:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.564 OF 2007 NO.564 OF 2007 NO.564 OF 2007 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.186 OF 2007 OF MOTION NO.186 OF 2007 OF MOTION NO.186 OF 2007 IN IN IN CONTEMPT CONTEMPT CONTEMPT PETITION NO.128 OF 2006 PETITION NO.128 OF 2006 PETITION NO.128 OF 2006 IN IN IN WRIT WRIT WRIT PETITION NO.1629 OF 2002 PETITION NO.1629 OF 2002 PETITION NO.1629 OF 2002 Harshawadan Bandivadekar Partner of M/s.S.B.Brothers Developers, House No.1, Nasarwanji Wadi, Gabriel Road, Mahim, ..Appellant ..Appellant ..Appellant Mumbai - 400 016. (Ori.Respondent No.1) Vs. 1. Taramati Harishchandra Ghanekar 2. Raghunath Sonu Malap 3. Suresh Jagannath Surve 4. Tukaram Vithal Malap 5. Damodar Balkrishna Todankar 6. Kamlakar Nathuram Hindalekar All residing at D.D.Thakur Wadi, Final Plot No.883, TPS IV, Mahim Division, S.K.Bole Road, Dadar, Mumbai - 400 028. 7. Rajaram Raghunath Ambre, Chairman of Swarupananda Co-operative Housing Society. 8. Gajanan Daji Borkar, Secretary of Swarupananda Co-operative Housing Society. 9. Shri.Debashish Chakraborty, Chief Executive Officer, Slum Redevelopment Authority, ..Respondents ..Respondents ..Respondents having office at Old Customs (Respondent Nos.1 to House, Shahid Bhagatsingh Road, 6 - Ori.Petitioners, Fort, Mumbai - 400 001. Respondent Nos.7 to 10 - Ori.Respondent 10. The State of Maharashtra Nos.2 to 5) Mr.V.A.Thorat, Senior Advocate i/b.Umashankar Upadhyay for the Appellant. Mr.D.P.Madon, Senior Advocate with S.A.Sawant, Ms.Gunjan Shah for Respondent Nos.1,3,4 and 6. Mr.G.D.Utangale for Respondent No.9. None for Respondent Nos.2,5,7 and 8. :2: CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & ANOOP ANOOP ANOOP V.MOHTA, JJ. V.MOHTA, JJ. V.MOHTA, JJ. JUDGMENT JUDGMENT JUDGMENT RESERVED ON : 11TH JANUARY,2008 RESERVED ON : 11TH JANUARY,2008 RESERVED ON : 11TH JANUARY,2008 JUDGMENT JUDGMENT JUDGMENT PRONOUNCED ON : 16TH SEPTERMBER,2008 PRONOUNCED ON : 16TH SEPTERMBER,2008 PRONOUNCED ON : 16TH SEPTERMBER,2008 ORAL ORAL ORAL JUDGMENT (PER DR.S.RADHAKRISHNAN,J.) JUDGMENT (PER DR.S.RADHAKRISHNAN,J.) JUDGMENT (PER DR.S.RADHAKRISHNAN,J.) 1. By this Appeal, the Appellant is challenging the judgment and order of the learned Single Judge dated 20th April,2007 in the above Notice of Motion. The Respondents (Petitioners in the Contempt Petition) formed a Co-operative Housing Society named ‘Swarupanand Co.Op. Housing Society in respect of a certain property, for which they had appointed the Developers M/s.S.B.Brothers Developers, a partnership firm, of which Appellant is a partner. 2. The Respondents had filed a Writ Petition in this Court, which had been disposed of by an order dated 18/06/2002, perusal of which shows that; On 03/05/2002, the Appellant being a partner of the Developer firm had filed an undertaking that the construction of the building for accommodating the Respondent-Slum-dwellers would be completed and that they would be given possession of their respective premises within the period of 24 months from the date of the order. An affidavit to that effect was filed by the Appellant in this Court, the Court accepted the said undertaking and consequently disposed of the Petition. 3. However, the Appellant had failed to abide by his undertaking within the stipulated period of 24 months which expired on 18/06/2004. :3: 4. The Respondents have submitted that as the Appellant had failed to comply with the aforementioned undertaking, the Respondents had; i) approached the Statutory Authority, viz. the Slum Rehabilitation Authority, and filed several representations for taking appropriate action against the Appellant. ii) addressed a letter dated 13/12/2005 to the Appellant directing him to abide by his undertaking. iii) issued letters to the Slum Rehabilitation Authority, but to no avail. iv In view of the above, the Respondents being left with no other remedy, filed the above Contempt Petition No.128/2006 on 06/11/2006 against the Appellant, stating that he has committed a breach of the undertaking given to this Court and further praying for directions be given to the Slum Rehabilitation Authority to forthwith change the Developer and for directions to be given to the C.E.O. of the Slum Rehabilitation Authority to complete the Project as expeditiously as possible. :4: 5. The Appellant took out a Notice of Motion No.721/2006 on 07/12/2006 praying for an extension of time to allow him to rehabilitate the tenants and to comply with the order dated 18/06/2002 in the above Writ Petition. 6. In his Affidavit in Support of the abovementioned Notice of Motion, the Appellant has stated that he has already constructed the A and B wings of the Rehab building. The S.R.A. has issued its Part Occupation Certificate on 25/08/2006 and that the tenements had been allotted to the eligible slum-dwellers, with the Appellant submitting that he would complete the construction and allot the remaining rehab tenements within a short period of time. 7. The Respondent Nos.1 to 6 herein took out Notice of Motion No.186/2007 on 30/03/2007 in Contempt Petition No.128/2006 praying for condonation of delay of 2 years and 5 months in filing the above Contempt Petition. The said Notice of Motion was taken out by the Respondent Nos.1-6 since the Appellant in his Affidavit in reply to the Contempt Petition had stated that the Contempt Petition of Respondent No.1-6 is barred by the law of limitation. :5: 8. In the above Notice of Motion No.721/2006, the learned Single Judge had directed the Appellant to file an undertaking that he would complete the remaining internal finishing work, plumbing, water and drainage lines of B Wing within an additional period of four months. The Appellant gave the abovementioned undertaking on 09/03/2007, and also gave an undertaking to file a Bank Guarantee of Rs.1 crore to carry out the said work. 9. Thereupon, the learned Single Judge, on 13/03/2007 had directed Notice of Motion No.721 of 2006 to be heard with Contempt Petition No.128/2006. The abovementioned Notice of Motion was placed along with Notice of Motion No.186/2006 for hearing. 10. The learned Single Judge, by his judgment and order dated 20/04/2007 allowed the above Notice of Motion No.186/2007, and condoned the delay of 2 years and 5 months in filing the Contempt Petition and issued a show cause notice to the Appellant as to why contempt action should not be taken against him. The present Appeal arises out of the aforesaid order. 11. Mr.Thorat, the learned Senior Counsel for the Appellant contended that there is an error law apparent on the face of the record in passing the order and that the learned Single Judge had failed to :6: exercise the jurisdiction vested in him. It is further submitted that the learned Single Judge has wrongly interpreted and applied the provisions of the Contempt of Courts Act and the Limitation Act, as well as the case law on the point, while passing the impugned order. Mr.Thorat, the learned Senior Counsel also contended that the learned Single Judge ought to have dismissed the Respondent’s Notice of Motion No.186/2007 for condonation of delay in filing Contempt Petition No.128/2007 for the following reasons; a) By virtue of the mandatory nature of Section 20 of the Contempt of Courts Act,1971, which requires the petition to be filed within one year from the date of cause of action, the Appellant’s Contempt Petition was clearly barred by the law of limitation. It must be noted that the bar of limitation does not allow the filing of an application for condonation of delay. b) Respondent Nos.1-6 have not given any particulars about limitation in the memo of their Contempt Petition. Further, the Respondent Nos.1-6 have not shown ‘sufficient cause’ within the meaning of Section 5 of the Limitation Act,1963 in their Affidavit in Support of Notice of Motion No.186/2007, nor :7: have they fully explained the cause for a delay of 2 years and 5 months in filing of the Contempt Petition. Therefore, the learned Single Judge has exceeded his jurisdiction in allowing Notice of Motion No.186/2007 and condoning the delay in filing the Contempt Petition. c) Moreover, it must be noted that Respondent No.2 has already accepted allotment of the Rehab tenements from the Appellant, has taken possession and been issued a Possession Receipt for the same. In the light of this fact, the Appellant contends that Respondent No.2 cannot file a Contempt Petition. d) Without prejudice to the above submission, the Appellant submits that he has complied with the Undertaking by allotting Rehab tenements to Respondent Nos.1-6 through allotment letters. Further, the issuance of Part Occupation Certificates by the S.R.A. and the application forms sent by the Appellant for the installation of an electric meter, indicate that there was no necessity to entertain the Contempt Petition and issue a Show Cause Notice. :8: e) The Appellant contends that the provisions for condonation of delay in Section 5 of the Limitation Act,1963, are not applicable to Contempt Petition. In any case, the learned Single Judge ought to have rejected the Contempt Petition, since it was not accompanied by an Application for condonation of delay. Since the Appellant raised the objection that the Contempt Petition was barred by limitation in his Affidavit in Reply, the Appellant submits that the learned Single Judge ought not to have entertained and granted the said Notice of Motion, condoning the delay. f) The Appellant contends that the learned Single Judge has committed an error in overlooking the contentions of the Appellant in his Affidavit in Reply to the Contempt Petition as well as his Affidavit in Reply to Notice of Motion No.186/207, besides failing to appreciate that there has been no wilful neglect on the part of the Appellant in committing a breach of his undertaking. The failure on the part of the Respondent Nos.1-6 to prove wilful breach by the Appellant, negates the necessity of entertaining the Contempt Petition and issuing a Show Cause Notice to the Appellant. In fact, the :9: Appellant contends that it is the respondent Nos.1-6, along with other slum dwellers who have been obstructing the Appellant from completing the remaining work. 12. From the above, the following points arise for consideration; a) Whether Notice of Motion No.186/2007 for condonation of delay in filing Contempt Petition No.128/2006 was maintainable in law; and as a corollary to the above, whether this Court can condone the delay in filing a Contempt Petition, in the light of the provisions of Section 20 of Contempt of Courts Act,1970? b) Whether Respondent Nos.1-6 have shown sufficient cause for the condonation of delay of 2 years and 5 months in filing the above Contempt Petition? c) Whether the provisions of Section 5 of the Limitation Act,1963 are applicable to Contempt Petitions? d) Whether it is a continuing wrong, and as such, there is no question of condonation of delay? :10: 13. The learned Senior Counsel appearing for the Appellant, Mr.Thorat submitted that the provisions of the Limitation Act,1963 are not attracted to the Petitions filed under the provisions of the Contempt of Courts Act, 1971, as this area is fully covered by the latter Act and rules framed by the High Court under the Act. The learned Senior Counsel also relied on the following cases in support of his arguments; a) Dineshbhai Dineshbhai Dineshbhai A.Parikh Vs.Kirpalu Co.Operative A.Parikh Vs.Kirpalu Co.Operative A.Parikh Vs.Kirpalu Co.Operative Housing Housing Housing Society, AIR 1980, Gujarat 194 Society, AIR 1980, Gujarat 194 Society, AIR 1980, Gujarat 194, wherein Gujarat High Court took the view that; i) Section 20 of the Contempt of Courts Act places an absolute fetter on the power of the Court to initiate proceedings for contempt after the expiry of 1 year from the day on which Contempt is alleged to have been committed. The contention advanced by the Counsel for the Petitioner, that once Contempt is committed, unless it is purged, it continues to be committed everyday is misconceived, as accepting such a view, would render Section 20 redundant. ii) Although in cases of Criminal Contempt the Advocate General or any other person with the consent of the Advocate General has been given a statutory right to make a motion to the Court by virtue of Section 15 of the Contempt of Courts Act,1971, for taking action against the contemnor, no such statutory right has been conferred upon any one in respect of civil contempt. Contempt proceedings before a Court, are proceedings between the contemnor and the Court and in the event that a person brings to the notice of the Court, a contemptuous act committed by any other person, he is merely an informant or a relator and he cannot be elevated to the status of a Petitioner or an Applicant who has the right to institute an action, and such information provided by the ‘informant’ falls outside the ambit of ‘application as envisaged under Section 29(2) of the Limitation Act.’ :11: iii) Section 20 of the Contempt of Courts Act,1971 does not provide a period of limitation but lays down a condition as a pre-requisite to the exercise of the Courts power under the said Act. As the aforementioned section does not contemplate institution of a petition or an application be a private individual, and merely contemplates initiation of the proceedings by the court, the question of condoning the delay does not arise since delay can be condoned only when a person who has a right to institute action has approached the Court and Section 20 of the Contempt of Courts Act does not contemplate such a situation. iv) In view of the above, Section 29(2) of the Limitation Act,1963 is not applicable in the present case, which repels the applicability of Section 5 of the Limitation Act, therefore the jurisdiction of this Court is barred under Section 20 of the Contempt of Courts Act. v) Even if an application for taking action under the Contempt of Courts Act is filed within a period of one year from the date of the alleged commission of contempt, but the Court has passed no order before the expiry of one year from the said date, the jurisdiction of the Court is automatically barred by Section 20 of the Contempt of Courts Act. vi) The Court also ultimately observed that the Contempt of Courts Act,1971, was a complete Code in itself. Relying on the judgment of the Hon’ble Supreme Court in Hukumdev Hukumdev Hukumdev Narain Yadav Vs.Lalit Narain Mishra Narain Yadav Vs.Lalit Narain Mishra Narain Yadav Vs.Lalit Narain Mishra AIR AIR AIR 1974 SC 480 1974 SC 480 1974 SC 480, wherein it is observed that the provisions of the Limitation Act are, therefore, necessarily excluded and its benefits cannot be called in aid to supplement the provisions of the Contempt of Courts Act, which is a special enactment. b) Devi Devi Devi Kishen Vs. Madan Lal Verma 2000 Kishen Vs. Madan Lal Verma 2000 Kishen Vs. Madan Lal Verma 2000 Cr.L.J.3619 Cr.L.J.3619 Cr.L.J.3619 (Rajasthan High Court.) (Rajasthan High Court.) (Rajasthan High Court.) i) The Petitioner had filed a Contempt Petition after six years. The Court relied upon Baradakanta Mishra Vs. J.Gatikrushna Baradakanta Mishra Vs. J.Gatikrushna Baradakanta Mishra Vs. J.Gatikrushna Misra Misra Misra AIR 1974 SC 2255 AIR 1974 SC 2255 AIR 1974 SC 2255 wherein the Hon’ble Supreme Court held that Section 5 of the :12: Limitation Act,1963 applied to filing of a suit, Appeal or Application within the prescribed period and not to initiation of proceedings and thus the Limitation Act and provisions thereof would not apply to contempt proceedings and the bar of Section 20 of the Contempt of Courts Act,1971 is absolute. It also relied upon Dinesh Bhai Vs.Kripalu Dinesh Bhai Vs.Kripalu Dinesh Bhai Vs.Kripalu Cooperative Cooperative Cooperative Housing Society Ltd. AIR 1980 Housing Society Ltd. AIR 1980 Housing Society Ltd. AIR 1980 Gujarat Gujarat Gujarat 194 194 194, wherein the Court had held that the Schedule in the Limitation Act does not apply to contempt proceedings and Section 20 of the Contempt of Courts Act fills up the lacunae. Therefore, in the present case, it was held that after the period prescribed by Section 20 lapses, the jurisdiction of the Court evaporates and the Court automatically loses jurisdiction. ii) The Court also explained that ‘initiation of proceedings’ has a different connotation. Initiation means application of mind by the Court and the formulation of an opinion that a prima facie case was made out. It the instant case, no continuing wrong had been committed and hence Section 20 would apply. Further, the Court, while acknowledging the ratio laid down in Anwar Khan Vs. State of Rajasthan Anwar Khan Vs. State of Rajasthan Anwar Khan Vs. State of Rajasthan (1999) (1999) (1999) 1 Raj LW 674, 1 Raj LW 674, 1 Raj LW 674, refused to convert the instant petition into a petition under Article 215 of the Constitution of India in light of the circumstances of the case as the Petitioner had not pursued the case diligently. c) Bank Bank Bank of Baroda Vs. Sadrudin Hasan Daya & Anr. of Baroda Vs. Sadrudin Hasan Daya & Anr. of Baroda Vs. Sadrudin Hasan Daya & Anr. (2004)1 (2004)1 (2004)1 SCC 360 SCC 360 SCC 360: On of the pleas taken in this case was that the Petition for initiating contempt proceedings was filed after more than one year. The Supreme Court, however, noted that the Application was filed within five months of obtaining knowledge of the undertaking. (The actual undertaking was given on 05/10/1999, while the Contempt Petition was filed in May,2001). The Court recognized that a person who is not a party to the suit or proceeding cannot obtain knowledge of the affidavits or documents filed therein. The Court held that the present proceedings could not be held to be barred by limitation in view of the law laid down in the Pallav Sheth Pallav Sheth Pallav Sheth case. The Court observed that the Pallav Sheth Pallav Sheth Pallav Sheth case laid down that the period of limitation can begin to run only from the date of knowledge. :13: d) A.K.Bajpai A.K.Bajpai A.K.Bajpai Vs. State of U.P.(2005) 10 SCC 188 Vs. State of U.P.(2005) 10 SCC 188 Vs. State of U.P.(2005) 10 SCC 188 A Division Bench of the Allahabad High Court had taken the view that the provisions of Section 20 of the Contempt Courts Act,1971, read with Rule 5 of Chapter 35-E of the Allahabad High Court Rules would apply and the Court would not issue notice if more than a year had elapsed from the alleged act of contempt and the contemnor could not avail of Section 14 of the Limitation Act,1963. The Hon’ble Supreme Court, however, stated that it was not expressing any view on the matter, with regard to the application of Section 14. e) Union Union Union of India and Ors. Vs. Subedar Davassy of India and Ors. Vs. Subedar Davassy of India and Ors. Vs. Subedar Davassy (2006) (2006) (2006) 1 SCC 613 and State of Orissa and Anr. Vs. 1 SCC 613 and State of Orissa and Anr. Vs. 1 SCC 613 and State of Orissa and Anr. Vs. Aswini Aswini Aswini Kumar Balliar Singh (2006) 6 SCC 759. Kumar Balliar Singh (2006) 6 SCC 759. Kumar Balliar Singh (2006) 6 SCC 759. . The Supreme Court held that the rightness or wrongness of a particular order cannot be urged in a contempt proceedings. f) Earth Earth Earth Designers and Developers Pvt.Ltd. Vs. Designers and Developers Pvt.Ltd. Vs. Designers and Developers Pvt.Ltd. Vs. M.K.Patil, M.K.Patil, M.K.Patil, Administrator General and Official Trustee Administrator General and Official Trustee Administrator General and Official Trustee of of of Maharasthra State (2006) (6) Bom.C.R.87. Maharasthra State (2006) (6) Bom.C.R.87. Maharasthra State (2006) (6) Bom.C.R.87. The learned Single Judge of our High Court, relying upon the Pallav Sheth’s Pallav Sheth’s Pallav Sheth’s case, held that contempt action was maintainable and the Contemnor was found guilty of contempt. g) Metal Metal Metal Box India Ltd. Box India Ltd. Box India Ltd. Vs. Vs. Vs. State State State of of of Maharashtra Maharashtra Maharashtra and Ors. 2004(3) Mh.L.J. and Ors. 2004(3) Mh.L.J. and Ors. 2004(3) Mh.L.J. The learned Single Judge of our High Court considered the question whether it could review its own order while exercising powers under the Contempt of Courts Act or Article 215. It answered in the negative relying upon the Pallav Pallav Pallav Sheth Sheth Sheth case and the Supreme Court Bar Supreme Court Bar Supreme Court Bar Association Association Association case case case. In the earlier case, the Hon’ble Supreme Court had observed that :14: despite the absence of express provisions restricting the powers of the Hon’ble Supreme Court to invoke Article 129 or 215; such power would still have to be exercised in consonance with the Limitation Act. The Court drew an analogy between the bar of limitation contained in Section 20 of the Contempt of Courts Act and the power of review of contempt proceedings. h) Mahendra Mahendra Mahendra Builders Vs. Parvez Ghaswala 2006 Builders Vs. Parvez Ghaswala 2006 Builders Vs. Parvez Ghaswala 2006 (4) (4) (4) Bom.C.R. 824 Bom.C.R. 824 Bom.C.R. 824 On the facts of the case, the learned Single Judge of the Bombay High Court observed that the Petitioner had not taken any initiative and had not made any reasonable investigation to discover the true position after acquiring knowledge of the creation of third party rights by the Respondent (it was alleged by the Petitioners that such act amounted to contempt), nor did the Petitioners file a contempt petition within a year. In the light of these facts, the Court held that the Pallav Pallav Pallav Sheth Sheth Sheth case could be of no avail to the Petitioner, particularly in view of para 47 of the said case. The Court believed that the Petitioner did not deserve the indulgence of the Court, nor did the act of contempt amount to a continuing wrong. Moreover, the Respondents had also cited para 41 of the Pallav Pallav Pallav Sheth Sheth Sheth case which stated that a litigant must act diligently and not sleep over his rights. i) High High High Court on its own motion Vs. Gopinath Court on its own motion Vs. Gopinath Court on its own motion Vs. Gopinath Mundhe Mundhe Mundhe and Ors.2007(1) Bom. C.R.(Cri.)563. and Ors.2007(1) Bom. C.R.(Cri.)563. and Ors.2007(1) Bom. C.R.(Cri.)563. The Division Bench of the Bombay High Court referred to a decision in the State of State of State of Maharashtra Maharashtra Maharashtra Vs. Vs. Vs. J.V.Patil (1974) 78 B.L.R.116 J.V.Patil (1974) 78 B.L.R.116 J.V.Patil (1974) 78 B.L.R.116 where it had been held that the date on which the matter is placed before the Division Bench of the High Court and the date on which the Rule is granted, is the date when contempt proceedings can be said to be initiated, not the date when reference is made by the subordinate court under Section 15(2). The Court also referred to the Manjit Singh Manjit Singh Manjit Singh case where the court had observed that if limitation were to run from the date when the act of criminal contempt was brought to the knowledge of the Court, then it would frustrate the very purpose of the legislature in providing for a period of limitation under Section 20 of the Contempt of Courts Act. The :15: Court also applied the Pallav Sheth Pallav Sheth Pallav Sheth case, observing that suo motu contempt proceedings were also hit by limitation under Section 20. 14. The learned Senior Counsel for the Respondents, Mr.Madon, relied on the judgment of the Hon’ble Supreme Court in the case of Pallav Sheth Vs. Pallav Sheth Vs. Pallav Sheth Vs. Custodian Custodian Custodian and Ors. 2003(Supp) Bom.C.R. and Ors. 2003(Supp) Bom.C.R. and Ors. 2003(Supp) Bom.C.R. to further their argument that the provisions of Section 5 of the Limitation Act,1963 are applicable to a Petition under the Contempt of Courts Act,1971. The learned Senior Counsel submitted that the Hon’ble Supreme Court, in the Pallav Sheth Pallav Sheth Pallav Sheth case, affirmed the applicability of the provisions for condonation of delay contained in Section 5 of the Limitation Act,1963 to contempt Petitions. 15. A brief summary of the Pallav Sheth Pallav Sheth Pallav