35 cp 262.09.doc 1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 262 OF 2009 Ramsanjeevan Muralidhar Dubey ... Petitioner Vs. The Municipal Commissioner, Mumbai Municipal & Anr. . ... Respondents Mr. S.S.Redekar for Petitioner. Mr. M.M.Malvankar for Respondent nos.1 and 2/BMC. CORAM : J.H. BHATIA, J. DATE : 9th September, 2010. P. C. 1 Heard the learned counsel for parties. 2 According to the Petitioner, he had a stall ad-measuring 18’ x 5’ situated near Uday Theater Road No.5, Nityanand Nagar, Ghatkopar (West), Mumbai where he was carrying on a pan shop in the name and style of ‘Ramsanjeevan Panbidi Shop & General Stores’. Height of the structure was 7 feet. According to him it is in existence since 1964. As the official staff of ‘N’ Ward had approached the place for demolition of the said structure without prior notice, the Petitioner had filed a Civil Suit 35 cp 262.09.doc 2 No.1022 of 2006 in City Civil Court at Bombay and took out Notice of Motion No.796 of 2006 seeking ad-interim relief against such demolition and ad-interim status quo was granted on 28.02.2006. On 07.02.2008 the suit itself was dismissed. The Petitioner thereafter preferred First Appeal No. 308 of 2009 before this court and filed Civil Application No.1155 of 2009 for interim relief against demolition. On 06.03.2009 this court directed to maintain status quo. According to the Petitioner on 31.03.2009, the Respondent no.2, who is Senior Inspector (Encroachment and Removal) in ‘N’ Ward of Bombay Municipal Corporation, removed a Bakda or wooden bench put within the said premises and thereby committed the breach of the order of this court. Certain photographs are filed before this court. He has also produced a copy of the letter dated 07.03.2009 addressed to the Ward Officer ‘N’ Ward informing that the court had passed the order to maintain status quo. 3 The Respondent no.2 has filed his affidavit in reply and stated in paragraph 4 that on 31.03.2009 a mass demolition programme was arranged for removal of unauthorized hawkers as well as for removal of unauthorized stalls situated in Nityanand Nagar, Road No.5, Near Uday Theater. At that time, the officers of the Corporation were inspecting and verifying documents including the licences given by the Corporation. On 35 cp 262.09.doc 3 enquiry the Petitioner did not produce any document or any order from the court to maintain the status quo. The stall of the Petitioner was unauthorizedly constructed without obtaining any permission from the Corporation. Therefore, a Bakda or bench kept inside the stall was removed but the stall was not removed. In paragraph 2 of the affidavit, he also tendered unconditional and unqualified apology if this court comes to the conclusion that he had committed any contempt of court. 4 It appear that the first Appeal No.308 of 2009 filed by the Petitioner has not come up even for admission though ad-interim relief of status quo was granted to him on 06.03.2009. Admittedly, the structure of the Petitioner is on the public road, causing obstruction to the public. Even though the Petitioner has produced the copy of the letter addressed by him to Ward Officer of the ‘N’ Ward, it does not show that the copy of the High Court order was also sent alongwith this letter. The Respondent no.2 in his affidavit has clearly stated that at the time of removal of Bakda or bench an enquiry was made and the Petitioner could not produce any document showing the license or any order from the court. In view of the circumstances, possibility cannot be ruled out that the Respondent no.2 was not even aware about the order of the court when he removed that Bakda or bench. Intention of removing the Bakda or bench appears to 35 cp 262.09.doc 4 prevent the Petitioner from carrying on the business in that unauthorized structure on the public road. The Officers of the Municipal Corporation were discharging their duties for removal of encroachment in the public interest and therefore, it appears that it was their bonafide act. Taking into consideration, it is difficult to come to the conclusion that the intention of the Respondent no.2 was to commit the contempt of the court or to disobey the court order. 5 Therefore, I do not find it necessary to take any action for contempt. In the result, the Contempt Petition stands dismissed. (J. H. BHATIA, J.)