.{1}. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.50 OF 2009 IN APPEAL FROM ORDER NO.473 OF 2007 WITH CIVIL APPLICATION NO.21 OF 2008 IN LETTERS PATENT APPEAL NO.50 OF 2009 1. Shri Kishin Naraindas Daryani, 2. Shri Purshottam Thakurdas Mulrajani, & 3. Shri Vijay Kotumal Butani. ..Appellants. Versus 1. Shri Pessumal Chimandas Valeja, 2. Shri Haresh Pessumal Valeja, 3. Shri Suresh Pessumal Valeja, 4. Smt.Poonam Inderlal Bulani, 5. Smt.Manju w/o. Lekhraj Gianamani, 6. Smt.Dipika Jagdish Someja, 7. M/s. V.P. Builders, & 8. Ulhasnagar Municipal Council/ Corporation. ..Respondents. .... Mr.J.S. Chandnani, Advocate for the appellants. Mr.J.M. Puranik, Advocate for respondent Nos.1 to 6. Mr.V.D. Patil, Advocate for respondent No.8. .... CORAM : J.N. PATEL AND CORAM : J.N. PATEL AND CORAM : J.N. PATEL AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATED : 27TH FEBRUARY, 2009. DATED : 27TH FEBRUARY, 2009. DATED : 27TH FEBRUARY, 2009. P.C.:- P.C.:- P.C.:- 1. Heard the learned Advocate for the appellants, the learned Advocate for respondent Nos.1 to 6 and the learned Advocate for respondent No.8. 2. This Letters Patent Appeal is directed against the order of the learned Single Judge dated 28th .{2}. July, 2007 passed in Appeal From Order. By the said order, the learned Single Judge confirmed the orders of the lower Court directing that the appellants be imprisoned in civil prison for a period of one month for deliberate breach of order of temporary injunction. 3. We are not inclined to interfere with the order of the learned Single Judge on two grounds i.e. this Letters Patent Appeal has been preferred against the order of the learned Single Judge in Appeal From Order. Thus, the L.P.A. would not be maintainable. Otherwise also, from the discussion below, it is seen that no case is made out for interference. 4. The first respondent is the original plaintiff who filed Regular Civil Suit No.189 of 1988 against the appellants and one other. The case of the respondent was that the appellants were constructing seven storey building known as Pali hill apartment in contravention of the relevant Development Control Regulations. In the said Suit, an application for temporary injunction was also filed by the first respondent. The said application was rejected by the trial Court. Hence, Misc.Civil Appeal No.207 of 1988 was preferred. By judgment and order dated 29th .{3}. October, 1988 the learned 5th Additional District Judge allowed the application for temporary injunction and the appellants were restrained from proceeding with the construction on the site of the Room Nos.197 to 201, Block Nos.A-33 and A-34 at Ulhasnagar, Taluka Ulhasnagar, District Thane. An injunction was granted restraining the appellants from extending the building horizontally and vertically till the disposal of the appeal. The appellants were also restrained from creating third party interests. The learned Additional District Judge also directed the appellants to file an affidavit setting out the status of construction as it existed on 30th October, 1988. 5. In compliance with the direction, affidavit came to be filed by the appellant No.1 on 2nd November, 1988. In the said affidavit, it is stated that "I and partners have noted the order. In the said order the Hon’ble Court has been pleased to direct us to file an affidavit and place on record the present position of the structure." Thereafter it was stated that the building was in two parts i.e. A and B. In the "B" portion brick work was done upto the 3rd floor and R.C.C. work was over on the 5th floor and on the "A" side 3 slabs were put and brick work on .{4}. the second floor was nearly completed. 6. The Additional District Judge appointed a Court Commissioner to visit the site on 15th November, 1988. In the report, it is clearly stated that on 15.11.1988 the construction of the building was going on and it was found that the labourers were working. Hence, an application (Exh.74) under Rule 2A Order XXXIX of the Code was made by respondent No.1 on 19th April, 1991. In the application, it was asserted that notwithstanding the order of temporary injunction, the appellants had proceeded with the construction and they completed six floors in each part of the building and construction of all the floors was complete in all respect. It was also asserted that after the date of the order dated 29th October, 1988 whereby temporary injunction was granted, the appellants entered into various agreements for sale of the flats in the building. In view of these facts, the respondent No.1 prayed for taking action against the appellants and the firm M/s.V.P. Builders of which the appellants were partners for committing gross breach of the temporary injunction. 7. In reply, the appellants stated that the firm .{5}. M/s. V.P. Builders had not developed the property and the appellants were not the partners of M/s. V.P. Builders but the appellants were partners of M/s. Perfect Builders and the said firm has developed the property. In the reply, it was categorically stated that the construction was carried out as per the approved plan of construction and there was no breach on their part. 8. Thereafter the matter came to be transferred to the newly established Court of the Additional District Judge, Kalyan. After transfer of the matter to Kalyan on 11th October, 2004 the learned Additional District Judge directed the respondent Corporation to submit affidavit of factual aspects of the construction carried out on the suit property. Pursuant to the said order affidavit came to be filed by the Corporation wherein it was stated that the building consisting of basement plus ground floor and six upper floors is constructed in violation and in contravention of building permission. It was stated that about 48 flats were constructed in excess of available Floor Space Index (FSI) and no completion certificate or occupation certificate is obtained either from the respondent No.8-Corporation or from the erstwhile Municipal Council. It is an admitted .{6}. position that when the application at Exh.74 was heard, the appellants and respondent No.7 were absent. After considering the entire material on record, the learned Additional District Judge found that there was a gross breach of order granting temporary injunction committed by the appellants by carrying out the construction and by creating third party interests in respect of the flats in building. Hence, the application at Exh.74 was allowed by order dated 17th January, 2005. A direction was issued by the learned 3rd Adhoc Additional District Judge, Kalyan that the appellants shall be detained in civil prison for a period of one month and an order of attachment of property of the appellants was also passed. The learned Judge also issued a direction to the Municipal Corporation to demolish the construction in the building and to submit a compliance report. 9. Being aggrieved by the said order, the appellants preferred Appeal From Order No.172 of 1995 in this Court. The said Appeal came to be disposed of by order dated 9th March, 2005. While disposing of the said matter, this Court observed that : "... There is no challenge in this .{7}. Appeal From Order to the fact that after the order of injunction was passed construction of the building has been completed. Affidavit filed on behalf of respondent No.8-Corporation discloses that the construction of the building of basement plus ground and six upper floors has been completed in gross violation of the rules relating to F.S.I. as well as in violation of the development plan. It is stated that in the original sanctioned plan provision was made only for eight flats having total F.S.I. of 495.25 sq.mtr. In the sanctioned plan there is no provision for construction of third and upper floors and for construction of 12 flats on each floor. It is stated that 48 flats have been constructed in violation of rules relating to F.S.I.. The affidavit notes that the substantial part of the building is completely unauthorized and that no occupation or completion certificate has been issued." . In the said order dated 9th March, 2005, this .{8}. Court held that the material on record clearly establishes that the construction of the building was continued and completed after the order of injunction was passed. This Court also held that after the order of injunction was passed, the appellants executed various agreements for sale in respect of the flats in the building and the purchasers of 48 flats were put in possession after the order of temporary injunction was passed. Thus, this Court held that there was breach of order but the question as to whether it was deliberate or wilful was to be decided by the Additional District Judge. Hence, this Court set-aside the order of the Additional District Judge dated 17.1.2005 below Exh.74 and remanded the matter back for the limited purpose of considering the contention of the appellants that the breach of the order passed by the District Court on their part was neither deliberate nor wilful. The appellants were permitted to lead evidence on the said aspect and also on the affidavit of the Deputy Commissioner of the Kalyan Municipal Corporation filed in this Court. This Court set aside the direction given to the Kalyan Municipal Corporation to demolish the structures. The amount of Rs.05,00,000/- deposited by the appellants was ordered to be transferred to the Court of the .{9}. Additional District Judge at Kalyan and the Court was directed to pass the appropriate order thereon. 10. After the matter was remanded back, the learned 3rd Adhoc Additional District Judge by order dated 30th December, 2005 directed the detention of the appellants in Civil Prison for a period of one month. An order of attachment of the property of the appellants was also passed. Being aggrieved thereby, the appellants again approached this Court and preferred Appeal From Order No.104 of 2006. The said Appeal From Order was disposed of on 10th August, 2006. The Court observed that earlier order of remand was not properly complied with. Thereafter the Court observed that while confirming the finding of guilt recorded by the Court below, the impugned order is set aside and parties are relegated before the lower Court to give opportunity to the appellants to be heard on the point of sentence and the Court shall then proceed to record reasons for the nature of order that it proposes to pass. 11. After second order of remand was passed by this Court, the learned Adhoc Additional District Judge by order dated 26th September, 2006 disposed of the application at Exh.74 by directing the detention of .{10}. the appellants in Civil prison and also by ordering attachment of the disputed building as well as other immovable properties belonging to the appellants. Review of the said judgment also came to be rejected. Hence, the appellants challenged the said order by filing Appeal From Order. The learned Single Judge by order dated 20th July, 2007 partly allowed the Appeal From Order. The order of attachment of the disputed building and all other immovable properties of the appellants was set-aside. However, the order of detention of the appellants in civil prison for one month came to be confirmed. As far as the amount of Rs.5,00,000/- is concerned, this Court directed that appropriate order shall be passed thereon at the time of final disposal of the Misc.Civil Application No.1 of 1996. Being aggrieved by the confirmation of the order whereby the appellants were directed to be imprisoned in Civil prison for a period of one month, this Letters Patent Appeal has been preferred. This Letters Patent Appeal has been preferred only on the limited ground i.e. as to whether the order sending the appellants to civil prison for a period of one month deserves to be set aside. 12. When the appellants earlier preferred appeal From Order No.172 of 1995, this Court categorically .{11}. held that there was breach of the order of injunction committed by the appellants. The remand was for limited purpose i.e. for considering the question whether the breach was deliberate. Thereafter when the appellants preferred Appeal From Order No.104 of 2006 this Court confirmed the finding of guilt and the remand was restricted only to determination of punishment. The learned Counsel appearing for the appellants submitted that the appellants have already deposited Rs.5,00,000/- in Court and there is no order of refund of the said amount. Hence, he submitted that deposit of the amount of Rs.5,00,000/- is a strong mitigating circumstance in favour of the appellants. He submitted that in view of the deposit of the said amount, the appellants should not have been punished by sending them to civil prison. 13. As far as the submissions are concerned, it is seen that 48 flats have been unauthorizedly constructed, hence deposit of Rs.5,00,000/- cannot be in any way be said to be sufficient to provide any sort of reasonable compensation to the persons who purchased these 48 flats. When the learned Single Judge heard the matter, he adjourned the hearing of the appeal to enable the appellants to make a statement whether they are in a position to .{12}. compensate each and every flat purchaser by depositing the requisite amount in the Court. A suggestion was given that the appellants should deposit the market value of 48 flats as of the year 1991 when application at Exhibit 74 was filed so that in case the construction of the building is not regularized as per the ordinance, a reasonable amount can be paid to the flat purchasers. At that time, the learned Advocate for the appellants stated that the appellants are willing to deposit a further amount of Rs.3,00,000/-. The learned Single Judge was right in observing that the earlier amount of Rs.5,00,000/- plus the amount of Rs.3,00,000/- would not be sufficient to compensate even 4 or 5 flat purchasers. Hence, we find no merit in this submission. 14. Thereafter the learned Advocate for the appellants submitted that the State Government has now promulgated an ordinance which provides for regularisation of unauthorised structures in the city of Ulhasnagar. He submitted that in view of the said legislation now the structure is bound to be regularized and there will be no prejudice to the flat purchasers. However, here, the issue is not only of prejudice but the main issue is that of .{13}. flagrant and blatant breach of the order of the Court. 15. Moreover, while granting temporary injunction in the order dated 29th October, 1988, the District Court inter-alia observed as under : "28. ......If injunction is not issued the respondents would proceed with the construction of buildings in question. They would ultimately hand over possession of concerned blocks to purchasers and purchasers would occupy them. Thereafter, it would be extremely difficult for the plaintiff-appellant to get status-quo ante restored. The damage done to environment may not be undone atleast for a lifetime during which the parties would be fighting through various courts. At this stage, the appellants have apparently established an arguable case against the order of the Trial Judge. If injunction is refused, the appeal itself may become infructuous by completion of building in question and their occupation by purchasers...." .{14}. 16. From the above order, it is seen that the appellants were specifically restrained from proceeding with the construction of building on the suit property by extending it either horizontally or vertically till the decision of the Appeal. The appellants were also restrained from creating any third party interests in respect of the construction. It is pertinent to note that the appellants were directed by the District Court to file an affidavit setting out the stage of construction as it existed on 30th October, 1988. Accordingly, the second appellant filed an affidavit on 2nd November, 1988. It is pertinent to note that the second appellant has filed the said affidavit on behalf of himself and other appellants. In the said affidavit the second appellant stated that he himself and the partners of the respondent No.7 i.e. appellant Nos.1 & 3 have noted the order of the Court. However, as stated earlier the Court Commissioner in his report stated that when he visited the property on 15th November, 1988 he observed that at the time of his visit the construction work was in progress. Infact he recorded that he was obstructed by the appellants when he visited the premises. The appellants in their reply to the Exhibit 74 contended that they were not partners of M/s. V.P. Builders and hence .{15}. any prohibitory order against M/s. V. P. Builders (respondent No.7) was not binding on them. It was stated that the appellants were partners of M/s. Perfect Builders and the construction was carried out by M/s. Perfect Builders. In the said affidavit, categorical stand was taken that the construction was carried out in accordance with the sanctioned plan. However, in the affidavit-in-reply dated 2nd November, 1988 filed by the appellants, it was stated that they have noted the order i.e. granting temporary injunction. It is also stated therein that the Court has allowed the injunction application partially and restrained the appellants from making any additional construction on the said property. Thus, the appellants were aware that injunction was also granted against them from carrying out any further construction. 17. It may be stated here that breach of the order dated 29th October, 1988 is not restricted to the extent of continuing with the construction, but, after the work was completed third party interest was created and the flat purchasers have been placed in possession of the flats. It is not at all the case of the appellants that when order of injunction was passed in the year 1988 they had already created .{16}. third party interests in respect of the flats. Thus, the breach of injunction extends even to creation of third party interests. 18. It may also be stated here that affidavit of the Deputy Commissioner of the Municipal Corporation shows that the sanctioned plan was only for 8 flats, however, 48 flats have been unauthorizedly constructed by the appellants. These 48 flats were unauthorizedly constructed without permission and in breach of the order of the prohibitory injunction and thereafter third party interest in respect of these flats were created. 19. At no stage the appellants challenged the order of injunction and infact in compliance with the order granting temporary injunction, the second appellant on behalf of all filed an affidavit on 2nd November, 1988 before the District Court. Therefore, this is not a case of a simple or a trifle breach of the order. This is a case of a flagrant and a gross violation of order dated 29th October, 1988 of temporary injunction passed by the District Court. The magnitude of the breach is reflected from the fact that 48 flats were constructed unauthorizedly and illegally and after creating third party .{17}. interests in these flats, the purchasers were put in possession. 20. Considering the fact that this is a case of deliberate, wilful and flagrant breach of order of injunction passed by the Court below, whether the building may be regularized in future or not is altogether a different question. Here is a case where the appellants have shown complete disregard to the order of injunction passed by the Court and committed a flagrant breach of the order, the magnitude of which is indicated in the earlier part of the judgment. By no stretch of imagination argument of the appellants that the breach is neither deliberate nor wilful can be accepted. The appellants cannot purge the contempt by demolishing the building as the building is already occupied by at least 48 flat purchasers. Considering the magnitude of the breach, it is obvious that for upholding the dignity of the Court of law, an order of detention in civil prison has been passed. Such litigants must be penalised. Not only they have violated the order of injunction but they have earned a substantial amount by sale of large number of flats which were constructed after the order of injunction was passed. Infact, law permits detention upto three months. However, the Court below has taken a lenient .{18}. view and has directed imprisonment only for one month. We find no error or illegality in the order of the learned Single Judge whereby he has confirmed the order of the District Judge whereby the appellants were directed to be imprisoned in the Civil prison for a period of one month. 21. Letters Patent Appeal is dismissed. Civil Application also stands dismissed. [J.N.PATEL,J.] [J.N.PATEL,J.] [J.N.PATEL,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]