1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.50 OF 2008 IN WRIT PETITION NO.1077 OF 2007 Sudhir M. Khandwala .. Petitioner Versus Jairaj Pathak & Ors. .. Respondents Mr.C.Balsara with Mr.Thorat for petitioner Mr.Sakhare, Senior Advocate with Ms.T.H.Puranik for respondent Nos. 1 to 4 Mr.R.Narula with Mr.A.Narula i/b. Narula & Associates for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. DATE : 16th March 2009. P.C. . This a contempt petition by the original petitioner. It is directed against the Municipal Corporation of Gr.Mumbai and its officers so also one Mr.Jayesh Shah, who is director of Ravi Real Estate and Developers Pvt.Ltd. 2. Although, the contempt petition does not 2 set out as to why respondent No.5 is impleaded and in what capacity, orally it is contended that he is party respondent to the writ petition and therein, he is described as being impleaded in his capacity as Director of the above company which is carrying on business as builders and developers. 3. The petitioner states that the writ petition was filed in this Court challenging an order dated 14th may 2007 passed by the Municipal Commissioner directing respondent No.5 to the contempt petition to demolish floors from 7 to 24 of a building known as "Gaurav Gagan Building" (No.CHE/7526/WS/AR), situate at Kandivali West, Mumbai. 4. It is not necessary to refer to the writ petition and the allegations and averments therein, save and except to state that the order has been challenged by the petitioner because he 3 is aggrieved in his capacity as an occupier and flat purchaser of the building. The Commissioner has refused to Regularise the construction and that is how the writ petition is filed. 5. When the petition was placed before this Court, an order was passed on 5th June 2007, a copy of which is annexed to the instant contempt petition. This order states that respondent No.5 should file reply affidavit. The Municipal Corporation was directed to produce original records on the next date of hearing and an order of status quo granted on 25th May 2007 was directed to be continued. Further, the respondent developer was restrained from selling the rights on the basis of TDR. 6. It is stated that the attention of the authorities so also that of the respondent No.5 was invited to this order and they were called upon to prevent the developer from selling the 4 balance FSI from Certificate Nos.(a) SRA/637/UR, (b) SRA/379/UR, (c) SRA/245/UR dated 22nd September 2006, 27th April 2004 and 12th February 2003 respectively or any other TDR FSI belonging to the respondent Nos.5 and 6 or any other persons claiming through them, from selling in the local market or for making utilisation of the balance F.S.I. for any other project including any other project of the respondentr No.5 or respondent No.6 as well as of the respondent No.6 herein either individually or in partnership or in collabortion, or under any Trade Name, in whatsoever manner." 7. After this order was passed, the petitioner has filed a further affidavit in the writ petition stating therein that the respondent No.6 to the writ petition who is respondent No.5 to the contempt petition, has allegedly sold TDR of 1380 sq.mtrs. on 16th April 2007. It is stated that the representation dated 20th April 5 2007 submitted by the petitioner to the Municipal Corporation details the availability of the said TDR under Development Rights Certificate No.SRA/637/Rehab which has not been denied by respondent No.6. It is stated that the matter appeared before the Court on 5th June 2007 but neither respondent No.5 to this contempt Petition nor respondent No.6 to the writ petition or their Advocates informed the court that the above TDR has been sold. It is stated that on the basis of the above sale, the concerned parties are trying to make entries of alleged transfer in B.M.C. records. In such circumstances, petitioner prayed that concerned officers of respondent Corporation deserve to be restrained from effecting any transfer of the said TDR/ FSI of 1380 sq.mtrs. under the above certificate in the records of Corporation. The petitioner in this affidavit also brought to the notice of the Court in paras 5 and 6 certain T.D.R./F.S.I. available in the form of DRC/ TDR. He also brought to the 6 notice of the Court certain proposals to obtain TDR/ FSI. He has given details of how the TDR is to be generated. Thereafter, in paras 6 and 7 of this affidavit the petitioner stated thus:- "6. I say that as such in order to preserve the sanctity of the Order dated 5/6/2007 and so as not to defeat the purpose of the order dated 5/6/2007 it would be just and proper to restrain the respondent Corporation not to clear the proposal of the respondent Nos. 5 and 6 for transfer of any of the TDR/FSI in the records of the Corporation and also grant the relief sought in prayer clause (d) of the Writ Petition." "7. The petitioner states that as come to know from various information under Right of Information, the respondent No.6 has received and/or 7 seeking permission to utilise TDR/FSI in their various projects including following instead of loading TDR/FSI to clear the deficiency in the existing layout wherein suit building is situated:- (a) Dwarkesh Park Layout Ref.No.CE/1143/LOR/WS/AR at Borivali -West; (b) Rock Enclave/Avenue Project Layout No.1826/LOR/WS/AR at Village Kandivali." 8. The petition then appeared before the Division Bench on 29th June 2007 and the following order was passed:- ". We have heard learned Counsel for petitioner at some length. Municipal 8 Commissioner is directed to file an affidavit in relation to the various aspects which have been indicated during the course of hearing with particular reference to source of power for regularisation, use of power of regularisation which are to be in conformity with the provisions relating to planned development and the availability and utilisation of T.D.R. to be surrendered prior or along with the plans for sanction and in any case prior to construction. The Commissioner shall state as to how in the present case i.e. W.P.1077 of 2007, where stilt plus seven floors were sanctioned, how did twentyfour storyed structure came up and what action has been taken by the Commissioner against the officers in charge of the area for all this time. Let this affidavit be filed within two 9 weeks. S.O. 20th July 2007. 2. In the meanwhile, we direct the Developer i.e. respondent No.5 and its Director respondent No.6 to file a list of his properties as well as projects which they are developing in this city and the projects for which he has submitted plans to the Corporation shall also be stated by the Commissioner in the affidavit." "3. Interim order shall continue in all these matters and none of the builder in all these cases is permitted to sell, utilise the T.D.R. or load against the structure which are available to them as of today." 9. It is alleging that there is a deliberate 10 and wilful disobedience of this order and direction, that the instant contempt petition is filed. 10. Mr.Balsara appearing for petitioner invited my attention to the contempt petition and more particularly para 21 thereof, wherein, he states that the contumacious acts of respondents are highlighted. He has emphasised Serial Nos. 1 to 3 of the chart. He submits that from a perusal of this material, it would be evident that this is a fit case where ingredients of section 2(b) of the Contempt of Courts Act, 1971 are satisfied. There is a civil contempt. In these circumstances, the contempt petition deserves to be admitted. 11. Mr.Balsara has taken me through the order passed by a single Judge of this Court on 25th November 2008 in this contempt petition. Mr.Balsara contends that as far as respondent 11 Nos. 1 to 4 are concerned, there is discrepancy in the two certificates issued by them under the signatures of Executive Engineer. This discrepancy has been pointed out by the petitioner and that is how, the learned Single Judge directed filing of an affidavit of respondent Nos. 1 to 4 and production of the original records. He submits that this is an attempt by the Corporation to join hands with the developer in defeating and frustrating the order and direction of this Court. Once the Corporation and its officers so also the developer have flouted the order and direction of this Court, then, the Court must proceed to admit this contempt petition and issue further notices as contemplated by the Act and the Rules. 12. On the other hand Mr.Sakhare, learned Senior Counsel appearing for respondent Nos. 1 to 4 has contended that the order passed by this Court is against the Respondent No.5 - Developer. 12 It is this respondent No.5 who has been restrained from selling, disposing of and utilising the FSI on the basis of TDR. There is no order and direction against the respondent Nos. 1 to 4. On the other hand, a perusal of the affidavit filed by the petitioner on 11th June 2007 in the writ petition would show that the petitioner himself understood the order as not being directed against the Corporation. Once the order and direction is not against the Corporation and its officers, then, on what basis the contempt petition has been filed alleging civil contempt by them is not clear at all. 13. In any event, the Corporation has filed an affidavit and has pointed out the correct factual position. Mr.Sakhare has invited my attention to the affidavit filed by the Assistant Engineer (B.P.) R Ward. He submits that all details pertaining to the certificates have been clearly set out with the numbers. He has invited 13 my attention to para 7 of this affidavit. 14. Further, Mr.Sakhare has invited my attention to the affidavit filed on 1st December 2008. He submits that there is no discrepancy as will be clear from the original records which are produced for perusal of this Court. He submits that the matter has been fully explained by the officers and it is not as if the Corporation has in any manner flouted the order. The Corporation has not permitted any utilisation of TDR by the Developer after the order passed by this Court was duly communicated. In these circumstances, this contempt petition is misconceived and must be dismissed. 15. Mr.Narula appears on behalf of respondent No.5. He submits that respondent No.5 has filed a detailed affidavit. Mr.Narula has pointed out that the contempt petition is an abuse of the process of law. He submits that the petitioner 14 is an Ex- Employee of Flat Purchaser from Respondent No.5. The petitioner has joined hands with the business rival Nilesh Vora and his brother in law, Arun Gada of M/s.Nova Nirman Nigam. The petitioner has at the instance of M/s.Nova Nirman has filed one after other frivolous legal proceedings with oblique motive of causing undue harassment to respondent No.5 and pressurising him to succumb to his demands which are unreasonable. He submits that the petitioner is flat purchaser in the building "Gaurav Gagan" which has been constructed by said Vora in total disregard to the law and without adhering to the terms and conditions of IOD/CC. In such circumstances and when the main matter is pending, this Court should not assist the contempt petitioner. 16. Mr.Narula relied upon the well settled principle that in contempt proceedings, it is not for the Court to resolve the controversy with 15 regard to the interpretation of the order. The order must be taken as it stands. There is no scope for adding or diluting anything from it. If the order is unclear and ambiguous and if a party has acted bonafide upon its own interpretation of the order, then, there is no contempt. That apart, Mr.Narula has invited my attention to para 8 of the affidavit in reply. He states that respondent No.5 has fully abided by the order of this Court. He states that it is incorrect to state that respondent No.5 or any of his firms is loading any TDR in respect of Dwarkesh Park and Rock Enclave/ Avenue Layout. It is further stated that the TDR in the said two layouts is being loaded by the respective developers appointed by respective firms of respondent No.5 who have acquired TDR/DRC in their names. Further Mr.Narula has invited my attention to para 11 of the affidavit in reply and has contended that the TDR in question in respect of File No.CHE/4096/BP/WS/AR was 16 purchased on or about 1st June 2000 and the seller has executed "U" Form No.1892 with the Corporation. However, on account of the writ petition No.379 of 2003 being filed in this Court, regularisation order was not passed. After the order was passed in the writ petition, respondent No.5 forwarded revalidated documents but the Municipal Commissioner has not passed any orders of regularisation in respect of Building Gaurav Palace. Thus, there is nothing that is done after the order dated 29th June 2007. 17. Mr.Narula has invited my attention to para 17 of the affidavit in reply and has contended that the DRC No.SR/637/Rehab was sold to Hiten Shah under an Agreement of January 2007 for the consideration that is mentioned in the reply at para 11. He states that nothing has been done after the order was passed. The rights have been sold some time in March 2007 i.e. prior to the passing of the order of Division 17 Bench. 18. Similarly, he has pointed out that with regard to TDR of 1060 sq.mtrs. utilised in the building under the DRC, details of which are set out in para 18, it is one D.B.Todiwala who executed the agreement of transfer on 29th October 2007. He sold the FSI to Pradip Shah, constituted attorney of Babubhai. It is the said Pradip Shah, who submitted the DRC, along with Utilisation form. Therefore, neither the DRC was standing in the name of 5th respondent nor his firm submitted the same to the B.M.C. He has relied upon Registered Agreement dated 30th November 2004 and a deed of modification dated 5th September 2005, whereunder, he has assigned the development rights in respect of the subject building which is approved under CHE/A-3612/BP/WS/AR to M/s.Sneha Developers, which is the partnership firm of Pradip Shah and Ors. The I.O.D. and C.C. have been sanctioned 18 in the year 2006. 19. Mr.Narula has also invited my attention to paras 21 and 23 of the affidavit in reply as well. He submits that the 5th respondent has not taken any steps so as to dispose of, utilise or sell any FSI/ TDR after the order of the Division Bench and, therefore, there is no question of its violation or breach, much less, wilful disobedience. The Contempt Petition is one more proceeding initiated by petitioner to harass and pressurise respondent No.5. It is thoroughly misconceived and must be dismissed. 20. With the assistance of learned Counsel for parties, I have perused the contempt petition, annexures thereto including the order of Division Bench and the affidavits filed on record. Both sides have tendered compilation which also have been perused by me. 19 21. I have reproduced the orders passed by this Court only with a view to satisfy myself as to whether the principle relied upon by Mr.Narula would apply to this case also. For the reasons that are set out hereinbelow, I am satisfied that this is not a case for civil contempt. The contempt petition must, therefore, fail and is dismissed. 22. While giving my reasons, I must clarify that none of the observations made by me shall be construed as an expression of any opinion insofar as merits of the case are concerned. If the Brihanmumbai Municipal Corporation and its officers have acted illegally and have indeed brought about a situation wherein the structure is rendered unauthorised and is required to be demolished so also whether any case for regularisation is made out or not, are all matters which shall be decided in the writ petition and after considering the case set up by 20 both sides. That would be done independent of the observations in the order passed on the contempt petition. Any findings in this petition do not absolve either the Corporation or the Developers insofar as their liabilities and obligations in law. These aspects should be dealt with independent of the conclusions reached in this contempt petition. 23. However, a careful perusal of the order passed by the Division Bench would demonstrate that the Division Bench has directed the respondent Nos. 5 and 6, Developer before it, not to undertake or sell their rights on the basis of TDR. The Division Bench, thereafter, directed both the Developer and its Director to file list of properties as well as their projects which they are developing in the city and the projects for which they have submitted plans to the Corporation by stating all such details on Affidavit. Non compliance of this direction has 21 not been alleged nor pressed before me. Therefore, the limited issue before me is whether the interim order directing respondent - builder to maintain status quo and restraining him from selling, utilising the TDR or load it against the structures which are put up by them as on 29th June 2007 has been violated or disobeyed wilfully and deliberately or not. 24. There is much substance in the contention of Mr.Sakhare, learned Senior Counsel that the order of the Division Bench, if perused carefully and read as a whole does not issue any direction much less restraint order against the Corporation. The Corporation will not come into picture unless it is specifically alleged that the Corporation cannot scrutinise the application or permit utilisation of TDR or loading of the same by the builder/developer. However, assuming for a moment that Corporation does come in picture, yet the matter has been amply clarified 22 by the two affidavits of the Corporation. From a perusal of the record produced for my perusal, I am satisfied that there is no discrepancy as is mentioned in the order of the learned Judge. On a scrutiny and disposal of the application, permitting utilisation or loading of TDR are much prior to the order of the Division Bench and there is nothing which would indicate that the Corporation has permitted utilisation or loading of TDR contrary to the order of the Division Bench. Contempt petition must, therefore, fail for obvious reasons against the Corporation and its officers. 25. However, this does not absolve the Corporation from their liabilities and obligations under the B.M.C. Act and M.R.T.P. Act so also the D.C.Regulations. That is a matter which touches the merits of the controversy and if there actions including their orders and certificates are found ultimately to 23 be in contravention of these Statutes or any provisions therein, then, all consequences shall follow, irrespective of this conclusion. 26. I am keeping all the contentions of parties in the writ petition as far as above aspects, specifically open. 27. The affidavit filed by respondent No.5 clarifies the position with regard to cases that are being referred to in the contempt petition. As far as the first breach is concerned, it is alleged that the 5th respondent sold balance TDR/FSI shown in DRC No.SRA/637/Rehab of 1380 sq.mtrs. after passing of the order dated 5th June 2007 and the DRC copy issued on 18th April 2007 and 20th June 2007 in respect of the said TDR/FSI shows that the publication entry dated 16th April 2007 is a back dated one. 28. The Corporation in the affidavit in reply 24 and also by producing the record has pointed out that on 15th December 2006, certain details regarding the property where DRCs proposed to be utilised i.e. receiving the plot have been forwarded to it. The name and address of the utiliser is shown as Prabhakar Salian and Harish Patel, the constituted attorney of the owner. The Building File No.CE 7893/WS/AK and reduced area of DRC in words and figures is 1380 sq.mtrs. The sanction is granted by the Director/ ES & P/3324/I on 29th January 2007. The Corporation has filed this affidavit and pointed out that the Executive Engineer, Building Proposal forwarded a proposal for utilisation of 849.49 sq.mtrs. from Slum DRC No.SRC 6374/Rehab and SRA/684/Construction of C.T.S. 203 at Village Vile Parle J.V.P.D. The file is forwarded under file number and received by the Chief Engineer on 20th March 2007. The application under the said file mentions "Paid Utilisation Fees". The concerned Executive Engineer submitted first 25 utilisation report dated 13th April 2007 allowing utilisation of FSI and showing deduction of the balance and the report was approved by the Director on 16th April 2007. The second report was submitted to the Director for endorsing utilisation and his final sanction was obtained vide approval dated 3rd May 2007. Thereafter, copies were forwarded to the Executive Engineer on 4th May 2007. Thereafter, there is a clarification given with regard to entry numbers 3 and 4. 29. As far as this aspect is concerned, the 5th respondent has filed his affidavit and Mr.Narula has relied upon a compilation as well. It is pointed out in the affidavit that the 5th respondent sold his rights under this DRC to Hiten Sheth under an agreement of January 2007 for a total consideration of Rs.67,81,320/-. Mr.Hiten Sheth deposited a sum of Rs.1 Crore with respondent No.5 on or about 25th June 2006. 26 After deducting the above amount, the balance was refunded and the entire transaction was over in March 2007 much prior to the order dated 29th June 2007. 30. With regard to this aspect, the affidavit in rejoinder of the petitioner is completely silent. In fact in para 9 of his sur-rejoinder filed on 3rd October 2008, all that the petitioner would state is that the orders of this Court are binding on all the persons claiming through or under respondent Nos. 5 and 6. 31. Now, this aspect cannot be looked into in contempt jurisdiction. The order stands by itself. The order must be taken as it stands and it speaks for itself. There is no scope for adding into it nor implying anything. If respondent Nos. 5 and 6 have indeed transferred their rights and persons claiming through them 27 are also bound by the orders of this Court, then, these matters are something which can be highlighted by the petitioner at the hearing of the main petition when all persons who are claiming through respondent Nos. 5 and 6 are not before the Court, then it will not be proper to record any finding with regard to any mandate flowing from the order or the order binding persons claiming through respondent Nos. 5 and 6. For my purpose, suffice it to state that the details with regard to the alleged contempt set out in para 21(1) have been clarified on affidavit by both respondents and, that clarification has not been disputed. In such circumstances, the first act of contempt allegedly committed does not deserve to be accepted. 32. The second act alleged in para 21 (ii) pertains to the structures on which FSI has been permitted to be loaded. It is alleged that 28 respondent Nos.1 to 4 i.e. Corporation and its officers have permitted utilisation of TDR/FSI/1084 in the layout of respondent No.5, whose numbers are set out in para 21(2). Instead of restraining the respondent No.5 developer, they have allowed him to utilise this TDR/FSI and the proposal numbers are mentioned. 33. Once again, this aspect has been clarified by the Corporation the affidavit and there is no reason to disbelieve the version appearing in the affidavit which is substantiated by the files. Even the 5th respondent has sufficiently clarified the matter. He has stated on affidavit that the said proposals are in no way forwarded or granted contrary to the order passed by the