1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 43 OF 2009 IN APPEAL NO. 274 OF 1999 IN WRIT PETITION NO. 2278 OF 1998 Aarti Ashok Malekar .. Petitioner. V/s. The State of Maharashtra and Ors. .. Respondents. --- Mr. Prabhakar R. Naidu for the Petitioner. Mr. Pradee Jadhav, AGP for Respondent Nos. 1,2 & 8. Mr. Pankaj Kowli i/by M/s. Patil Gangarkar & Co. for Respondent Nos. 4 & 5. Ms. Sujata V. Phansekar for Respondent No.6. --- CORAM : DR. D. Y. CHANDRACHUD, J. DATED : 16TH JULY, 2009 P.C. : 1. The contempt that is alleged in this proceeding is of a Judgment of the Division Bench of this Court dated 21st April, 2 2008. 2. The Maharashtra Housing and Area Development Authority (MHADA) had held that the Petitioner was not eligible for membership in the Higher Income Group category in Pant Nagar Shri Vinayak Co-operative Housing Society Ltd.. The Petitioner was aggrieved by a communication dated 25th March, 1996. The Petition filed by the Petitioner to this proceeding was rejected by a learned single Judge of this Court on 11th January, 1999. In Appeal, the Division Bench by a Judgment dated 4th May, 1999, while allowing the Appeal, set aside the impugned communication and directed MHADA to allow the Application of the Petitioner and to place her in the Higher Income Group category of the Co- operative Housing Society in question. The Judgment of the Division Bench was recalled in a Notice of Motion taken out by the 6th Respondent on the ground that he had not been duly served. Thereafter, the Appeal was re-heard by a Division Bench of this Court and on 21st April, 2008, the Appeal was 3 allowed with the following directions : “The impugned order as well as the communication by the MHADA refusing the application of the appellant are hereby set aside and the respondents are directed to place the appellant in the Higher Income Group in Pant Nagar Shri Vinayak Co-operative Housing Society Ltd.”. 3. After the First Judgment of the Division Bench dated 4th May, 1999 a communication was issued by the Deputy Chief Officer of MHADA to the Petitioner on 16th December, 1999, stating that in view of the Judgment, directions had been issued to the Co-operative Society to include the Petitioner in the Higher Income Group category. The Petitioner who had instituted a Contempt Petition for non-compliance of the Order passed by the Division Bench on 4th May, 1999, withdrew the Contempt Petition (Contempt Petition No. 155/1999) on 23rd November, 2000 on the ground that the Order of the Division Bench had been complied with. 4 4. The occasion for the institution of the fresh Contempt Proceedings before the Court is that according to the Petitioner, the Co-operative Society in question was, as a consequence of the Judgment dated 21st April,2008 liable to remove the Sixth Respondent, who has been allotted a residential Flat bearing Flat No. 404 in building No.1 in the Co-operative Society. At the hearing, the learned counsel appearing on behalf of the Petitioner urged that the Co- operative Society was obliged to cancel the allotment made to the Sixth Respondent and to allot that residential Flat to the Petitioner. On the other hand it was urged on behalf of the Respondents that as a matter of fact, the Division Bench did not pass any direction, cancelling the allotment made to the Sixth Respondent and for directing that possession should be taken from the Sixth Respondent and be handed over to the Petitioner. 5. While assessing the question as to whether there has been any breach of the Judgment of the Division Bench, it 5 would be necessary to note that by its Judgment dated 4th May, 1999 the Division Bench of this Court had allowed the Appeal preferred by the Petitioner against the dismissal of the writ petition by the learned single Judge in the following terms : “For the aforesaid reasons, we allow the Appeal set aside the impugned communication and direct MHADA to allow the application of the Petitioner and place her in the Higher Income Group in Pant Nagar Shri Vinayak Co-operative Housing Society Ltd.,” 6. The Petitioner had filed a Contempt Petition before this Court but on 23rd November, 2000 the Contempt Petition came to be dismissed as not pressed in view of the statement made on behalf of the Petitioner in the following terms : “The learned counsel for the petitioner states that the order of the Division Bench dated 4th May, 1999 has been complied with and as such the learned counsel for the petitioner does not wish to press this contempt petition. The Contempt Petition stands dismissed.” 6 7. Now the compliance which was effected in pursuance of the order of the Division Bench dated 4th May, 1999 was the issuance of a letter by the MHADA on 16th December, 1999, informing the Petitioner that the Co-operative Society had been directed to place the Petitioner in the Higher Income Group category. The Judgment of the Division Bench dated 4th May, 1999 was recalled and when the Appeal was re-heard, a similar direction was issued by the Judgment of the Division Bench dated 21st April, 2008. The communication of MHADA, rejecting the Application of the Petitioner and the Judgment of the learned single Judge were set aside and the Respondents were directed to place the Petitioner in the Higher Income Group category in the Co-operative Society. During the course of the hearing of these proceedings, the papers and proceedings of the writ petition were produced. The prayers that were sought by the Petitioner before the learned single Judge in the writ petition included : (i) A prayer for cancellation of the letter of allotment issued to the 6th Respondent; (ii) A prayer for the issuance of a mandamus to 7 the Deputy Chief Executive Officer of MHADA and to the Office bearers of the Co-operative Society to issue a letter of allotment and possession of Flat No. 404 in building No. 1 in favour of the Petitioner. The Judgment of the Division Bench dated 21st April, 2008, which sets aside the dismissal of the Petition by the learned single Judge did not grant the relief that was sought for cancelling the allotment made in favour of the Sixth Respondent and for the issuance of an allotment to the Petitioner in respect of Flat No. 404 together with possession of the said Flat. Counsel appearing on behalf of the Petitioner submitted that this direction is implicit in the Judgment of the Division Bench which allowed the appeal. This submission cannot be accepted, particularly in the exercise of the contempt jurisdiction. A direction for placing the Petitioner in the Higher Income Group category is one thing, while the cancellation of the allotment made to the Sixth Respondent, together with the resumption of possession of Flat No. 404 from the Sixth Respondent and the handing over of possession to the Petitioner is a completely 8 different issue. Evidently, the Division Bench in its Judgment dated 21st April, 2008 did not issue any direction in regard to the cancellation of the allotment made to the Sixth Respondent; for resumption of possession from the Sixth Respondent and for handing over of possession together with a letter of allotment for Flat No. 404 to the Petitioner. In the absence of such a direction, it would be improper to hold that either MHADA or the Co-operative Society are in the breach of the directions issued by the Division Bench. There is no dispute about the position that following the Judgment of the Division Bench the Petitioner has been recognised as falling in the Higher Income Group category. Counsel appearing on behalf of the Co-operative Society had sought an adjournment, at one stage, to seek instructions whether alternative premises are available, but he has stated on instructions that no premises in the Higher Income Group category are available for allotment since allotments have been completed and possession of Flats has been handed over. An additional factor which must weigh with the Court is the circumstance that the 9 operative direction contained in the Judgment dated 4th May, 1999, which was recalled is pari materia with the directions contained in the subsequent Judgment dated 21st April, 2008 of the Division Bench, which holds field. Evidently, the Petitioner had informed this Court on 23rd November, 2000, in the earlier round of the contempt proceedings, that the Order of the Division Bench dated 4th May, 1999 had been complied with. Hence, looked at from any perspective it is not possible for this Court to hold that there has been breach of the directions issued by the Division Bench by the Respondents. 8. The contempt petition shall accordingly stand dismissed. (DR. D.Y. CHANDRACHUD, J.) .....