AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT APPEAL NO.10 OF 2006 (Under Section 19 of the Contempt of Courts Act, 1971) 1. Shaikh Jaibunnisa Abdul Latif ) 2. Smt. Sundra Balkrishna Jadhav ) 3. Shri Surendra Balkrishna Jadhav ) 4. Shaikh Nawab Suleman ) 5. Shaikh Salim Issa ) 6. Smt. Rehana Usman Shaikh ) 7. Shaikh Rabiya Jalal ) 8. Shaikh Hasina Afsar ) 9. Shaikh Jainab Afsar ) 10. Madar Subhan Chakole ) 11. Shri Prakash Harish Chandra Warde ) 12. Smt. Kamal Subhash Warde ) 13. Sufiya Bano Habib Baharaichi ) 14. Mohammad Rais Habib Baharaichi ) 15. Mohd. Shafik Habib Baharaichi ) 16. Khan Badrunnisa Shaukat ) 17. Sajaat Ahmed Khan ) 18. Razia Banu Irshad Ahmed Khan ) 19. Sakhawat Husain Irshad Ahmed ) 20. Mrs. Sunita Rajendra Rane ) 21. Gaffar Abdul Razzak Mendhegar ) 22. Ismail Abdul Razzak Mendhekar ) 23. Shankar Ramchandra Sapkar ) 24. Shaikh Naser Mahaboob ) 25. Smt. Shamim Banu Abdul Samad ) 26. Mohd. Tabrej Abdul Samad ) 27. Mohd. Parvez Abdul Samad ) AJN 2 28. Imam Qureshi ) 29. Shaikh Mohammad Razi Musa ) 30. Shaikh Faymida Mohd. Razi ) 31. Shaikh Majid Rasul ) 32. Smt. Shaikh Sakhawatbi Ismail ) 33. Smt. Sayyad Shahnaz Samsudin ) 34. Smt. Pramila Bisai Shivpoojan ) Age : All are adults, Indian Inhabitants, residing at “Jilani Wadi”, Road No.9 Q, Wagale Estate, Thane – 400 604, through their Shaikh Naser Mahaboob -–appellant No.24 herein. ) ) ) ) ) ... Appellants (Orig. Interveners) Versus 1. Nirajan Singh Bajaj, Age 65 years. ) 2. Pritpal Singh Bajaj, Age adult. ) 3. Kalyan Singh Bajaj, Age adult. ) 4. Ameer Singh Bajaj, Age adult. ) 5. Jaswinder Singh Bajaj, Age adult. ) Nos.1 to 5 having their office at 144, Maker Chambers No.11, Nariman Point, Mumbai – 400 021. ) ) ) 6. Miss Khairunnissa Rais Mohd. Choudhary, Age adult. 7. The State of Maharashtra, through the Secretary of Department of Urban Land Development and Housing, Mantralaya, Mumbai - 400 032. 8. Thane Municipal Corporation, Mahapalika Bhavan, Dr. Almeda Road, Chandanwadi, Pachpakhadi, Thane (W) -– 400 602. AJN 3 9. Municipal Commissioner, Thane Municipal Corporation, Mahapalika Bhavan, Dr. Almeda Road, Chandanwadi, Pachpakhadi, Thane (W) – 400 602. ) ) ) ) ) ... Respondents Mr. S.M. Oka i/b Mr. Sagar Joshi for the appellants. Mr. P.S. Dani for the respondents 1 to 6. Ms. P.S. Cardozo, A.G.P. for the State. Mr. R.S. Apte for the respondent-Corporation. CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 17TH OCTOBER, 2006. DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 18TH OCTOBER, 2006. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. This case has a long history. We must begin by narrating it for a lot turns on it. 2. Respondents 1 to 5 were the owners of original plot No.553 and original plot No.551 situated at Village Panchpakhadi, Thane. Town Planning Scheme was prepared by Thane Municipal Corporation for the area which falls within its jurisdiction. Under this scheme, original plot Nos.551 and 553 AJN 4 stood acquired for public purpose and, in lieu thereof, final plot No.141 was allotted to respondents 1 to 5. The said Scheme came into force with effect from 1/5/1985. Since the possession of final plot No.141 was not handed over to them, respondents 1 to 5 filed petition in this court being Writ Petition No.1404 of 1989 against Thane Municipal Corporation, Commissioner of Thane Municipal Corporation, Assistant Director of Town Planning, Thane Municipal Corporation and State of Maharashtra, praying for a writ directing Thane Municipal Corporation and the Commissioner, Thane Municipal Corporation to remove all structures constructed on final plot No.141 and for handing over possession thereof to them. 3. On 3/10/1996, this petition was partly allowed. Thane Municipal Corporation and the Commissioner of Thane Municipal Corporation were given time upto 31/5/1997 to clear final plot No.141 by removing trespassers and hand over the same to respondents 1 to 5 on or before that date. 4. Writ Petition No.1680 of 1997 was filed by the relatives of the present appellants on 29/3/1997 to challenge the notice issued under sections 89 and 90 of the MRTP Act. It was dismissed on 11/4/1997. At the request of the petitioners, time to vacate the plot in question was granted upto 11/6/1997 on the condition that all the petitioners file usual undertaking to hand over vacant and peaceful possession thereof to the Municipal Corporation on or before 11/6/1997. Undertaking was to be filed on or before 28/4/1997. It appears that undertaking to vacate plot No.141 was filed in this court as per order AJN 5 dated 11/4/1997. 5. Admittedly, special leave petition filed in the Supreme Court against the judgment and order dated 11/4/1997 was dismissed by the Supreme Court. Therefore, on 10/6/1997, the petitioners applied to this court that as a special case, fifteen days' time be granted to them for vacating the said plot. A statement was made that undertaking filed by the petitioners to vacate and hand over the said plot of land to the respondents shall continue till the petitioners vacate the land. Time to vacate was thus extended to 26/6/1997. 6. Thereafter, Writ Petition No.3248 of 1997 was filed for the same relief. It was dismissed on 22/2/1997. R.C.S. No.228 of 1997 was filed in the Thane Court for similar relief. Application for interim relief filed in the said suit came to be rejected. R.C.S. No.137 of 1997 was filed in the Thane Court for similar relief. Ad-interim relief of status-quo was granted in this suit on 10/1/2005. Subsequently, it was vacated. 7. Civil Application No.1889 of 2005 came to be filed in Writ Petition No.1680 of 1997 for recalling order dated 11/4/1997 passed in Writ Petition No.1680 of 1997. That application was dismissed on 26/6/1997. 8. On 21/2/2005, Contempt Petition No.69 of 2005 was filed by respondents 1 to 5 in this court. In this contempt petition, the respondents gave a gist of the above facts and prayed that the Thane Municipal AJN 6 Corporation, the Commissioner of Thane Municipal Corporation and the Assistant Director of Town Planning, Thane Municipal Corporation be held guilty of contempt of this court's order dated 3/10/1996 in Writ Petition No.1404 of 1989 and they may be directed to clear final plot No.141 and hand over possession thereof to respondents 1 to 5 in accordance with law. 9. It appears that in the meantime, one more writ petition being Writ Petition No.4969 of 2005 came to be filed in this court raising the same controversy. On 23/11/2005, this court rejected the said writ petition holding that it will not be possible to raise such contention in the fresh petition regarding the same subject in connection with which this court has already dismissed earlier writ petition. 10. On 12/7/2005, the appellants filed Civil Application No.4 of 2006 for intervention in Contempt Petition No.69 of 2005. The same is pending. 11. Another writ petition being Writ Petition No.8148 of 2005 raising same issues was dismissed on 1/12/2005. Thereafter, the petition was mentioned for speaking to the minutes. This court noted that earlier petition in connection with the same plot was rejected and, hence, no further order was necessary. Special leave petition filed against this judgment was dismissed. 12. In Contempt Petition No.69 of 2005, on 2/3/2006, a statement came to be made on behalf of the appellants that they have no objection to the AJN 7 demolition of the structures which are outside final plot No.180 and controversy can be put at rest if DILR undertakes measurements and demarcates the plot so as to identify final plot Nos.141 and 180. Accordingly, DILR was appointed, measurement of the land were taken. The appellants, however, took objection to the measurements taken by the DILR. Therefore, learned Single Judge granted time to the appellants to file appeal before the Superintendent, Land Records. He directed Superintendent, Land Records to decide the appeal within three weeks. This order was passed on 28/4/2006. It appears that the appeal filed pursuant to this order was dismissed on 18/5/2006. Thereafter, the appellants filed Writ Petition No.3646 of 2006 challenging the order dated 18/5/2006 passed by the Superintendent, Land Records. Since the learned Single Judge was seized of the contempt petition, the said petition was placed before him. By the impugned order dated 15/6/2006, the learned Single Judge dismissed the said writ petition. It appears that the special leave petition filed against the said order was dismissed by the Supreme Court on 1/9/2006. On 1/9/2006, two civil applications were filed by the appellants in Contempt Petition No.69 of 2005. In Civil Application No.114 of 2006, it is prayed that the order dated 15/6/2006 passed by the learned Single Judge be reviewed and/or recalled and the contempt petition be dismissed on the ground that Khairunisa Choudhary has no right to file and pursue contempt petition in absence of power of attorney executed in her favour by respondents 1 to 5. In Civil Application No.115 of 2006, the appellants have prayed that order dated 15/6/2006 be reviewed and/or recalled and the contempt petition be dismissed on the ground that AJN 8 respondents 1 to 5 are not the allottees of the final plot No.141. Civil Application No.115 of 2006 was dismissed by the learned Single Judge on 13/9/2006. That order is also challenged before us. Civil Application No.114 of 2006 is, however, pending. 13. We will now turn to the challenge to the impugned orders. Mr. Oak's primary contention is that the contempt petition is barred by limitation and, hence, it must be rejected. He pointed out that respondents 1 to 5 contend that the appellants have committed contempt of this court's order dated 11/4/1997. He pointed out that time to vacate the land in question was granted upto 11/6/1997 and it was extended upto 26/6/1997. Mr. Oak contended that as per section 20 of the Contempt of Courts' Act, 1971, contempt proceedings cannot be initiated by the court either suo motu or otherwise after the expiry of one year from the date on which the contempt is alleged to have been committed and, therefore, contempt petition filed on 21/2/2005 was barred by limitation. In this connection, the learned counsel relied on the judgment of the Supreme Court in Pallav Sheth v. Custodian & Others, (2001) 7 SCC 549 and judgments of this court in M/s. Golcha Advertising Agency v. The State of Maharashtra & Another, 1990 (2) BCR 262 and M/s. Earth Designers and Developers Private Limited v. M.K. Patil, 2003 Cri. L.J. 3785. 14. Mr. Dani, on the other hand, submitted that though order of this court is AJN 9 dated 11/4/1997, despite giving undertaking to this court, the appellants did not hand over possession. He pointed out that to avoid handing over possession, the appellants filed several writ petitions raising the same issues which came to be rejected. Special leave petitions filed against the said judgments also came to be rejected by the Supreme Court. The appellants also filed civil suits for the same reliefs. Interim relief applications filed therein came to be rejected. In R.C.S. No.137 of 1997, on the appellants' application for interim relief, order of status quo was passed on 10/1/2005. Subsequently it was vacated. Mr. Dani pointed out that the appellants filed undertaking as directed by this court on 11/4/1997 but till date they have not handed over possession. They are thus in contempt of this court's order. Mr. Dani contended that in view of this conduct, it is not open for the appellants to contend that the contempt appeal is barred by limitation. Mr. Dani contended that since the appellants have not handed over possession despite this court's order and in breach of the undertaking given by them, they are guilty of a continuing wrong and, therefore, section 20 of the Contempt of Courts Act is not applicable to this case. In this connection, Mr. Dani relied on Firm Ganpat Ram Rajkumar v. Kalu Ram & Others, 1989 Supp. (2) SCC 418. 15. Admittedly, point of limitation is not raised before the learned Single Judge. The contempt petition is not yet admitted. In the circumstances, and in view of the order which we propose to pass, we refrain from expressing any opinion on the aspect of limitation. AJN 10 16. We will now turn to the impugned order dated 15/6/2006. By this order, the learned Single Judge has dismissed Writ Petition No.3646 of 2006. As we have already noted, in this petition, the appellants had challenged the order passed by the Superintendent, Land Records, dismissing their appeal. So far as that part of the impugned order is concerned, contempt appeal against the same is not maintainable. Whether the learned Single Judge has correctly dismissed the challenge to the order passed by the Superintendent, Land Records cannot be examined by us in a contempt appeal. 17. The remaining part of the learned Single Judge's order records the appellants' undertaking that they shall vacate the premises in question if some time to vacate is granted. The learned Single Judge has opined that the proceedings before him are abuse of process of court. He has further recorded that since with a view to purging contempt, the appellants are willing to vacate the premises on their own, their request for reasonable time deserves consideration. Having regard to the willingness shown by the appellants to vacate the premises unconditionally, the appellants were granted time till 15/9/2006 to vacate. The learned Single Judge directed that if the appellants fail to vacate as undertaken by them, it will be open to the authorities to take action against the appellants and persons occupying the disputed premises on or before 16/9/2006 if required by employing police force. The learned Single Judge adjourned the hearing of the contempt petition till 18/9/2006 to observe the conduct of the appellants. He clarified AJN 11 that this indulgence was shown to the appellants because of the unconditional undertaking given by them through their counsel which was accepted by him. 18. As regards this part of order dated 15/6/2002, Mr. Oak's grievance is that the learned Single Judge has exceeded his jurisdiction. He contended that it was not open to the learned Single Judge to direct that if the appellants do not vacate the suit premises they should be evicted with the help of police. He drew our attention to roznama of the contempt petition. He submitted that the learned Single Judge exceeded his jurisdiction when he directed the concerned police station to offer police protection to officials of the Corporation. He submitted that the learned Single Judge could not have directed the Corporation to proceed with demolition if appeal was not filed by the appellants before the Superintendent, Land Records. He submitted that almost all orders passed by the learned Single Judge which are noted in the roznama are in excess of his jurisdiction. Mr. Oak contended that in exercise of contempt jurisdiction, the court must only find out whether there is any contempt or not and if it finds that there is a contempt, it can punish the contemnor. The court cannot travel beyond this. 19. In this connection, Mr. Oak relied on Satyahrata Biswas & others v. Kalyan Kumar Kisku & Others, (1994) 2 SCC 266. In that case, the learned Single Judge of the High Court of Calcutta had directed to maintain status quo `as of today' in respect of the suit premises. It was alleged that by putting AJN 12 padlock on the entrance of the premises, the appellant had committed contempt of this order. The learned Single Judge directed inventory to be made. Special Officer put his padlock. Second respondent claimed to be a tenant. On his application, the learned Single Judge directed removal of padlock and allowed the second respondent to occupy the premises. Removal of padlock was complained of in an appeal. The Division Bench ordered delivery of possession to the second respondent. The Supreme Court observed that the High Court had not kept itself within the precincts of contempt jurisdiction and had passed orders which were totally alien to the issue. 20. Mr. Oak also relied on Jhareswar Paul & others v. Tarak Nath Ganguly & Others, (2002) 5 SCC 352. In that case, in writ petition filed by ex-cadre government employees, the Calcutta High Court held that the petitioners would be entitled to the benefits on par with cadre employees in the matter of promotion. The Government accordingly provided for promotion in the ex cadre. Contempt petition was filed under Article 215 of the Constitution of India alleging non-compliance of the High Court's order. The Calcutta High Court directed preparation of common gradation list by taking into account the ex cadre employees also. That order was challenged in the Supreme Court. The Supreme Court observed that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party. The Supreme Court observed that the contempt court AJN 13 has to consider the direction issued in the judgment and order and not the question as to what the judgment and order should have contained. The Supreme Court set aside the impugned order. 21. Mr. Oak also relied on V.M. Manohar Prasad v. N. Ratnam Raju & Another, (2004) 13 SCC 610. In this case, the learned Single Judge disposing of the contempt matter had given a direction to the State Government to sanction the posts. The Supreme Court held that contempt court had no jurisdiction to issue such directions. An order passed in the contempt petition cannot be a supplemental order to the main order granting relief. The Supreme Court set aside the said order. 22. Mr. Dani learned counsel for respondents 1 to 5 did not dispute this proposition. He however, contended that the learned Single Judge has not exceeded his jurisdiction because the orders to which attention is drawn are invited by the appellants. They offered to hand over possession. They undertook to hand over possession. The learned Single Judge gave all directions in the presence of counsel for the appellants. He participated in all proceedings and consented to the orders and, hence, there is no question of any excess of jurisdiction. Mr. Dani contended that it is true that the contempt court's jurisdiction extends to punishing the contemnor, but in this case, the appellants have, by their conduct and consent invited orders of the contempt of court. Mr. Dani invited our attention to the judgment of the Supreme Court AJN 14 in Kapildeo Prasad Sah & Others v. State of Bihar and Others, (1999) 7 SCC 569, where the Supreme Court has held that initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved. Mr. Dani contended that in all the judgments which were relied upon by the appellants, the contempt court had modified or supplemented the main order. Such is not the case here. 23. To examine this point, it is necessary to have a look at the roznama. It appears from the roznama that the learned Single Judge has been effectively dealing with this matter from 20/1/2006. The court was told that the appellants had filed proceedings before the Supreme Court. The petition was adjourned on that count to 20/1/2006 and then to 7/2/2006. On 7/2/2006, the Municipal Corporation's counsel made a statement that they will execute the order of this court by police assistance. On 21/1/2006, Municipal Corporation's counsel made a statement that police protection has been sought by them. It is in view of this statement that the court added that protection be given as sought for unless the Supreme Court forbids such action. On 2/3/2006, a statement was made by the counsel for the appellants that they have no objection if structures which fall outside final plot No.180 are demolished. It is he who suggested that DILR should be appointed to identify final plot Nos.141 and 180 so that demolition process in respect of the structure on final plot No.141 can proceed. Accordingly, DILR was asked to measure the plots. Appellant's counsel stated that the appellant will extend all AJN 15 cooperation. On 9/3/2006, order dated 2/3/2006 was slightly varied by consent. On 28/4/2006, the court only expressed that the Municipal Corporation will be obliged to take steps in respect of the structures so as to comply with the directions given by this court in past. On that day, grievance was made by the appellants that the measurements taken by the City Survey Officer were not correct. The court observed that as there should be no doubt left, the appellants should resort to statutory appeal before Superintendent of Land Records. A direction was given for disposal of the appeal within a time frame. It is against the backdrop of these facts that the court observed that if the appeal is rejected, the City Survey Officer's order would be final. The court recorded the statement of the A.G.P. that local police station will extend cooperation to the Municipal Corporation for carrying out demolition work. Statement of the counsel of the appellant was recorded that if they fail in the appeal, it will be open to the Municipal Corporation to proceed with demolition in accordance with law. It is against this background that the court clarified that if no appeal is filed within one week, the Municipal Corporation should proceed with demolition. 24. From the impugned order dated 15/6/2006 also it is clear that it is the appellants who showed willingness to vacate the premises. In fact the appellants' counsel undertook to vacate the suit premises and that undertaking was accepted by the court. The court then granted time upto 15/9/2006 to vacate and it is in view of the undertaking given to the court that the court directed that the authorities could evict the appellants' by employing AJN 16 police force. 25. It is evident from this that all orders are invited by the appellants. They have participated in the proceedings, given undertakings which have been accepted by the court and, hence, in the facts and circumstances of the case, it cannot be said that the learned Judge has exceeded his jurisdiction. It is pertinent to note that the undertaking was given by the appellants in this court as far back as in the year 1997 in Writ Petition No.1680 of 1997. Thereafter the appellants have filed a number of writ petitions which were rejected. Special leave petitions filed by the appellants were also rejected. Civil suits were filed by the appellants. The appellants were not successful in getting any interim orders. The appellants who are litigating since 1997 cannot be called laypersons. They have conceded to orders being passed. They have voluntarily given undertaking. In such situation, we are unable to hold that the learned Single Judge has exceeded his jurisdiction. The judgments of the Supreme Court on which Mr. Oak has placed reliance would not be applicable to this case. 26. Mr. Dani also raised a preliminary objection that the instant appeal would not be maintainable because the impugned order does not impose any punishment on anyone. In this connection, he placed reliance on the judgment of the Supreme Court in State of Maharashtra v. Mahboob S. Allibhoy and Another, (1996) 4 SCC 411 where the Supreme Court has held that if the AJN 17 High Court passes an order in exercise of its jurisdiction to punish any person for contempt of court, then only an appeal shall be maintainable under sub- section (1) of section 19 of the Contempt of Courts Act, 1971. An appeal cannot lie under the said section against an interlocutory order passed in a proceeding for contempt by the High Court. 27. Mr. Oak, on the other hand, relied on the judgment of the Supreme Court in R.N. Dey & Others v. Bhagyabati Pramanik & Others