1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1089 OF 2009 IN CONTEMPT PETITION NO.610 OF 2009 IN NOTICE OF MOTION NO.476 OF 2009 IN L.C. SUIT NO.1062 OF 2009 Municipal Corporation of .... Appellants/ Greater Mumbai Contemnors Vs. Nanu Gunwant Mithari .... Respondent Shri Anil Singh with Ms K.K. Soraan for the Appellants/Contemnors. S/Shri P.M. Havnur i/b D.M. Shah for the Respondent. WITH APPEAL FROM ORDER NO.395 OF 2010 IN CONTEMPT PETITION NO.610 OF 2009 Nanu Gunwant Mithari .... Appellant Vs. Municipal Corporation of .... Respondents/ Greater Mumbai & Ors. Contemnors S/Shri P.M. Havnur i/b D.M. Shah for the Appellant. Shri Anil Singh with Ms K.K. Soraan for the Respondents. 2 CORAM: R.C. CHAVAN, J. DATED: JUNE 15, 2010 P.C: 1. Both these appeals by the parties to the Contempt Notice of Motion No.610 of 2009 in L.C. Suit No.1062 of 2009 question the order passed by the learned Judge of the City Civil Court, Mumbai disposing of the said motion. 2. Facts which are material for deciding these appeals are as under: The Mumbai Municipal Corporation (for short, "the Corporation") had issued a notice to the occupant of the structure of the plaintiff in L.C. Suit No.1062 of 2009 under Section 351 of the Mumbai Municipal Corporation Act, 1888. This notice, dated 16-6-1987, was issued on 16-8-1987. Against this notice, L.C. Suit No.3712 of 1987 was filed before the City Civil Court. This was disposed of on 14-6-2006 directing the Assistant Municipal Commissioner to decide the question of demolishing the structure in pursuance of the reply which may have been filed to the notice under Section 351. Accordingly, the Assistant Commissioner 3 passed an order on 7-5-2009. This order was questioned by filing L.C. Suit No.1062 of 2009. In the said suit, notice of motion was taken out on which the following interim order was passed on 20-5-2009. "The defendants are in possession of the acknowledgment passed by plaintiff's advocate all those facts, I find that the reply of defn/BMC is very essential so, also the documents of defendants are necessary. Looking to the peculiar facts of case, the suit structure needs to be protected till the date of filing of reply to N/M. The defendants shall not demolish the suit structure till the date of filing of reply. Leave granted N/M be registered and made returnable on next date. Matter adjd. to 10/06/09 for reply on N/M." The Corporation does not claim that it has yet filed reply to the notice of motion. 3. According to the plaintiff, when this order was passed, one Kale, Sub-Engineer of the Corporation was present in the Court. The plaintiff also caused a copy of this order to be served at the Ward Office on 21-5-2009. On 4 12-6-2009, the demolition squad led by Assistant Engineer Salve and Sub-Engineer Kale demolished the plaintiff's shop. The plaintiff claims that at that time he had again shown to the two officers the certified copy of the order passed by the learned Judge of the City Civil Court on 20-5-2009. Therefore, the plaintiff took out a motion being Notice of Motion No.610 of 2009 seeking to have Salve and Kale punished under Order 39, Rule 2(a) for wilfully disobeying the orders of the Court and committing contempt thereof. 4. Both Salve and Kale also filed their replies to this notice of motion stating that they had acted under the orders of the superiors and that there was no intention on their part to disobey the order passed by the City Civil Court. 5. The learned Judge considered the material before him and held that there was no difficulty to conclude that the contempt notice of motion was fit to be partly allowed. He held that there was no clear or clinching evidence to establish that Salve and Kale deliberately and wilfully disobeyed the order of injunction, yet he directed the Corporation to hold an 5 inquiry and to fix responsibility on the respondents for the action of demolition. He also directed Salve and Kale to restore the shop, which was demolished, to the original position at their own cost. He directed the Corporation to recover the cost of reconstruction from Salve and Kale, who were held personally and individually responsible for the action of demolition. Aggrieved thereby, both the parties have preferred these appeals. 6. I have heard both the learned counsel for the plaintiff as well as for the contemnors and the Corporation. The learned counsel for the plaintiff submitted that there was clear breach of the order of injunction passed by the City Civil Court which had been served at the Ward Office and was also in the personal knowledge of Kale. He submitted that his client had also acquainted the two officers of the orders passed when the demolition actually took place. Therefore, according to him, the learned Judge erred in coming to the conclusion that there was no clear or clinching evidence to establish that Salve and Kale had deliberately and wilfully disobeyed the order of injunction. 6 7. The learned counsel for the Corporation and the contemnors, on the other hand, submitted that after having held that there was no clear or clinching evidence to show that Salve and Kale had wilfully disobeyed the order of injunction, there was no question of holding them personally responsible for the action of demolition or ordering them to reconstruct the shop at their own cost. He further submitted that such reconstruction could not be ordered till it was shown that the structure was legal and for this purpose placed reliance on a decision of this Court in the case of Shriram Ramphal Patel v. Municipal Corporation for Greater Bombay & Ors., reported in 2006 (2) Bom.C.R. 631. 8. I have carefully considered the rival contentions. First, there can be no doubt that Kale was present in the Court when the order was passed and, therefore, could not have denied that he was not aware of the order since this fact, contained in para 2 of the affidavit of the plaintiff, has not been denied by Kale. In any case, it is not disputed by the Corporation that the order was served at the Ward Office. If the order was served at the Ward Office, it is not clear as to what 7 provoked the Ward Office to allow the demolition squad to proceed with the demolition on 12-6-2009, without even bothering to file a reply to the notice of motion which was pending before the Court. The contention of the plaintiff that he had also showed to the contemnors the certified copy of the order passed when they had come to demolish the structure has been denied by the respondents. It is the plaintiff's contention that the order was shown to the officers by Chandrakant Shetty who himself has filed the affidavit. It is hard to believe that the plaintiff who had secured an order from the Court would not bother to show the order to the squad which had come to demolish the structure, when the plaintiff had taken care to take photographs of the demolition. Therefore, may be, the two officers of the Corporation went for demolition in pursuance to the order passed by their superior, but if at the time of demolition they had been shown the order, which is more probable, they should have restrained their hand. In any case, it was not for the Corporation or the Ward Office to proceed with the demolition after being made aware of the order of the City Civil Court restraining them from carrying out the demolition. 8 9. Even so, since the action for disobedience of the order of the Court takes the character of a criminal proceedings, since the person found guilty is to be visited with a punishment of imprisonment or attachment of his properties, if the learned Judge applied strict standards of proof and observed that there was no clear or clinching evidence, this Court need not interfere in that finding. Even after the learned Judge held that the respondents Salve and Kale are guilty of disobeying the order of the Court, it is not necessary that they must be sentenced to imprisonment or that their properties must be attached. Punishment of being made to foot the bill of reconstruction plus appropriate disciplinary proceedings, which the Corporation would undoubtedly initiate, should be sufficient and this is not a matter in which this Court ought to interfere in exercise of appellate jurisdiction, since the order passed cannot be said to be improper or perverse. At the cost of repetition, it has to be clarified that exercise of jurisdiction under Order 39, Rule 2(a) of the Civil Procedure Code or contempt proceedings is akin to a criminal prosecution and therefore unless it is shown that orders passed by the trial 9 Court are perverse, the Appellate Court would be slow to interfere with such orders. 10. This takes me to the question as to whether the respondent-Corporation should not have been ordered to restore the structure to its original position. Reliance by the learned counsel for the Corporation on the judgment of this Court in Shriram Ramphal Patel's case (supra) is misplaced. In that case, a writ of mandamus was sought and in that context the Court held that apart from mere existence of the structure, it was also necessary for the party complaining about illegal demolition of the structure to reveal the fact regarding the legality of the structure as well as ownership or lawful occupation thereof. These observations would not be useful in the present case because here there has been a specific order of the City Civil Court restraining the Corporation from demolishing the structure. All that the learned Judge has done is that he has passed an order, ordering restitution which is permissible under Section 144 of the C.P.C.. Therefore, even on this count, the impugned order does not call for interference. 11. The observations of the learned Judge 10 in para 21 of the judgment may appear contradictory but the essence of what the learned Judge wants to convey is that the plaintiff did not prove to the hilt the charge that Salve and Kale wilfully disobeyed the order passed by the Court and therefore did not proceed to punish them. At the same time, he noticed that there was demolition carried out by flouting the order of the Court and therefore directed restitution. Since the question as to whether Salve and Kale were responsible for such demolition could be gone into departmentally by the Corporation where the standards of proof are different, the learned Judge did not err in directing the Corporation to decide as to whether Salve and Kale should foot the bill of reconstruction. Viewed thus, there is no error in the impugned order. Both the appeals, therefore, are dismissed. 12. The learned counsel for the Corporation states that there was an interim order in force and in order to enable the Corporation to carry the matter forward, the interim order be continued for a period of six weeks. The interim order is continued for a period of six weeks. 11 13. The learned counsel for the Corporation also states that the Corporation would contest the motion which is pending before the Court by filing a reply within a week. The learned Judge shall endeavour to dispose of the motion as early as possible and preferably within a period of one month. Should the motion be rejected, the Corporation would be at liberty to apply before the trial Judge for appropriate direction about reconstruction. (R.C. CHAVAN, J.)