1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 404 OF 2006 CONTEMPT PETITION NO. 404 OF 2006 CONTEMPT PETITION NO. 404 OF 2006 WITH CONTEMPT PETITION NO. 131 OF 2007 CONTEMPT PETITION NO. 131 OF 2007 CONTEMPT PETITION NO. 131 OF 2007 CONTEMPT PETITION NO. 404 OF 2006 CONTEMPT PETITION NO. 404 OF 2006 CONTEMPT PETITION NO. 404 OF 2006 M/s. Padmavati N. Group ) a Proprietory concern, through ) its Proprietor Mr. Navin K. Feta) Age 31 years, Occp. Business, ) having office at Dariyadarshan ) Hotel, Devka Beach, Nani Daman ) at Daman. ).. Petitioner Versus 1. State of Maharashtra ) a formal party ) 2. Smt. Richa Sharma ) holding the post of ) Dy Collector. having office ) at Moti Daman at Daman. ) 2 3. Dharmeshbhai Damania ) holding the post of ) Executive Magistrate & ) Mamlatdar at Daman, ) having office at Moti Daman ) at Daman. )..Respondents 2 & 3 contemnors Mr. Uday Warunjikar, Advocate, for the petitioner. Mr. Girish Kulkarni with Ms. Swati eshmukh & Ms. Sarika shah i/b. Mr. Shrishailya Deshmukh, Advocates, for respondent Nos. 1 & 2. CONTEMPT PETITION NO. 131 OF 2007 CONTEMPT PETITION NO. 131 OF 2007 CONTEMPT PETITION NO. 131 OF 2007 IN APPEAL FROM ORDER NO. 787 OF 2006 1. Union of India ) Through Hon’ble Administrator) U.T. Daman and Diu, ) Secretariat, at Moti Daman. ) 2. Dirctor of Tourism, ) Moti Daman, Daman. )..Petitioner Versus 3 1. Navin K. Feta, ) Proprietor of Padmavati N. ) Group, having his address ) at 131, Jyoti Farm, ) Marwad Group Gram Panchayat,) Devka Beach, ) Nani Daman - 396210 )..Respondent (Contemnor) Mr. Girish Kulkarni, Advocate, with Mr.Shrishailya Deshmukh with Ms. Swati Deshmukh & Ms. Sarika Shah i/b. Shrishailya Deshmukh, Advocates for the petitioner. Mr. Uday Warunjikar, Advocate, for the respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE : 27th June, 2008. DATE : 27th June, 2008. DATE : 27th June, 2008. JUDGMENT JUDGMENT JUDGMENT 1. These two cross Contempt Petitions filed by the opposite parties against each other may be disposed of by a common judgment as both the contempts are alleged to have been committed against the same order. 4 2. For the sake of convenience, the petitioner in Contempt Petition No.404 of 2006 and respondent/contemnor in Contempt Petition No.131 of 2007, may be addressed to as contractor. The petitioners in Contempt Petition No.131 of 2007 may be addressed to as the Administration. 3. To state in brief, on 31.8.1998, the Tourism Department of the Union Territory of Daman and Diu had entered into an agreement with the contractor whereunder a piece of land admeasuring 37,400 sq. ft. known as "Devka Garden" was given to the contractor for the purpose of management. This was the land out of Survey No.2/1 of Village Marwad. Besides this, a piece of land admeasuring 310 sq. mtrs. out of Survey No.71 at Jampore Beach was also given to him for running business. The Administration issued notice dated 25.9.2006 calling upon the contractor to show cause why the agreement dated 31.8.1998 granting lease of the land known as "Devka Garden" and "Jampore Beach" be not annulled because that agreement was entered into in violation of the provisions of the Forests Act. In view of this notice, the contractor filed Civil Suit No.37 of 2006 in respect of the land admeasuring 310 sq. mtrs. of Survey No.71 at Jampore Beach and he also filed 5 another Civil Suit No.36 of 2006 (renumbered as Special Civil Suit No.52 of 2006) pertaining to Devka Garden land. In both the suits, he sought perpetual injunction restraining the Administration from declaring the agreement dated 31.8.1998 as null and void and from terminating the said agreement. He also sought perpetual injunction restraining the Administration from taking any further action on the basis of the said notice. The application Exhibit 5 filed by the contractor for the purpose of temporary injunction came to be rejected by the Civil Judge, Senior Division, Daman, on 10.11.2006. Therefore, the contractor filed Appeal from Order No.787 of 2006. That Appeal was taken up by this Court on 15.11.2006 and this Court directed the parties to maintain status quo. The contractor filed Contempt Petition No.204 of 2006 on 21.11.2006 against the respondent Nos. 2 and 3 who were holding the post of Deputy Collector and Mamlatdar respectively under the Administration. According to the contractor, inspite of communication of the status quo order on the same day, as per the letter from his Advocate, Mr. Warunjikar, the respondents Nos. 2 and 3 therein committed contempt of the Court by forcibly evicting the tourists/visitors from Devka Garden at about 4.30 p.m. According to the contractor, he was performing pooja in the said Devka Garden at the relevant time when the 6 respondents Nos. 2 and 3 came there along with police force. One Arun Chouhan, Manager of the contractor invited the attention of the respondents Nos. 2 and 3 to the intimation regarding the status quo order passed by the High Court, but the respondents Nos. 2 and 3 refused to acknowledge the same and entered into the Devka Garden and started forcibly evicting the tourists and visitors. Four glass panes of the window of the cabin of the contractor were broken in that incident. Therefore, according to him, the respondent Nos. 2 and 3 have committed a willful and intentional breach of the order and they are liable to be punished for the contempt of the Court. 4. The Administration also filed Contempt Petition No.131 of 2007 against the contractor Navin K. Feta. It is contended in this petition that after rejection of the application Exhibit 5 filed by the contractor in the Special Civil Suit No.52 of 2006 on 10.11.2006, the Administration had to put the seal and to take possession The process for taking possession was commenced in the morning of 15.11.2006 and it was completed by 4.00 p.m. on the same day. The main gate of the said Devka Garden was removed and several other stalls, cabins, etc. were sealed. The panchnama about the same was prepared. On 15.11.2006, this Court had 7 passed the order to maintain status quo. A fax copy of the letter from Mr. Warunjikar, the learned counsel for the appellant was handed over to the Deputy Secretary (Revenue) at 4.30 p.m. showing that the status quo order was passed. As Devka Garden was already sealed and possession was taken by the Administration, that status quo was required to be maintained till the next date i.e. 22.11.2006. However, in the morning of 16.11.2006, it was noticed that the contractor had broken the seals and the locks and had regained possession of the Devka Garden and had started fullfledged activities of conducting business on the said land. Thus, the contractor had committed contempt of the Court by committing breach of the status quo order passed by this Court. It is contended that the information of sealing of the property and taking over possession of the same by the Administration was widely published in the local newspapers "Savera India Times" and "Asli Azadi" on 16.11.2006. In the "Savera India Times" dated 17.11.2006, it was published that the contractor had taken back possession in view of the stay granted by the Court. In fact, this clearly shows that the contractor had committed breach of the status quo order passed by this Court. Therefore, in Contempt Petition No.404 of 2006, the Administration prayed for taking action against the conttractor for contempt of 8 the Court. 5. In Contempt Petition No.131 of 2007, the Administration has produced number of documents and have also filed affidavits of Mr. Arun Mishra, Assistant Director of Tourism while Navin K. Feta - the appellant has filed affidavits in reply dated 20.6.2007 and 7.4.2008. In Contempt Petition No.404 of 2006, the contractor has produced several documents. Respondent No.3 Dharmendra Damania, Executive Magistrate and Mamlatdar has filed his affidavit in reply on behalf of himself and the respondent No.2 Richa Sharma, who was the Deputy Collector at that time. In the replies, they have taken the same plea which is taken by the Administration in Contempt Petition No.131 of 2007. 6. Heard the learned Counsel for the rival parties in both the matters. 7. From the facts stated above, it is clear that both the parties contend that contempt of the Court was committed by the opposite party by committing breach of the order passed by this Court on 15.11.2006 whereby the parties were directed to maintain status quo. 8. Mr. Warunjikar, the learned Counsel for the 9 contractor contended that the contractor had filed Appeal No.787 of 2006 against rejection of application Exhibit 5 by the Civil Court in respect of Devka Garden and the matter was listed on 15.11.2006. It is contended that he had given notice to the Administration that the matter would be coming up for admission on 15.11.2006. According to him, on 15.11.2006 at about 3.45 p.m., the matter was heard by this Court and a request was made by Mr. Kulkarni, the learned Counsel for the respondents i.e. the Administration for time and he also stated that the respondents would maintain status quo. In view of this, the Court adjourned the matter to 22.11.2006 and directed that in the meanwhile, the parties shall maintain status quo. Thus, by the order of the Court, both parties were bound to maintain status quo till the next date. It is also brought on record that Mr. Warunjikar addressed a letter to the Administrator, Union Territory, informing that in view of the undertaking given by the Advocate for the Administration, the Court had directed to maintain status quo till 22.11.2006. This letter dated 15.11.2006 was admittedly sent by Mr. Warunjikar by fax. He contended that inspite of the knowledge of this order, the respondent Nos. 2 and 3, Deputy Collector & Mamlatdar committed breach of the order by forcibly taking possession of the Devka Garden and evicting the 10 tourists and visitors from there. 9. On the other hand, Mr. Kulkarni, the learned Counsel for the Administration pointed out that the procedure of taking possession and sealing the property by the Administration was over by 4.00 p.m., while the letter of Mr. Warunjikar sent by fax was actually served on the Administration at 4.30 p.m. He pointed out that the status quo order was also passed pertaining another property known as "Jampore Beach" on Survey No.71 in A.O.No.788 of 2006. At about 4.50 p.m., when the officers were about to seal and take possession of the property at Jampore Beach, the letter by Mr. Warunjikar, sent by fax, was brought to the notice of the officers and, therefore, the officers did not take any further steps and that property was not seized. It shows that the officers obeyed the order. According to him, there is sufficient material on record to show that the contractor committed breach of the status quo order by breaking the seals and locks and by regaining the possession, possibly during the night between 15th and 16th November, 2006. 10. In view of the rival contentions and the material placed on record, the following points arise for consideration of this Court. 11 Contempt Petition No.404 of 2006 Contempt Petition No.404 of 2006 Contempt Petition No.404 of 2006 Point Finding Whether the Respondent No.2 - Richa No. Sharma and Respondent NO.3 - Dharmendra Damania, the Deputy Collector & Mamlatdar respectively at Daman committed contempt of the Court by committing breach of the status quo order. ? Contempt Petition No.131 of 2007 Contempt Petition No.131 of 2007 Contempt Petition No.131 of 2007 (1) Whether the respondent -Navin K.Feta Yes. had committed contempt of the Court by committing breach of the status quo order passed by this Court ? (2) What order ? 11. As pointed out earlier, there is no dispute that Special Civil Suit No.52 of 2006 was filed by the contractor - Padmavati N. Group through its proprietor, Navin K. Feta, seeking certain reliefs in respect of Devka Garden property. The application Exhibit 5 was rejected on 10.11.2006 and, therefore, he preferred A.O. No.787 of 2006 before this Court. The matter was circulated and heard for admission on 15.11.2006. Admittedly, the matter came up before the Court at about 3.45 p.m. At that time, Mr. Kulkarni, the learned Counsel for the Administration sought time and made a statement that the Administration would maintain status 12 quo till the next date. In view of this request and undertaking, this Court passed the order as follows :- "S.O. to 22nd November 2006. In the meanwhile, parties shall maintain the status-quo." It is material to note that similar order was passed in A.O.No.788 of 2006 which was filed against rejection of application Exhibit 5 in Regular Civil Suit No.38 of 2006 in respect of Jampore Beach. For the purpose of decision of these two Contempt Petitions, the property known as Jampore Beach and the order in that respect is not of much importance, but reference to the same may be relevant for the purpose of looking to the conduct of the parties. Admittedly, after the status quo order was passed by this Court at about 3.45 p.m., Mr. Warunjikar, the learned Counsel for the appellant sent a letter to the Administration of the Union Territory by fax. As per the record, the fax was received at Saibaba Communication at 4.25 p.m. According to the Administration, that fax letter was actually tendered to the Deputy Secretary (Revenue) at about 4.30 p.m. As the fax message was received at Saibaba Communication at 4.25 p.m., it can be safely believed that it must have been tendered at about 4.35 p.m. As per the affidavits filed on behalf of the Administration, the property at 13 Devka Garden was already taken possession of and sealed by the officers of the Administration by 4.00 p.m. because preparations were made since morning and actual possession and sealing work was completed between 3.30 to 4.00 p.m. According to them, before the High Court order was brought to their notice, Devka Garden property was already sealed and the contractor was dispossessed from the same and that status quo was required to be maintained by both the parties. It is contended that after Devka Garden property was sealed, the officers went to Jampore Beach for taking possession and sealing of that property. At about 4.50 p.m., when they were about to seal that property, the communication about High Court order was brought to their notice and, therefore, they left the place without taking any action about Jampore Beach property. It is an admitted fact that the Administration did not take any action for sealing the Jampore Beach property in view of the communication of the High Court order. This provides corroboration to the contention of the Administration and the respondents in Contempt Petition No.404/2006 that they had acted as per the directions of the High Court and they did not commit any breach. 12. The documents on record include the copy of the panchnama dated 15.11.2006 pertaining to Devka Garden. 14 It clearly reads that "the land bearing survey No.2/1 of Village Marwad known as Devka Amusement Park, Devka Garden has been sealed and taken possession on 15/11/2006 alongwith the articles as described below...." Below that there is a reference to certain cabins, stalls, etc. which were also sealed. At the bottom, it clearly stated that the panchnama had been drawn on 15.11.2006 commencing from 3.30 p.m. to 4.00 p.m. This is supported by the affidavits of the concerned officers. Several photographs were also produced on record to show that the property was sealed and, in fact, the act of sealing of the property is not even disputed by the contractor because, according to him, the sealing was done by the officers in breach of the High Court order. From this, it is clear that the property was sealed by about 4.00 p.m. 13. There is a report dated 16.11.2006 from Talathi of Marwad wherein he reported to the Mamlatdar that the Amusement Park at Devka Garden on land survey No.2/1 of Village Marwar was sealed on 15.11.2006 by the Deputy Collector Daman & Deputy Secretary (Revenue). According to the repot, on 16.11.2006, at about 9.45 a.m. while he was proceeding by the road, he noticed that the stalls on that land, which were sealed on the earlier day were lying open. On the same day, Circle Inspector 15 also prepared a panchnama which showed that the locks and seals were found broken open. .After getting information from Talathi, and the panchnama, the Deputy Collector and Mamlatdar i.e. respondent Nos. 2 and 3 in Contempt Petition No. 404 of 2006 also submitted a report dated 16.11.2006, to the Collector wherein the details about the same were given. That report indicates that the Collector had requested the C.O.P on phone to provide necessary police protection in the entire area at 9 a.m. on 15.11.2006 for the purpose of taking possession and sealing of the property. The officers had reached the spot at 9 a.m, but no police force was available while there were about 150 persons present to stop and obstruct them from taking possession. In these circumstances, the Deputy Collector, and Mamlatdar had approached the Collector, who directed the police to make police bandobast on the spot and asked the two officers to go to the spot at 3.30 p.m.to take possession and accordingly these two officers went to Devka Garden at 3.30 p.m. on 15.11.2006. As per this report, the front gate was removed and as all the stalls and cabins were locked and sealed. At about 4.30 p.m., a communication from Mr.Warunjikar was received but before that the sealing act was completed. 16 14. The Deputy Collector, Richa, lodged a report at the Police Station on 16.11.2006 against the contractor, i.e. the proprietor/management of Padmavati N. Group, Devka Garden for trespass on the said property after the same was locked and sealed. 15. Certain newspapers have been produced to show that wide publicity was given by the newspapers and the news of sealing of this property was published in the local newspaper known as "Savera India Times" and "Asli Azadi" dated 16.11.2006. The Contempt Petition cannot be decided on the basis of the newspaper reports. However, these newspaper reports can be looked into only for the fact that the act of sealing of the property was published in the newspaper and was known to the people. It is material to note that in the newspapers on 17.11.2006, news reports were flashed showing that Devka Garden was re-opened for the tourists by the Director of the Garden. Mr. Warunjikar vehemently contended that no eye-witness has filed affidavit to show as to who had broken open the locks and seals and had re-opened the garden. According to him, on the basis of the newspaper report, it cannot be concluded that the appellant had done that act. It is material to note that even though the suit was filed showing Padmavati N. Group as the plaintiff, but it has clearly revealed that it is a 17 proprietorship cocerned and Navin K. Feta is the proprietor. This fact is clear from the title of the appeal filed by him as well as the Contempt Petition No.404 of 2006 filed by him and there is no dispute that he is the proprietor and he was running the Amusement Park at Devka Garden. In such circumstances, nobody except the contractor Navin K. Feta could be interested in breaking open the seals and locks and taking possession of the property again. It is material to note that in his affidavit, Navin K. Feta has clearly stated that only some cabins and stalls were locked while some gates were still open and he did not break open the locks and seals, but as other entries were available, he continued to carry on his business. In his affidavit, dated 7.4.2008 he stated in para 4 that he is still in possession of the premises and he is conducting the necessary activities in the area, which is free and which is not sealed. He further stated that even now the portion from Devka Garden, where amusement games/rides are not installed, is in use and occupation and that even today the tourists are coming, tickets are sold to them, they are parking their cars and the scooters and that the Devka Amusement Park has maintained the record of the same. 16. If the panchnama dated 15.11.2006 is carefully 18 read, it becomes clear that the Administration had taken possession of whole of the property being Survey No.2/1 known as "Amusement Park" Devka Garden and it was sealed and along with that the cabins and stalls specifically mentioned were also sealed. In view of the panchnama, the contractor could not be said to be in possession of the said Amusement Park and the property standing thereon. His own admissions clearly show that he is carrying on business and he claims to be in possession of the same. His admissions fully corroborate the contention of the Administration that he had broken open the locks and seals put on the property possibly in the night between 15th and 16th November, 2006. He was fully aware about the status quo order passed by the Court. He was fully aware that before the order was communicated to the Administration, the property was already sealed. In such circumstances, if he had any grievance about sealing of the property, he could move the Court and seek appropriate directions and relief. He could not be allowed to take the law into his hands and break open the locks and seals of the property and re-possess the same. Inspite of knowing the status quo order passed by the Court and inspite of being aware that the possession was already taken over by the Administration before the order was communicated, he ventured upon breaking open the seals and locks and 19 taking possession. Not only this, he claims to be in possession and running business on the same even after that date This clearly shows that he has committed breach of the order and flagrant contempt of the Court thereby. 17. On the other hand, in view of the material discussed above, it is clear that the Deputy Collector and Mamlatdar of Daman had locked and sealed the property and taken possession by 4.00 p.m. on 15.11.2006 i.e. before the status quo order passed by the Court was communicated to the Administration. If without knowledge of the order of the Court they had sealed the property and taken possession thereof, it cannot be said that they had committed any breach of the order of the Court nor it can be said that they had committed contempt of the Court. In view of this, Contempt Petition No.404 of 2006 is liable to be dismissed. 18. Navin K. Feta, proprietor of Padmavati N. Group, who is respondent in Contempt Petition No.131 of 2007, knowingly and intentionally committed breach of the status quo order passed by the Court and thus committed contempt and therefore, he is liable to be punished for the same. It is alsoan admitted fact that 20 the trial Court had dismissed the suits wherein he has challenged the action of the Administration in anulling and cancelling the agreement of 1998 on the ground that notice under Section 80 of C.P.C. was not served on the Administration but that order has been set aside by the High Court as per the order dated 14.3.2008 in Writ Petition No.8691 of 2006 and Writ Petition No.8692 of 2006 and the suits are still pending before the trial Court. In such circumstances, in my considered opinion, there will be no justification to award sentence of imprisonment. However, in view of the circumstances, the purpose will be served if some fine is imposed on Navin K. Feta/the contemnor. 19. In