complete misreading thereof. Whereas the Apex Court in the case of All Bengal Excise Licensees' Association Vs. Raghabendra Singh and others, (2007) 11 Supreme Court Cases 374 [para 27] has clearly opined that the High Court while entertaining the Contempt Petition has power to issue appropriate direction to the Contemnors to undo the wrong committed by them which was done in clear breach of the order of the High Court by restoring the status quo ante. It is not 12 17CAPL-3-11 necessary to dilate on this issue any further. 13. For the reasons recorded hitherto, we are inclined to set aside the impugned judgment dated 2.2.2011 to the extent it has confirmed the ad-interim order dated 13.1.2011 and relegate the parties before the learned Single Judge to reconsider the issue of confirmation of ad-interim order afresh in the light of what has been observed in the earlier part of this judgment. It will be open to the parties to move the learned Single Judge for fixing date of hearing for confirmation of ad-interim order / granting interim relief in terms of prayer clause (c) of the Contempt Petition. Till that issue is decided, one way or the other, the order of status quo passed in these Appeals shall continue. Appeals and the accompanying Civil Applications are disposed of accordingly. (P. D. KODE, J.) (A. M. KHANWILKAR, J.)