1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.905 OF 2003 IN CONTEMPT PETITION NO.94 OF 2002 IN WRIT PETITION NO.2600 OF 2001 ALONGWITH SHOW CAUSE NOTICE NO.222 OF 2002 IN CONTEMPT PETITION NO.94 OF 2002 Shri.A.B.Narode. ...Appellant vs. 1.Dayabhai Shambhu Gala & ors. ...Respondents AND APPEAL NO.911 OF 2003 IN CONTEMPT PETITION NO.94 OF 2002 IN WRIT PETITION NO.2600 OF 2001 ALONGWITH SHOW CAUSE NOTICE NO.222 OF 2002 IN CONTEMPT PETITION NO.94 OF 2002 1.Lydia Co-operative Housing Society Ltd. & another. ...Appellants Vs. 1.Dayabhai Shambhu Gala & ors. ...Respondents. --- Mr.U.J.Makhija @ B.B.Saraf & Hemant Shah, Neel Pungaliya i/b. M/s.I.C.Legal, for appellant in APP 2 905/03 & for Respondent no.4 in APP 911/03. Mr.D.D.Madan i/b.Bharat Joshi, for Applnt. In APP 911/03. Mr.V.A.Thorat @ S.A.Sugdare i/b. A.C.Patki, for Respondents 1 to 3 in both appeals. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 4th February,2009. P.C.:- 1. In both the appeals, same order passed by the learned Single Judge is challenged, therefore, both the appeals can be conveniently disposed of by a common order. The relevant facts are that one co- operative society by name Lydia Co-operative Housing Society which is one of the appellants in these two appeals, filed a dispute being Dispute No.CC-II/152 OF 2001 before the IInd Co-operative Court, Bombay. To that dispute Mr.Dayabhai Shambhu Gala, Mr.Arvind Dayabhai Gala and Mr.Shantilal Dayabhai Gala (hereinafter referred to as “Galas”) were joined as opponents. Final reliefs were sought from the Co- operative Court in the following terms:- 3 “(a) It be declared that the opponents are not entitled to put up any extension construction shed, roof outside or in front of Shop no.3 and further to use any such portion as described above or any portion or part of compulsory open-space for any business activities in any manner or for keeping or storing or displaying any goods, paraphernalia, articles, furnitures, machines, grills, platforms, counters, show cases, wooden plys (movable or fixed) in front of or outside (In extension, shed, caves, under roof or otherwise) or obstruct interfere from of western side entrance to the lift of the building compulsory open space in any manner the shop no.3, Ground floor, Lydia co-op.Soc.Ltd., 43, Hill Road, Bandra West, Mumbai-400050. (b) The opponents, their servants, Employees agents be restrained by the Permanent order and Injunction of this Honourable Court from putting up carrying out any unauthorized extension construction in front of or outside the shop no.3 walls, platforms, Cantilever roofs, display Boards in any manner, and also be restrained from keeping storing, displaying goods, Machines, articles Platforms, AC, M.S. Displays Grills, Counters, show-cases, Wooden 4 Plys, furnitures and fixtures (movable or fixed) in any manner in front of or outside Shop no.3 or to obstruct, block interfere the western side entrance to the lift of the building in compulsory open space in any manner, on Ground floor of Lydia building, 43/Hill Road, Bandra (West), Mumbai-400050.” In paragraph (2) of the dispute, it is stated by the Society that shop no.3 which is purchased by Galas admeasures about 282 sq.ft. and that shop is situated in the building of the above referred co- operative Society. A sanctioned building plan of the ground floor of the building was also annexed to the Dispute in support of the claim that the area of shop no.3 is 282 sq.ft. It appears that the Municipal Corporation on 19.5.2001 issued a notice under Section 354A of the Bombay Municipal Corporation Act to Galas for demolition of certain construction which, according to the Corporation, was made by them unauthorizedly. Therefore, a petition was filed by the petitioners-Galas. That petition was disposed of by the Division Bench by order dated 5.11.2001. Paragraph nos.2 and 3 of that order are relevant, they read as under:- 5 “2. The grievance in this petition is about the Municipal Notice dated 19.5.2001 issued under Section 354-A of the BMC Act. It is submitted that the earlier weather shed was permitted. There is no execution of any additional work and inspite of that, certain demolition has taken place in pursuance of that Notice. 3. We have noted from the petition that the shop was supposed to be of 390 sq.ft. On the ground floor. The Municipal Corporation will, therefore, be entitled to remove every thing outside that 390 sq.ft. encroaching upon the adjoining open space. The grievance of the petitioners is that this entire action is initiated at the instance of the adjoining shop owner i.e. respondent no.4. The Municipal Corporation will be at liberty to remove all the protrusions made by the adjoining shop owner also. In fact, they are expected to do that, alongwith whatever action they take against the petitioners. The action will, of course, be as per the building plan. In view of the above, the petition is dismissed.“ 2. Perusal of this order shows that the Court dismissed the petition. It appears that thereafter in 6 the dispute that was filed by the petitioner, an application for interim relief was taken up for consideration by the Judge of the Co-operative Court. That application was decided by the Judge of the Co- operative Court by order dated 20.8.2002. In that order, an interim order was made restraining Galas from putting up and carrying out any unauthorised construction in front or outside the shop no.3. The operative part of the order reads as under:- “2. The opponents are hereby restrained from putting up carrying out any unauthorized extension, construction in front of or outside the Shop No.3 walls, platforms, cantilever roofs, display boards in any manner and also restrained from keeping, storing, displaying goods, machines, articles, platforms, M.S. Displays grills, counters, show causes, wooden plys, furniture and fixtures (movable or fixed) in any manner in front of or outside Shop no.3 or to obstruct, block interfere the western side entrance to the lift of the building in the compulsory open space in any manner till final decision of the dispute.” In paragraph (8) of the order, the Co-operative Court 7 recorded a prima facie finding that the area of the shop no.3 is 282 sq.ft. Paragraph (8) of the order of the Co-operative Court reads as under:- “8. In the present dispute as well as in interim application both the parties have seriously disputed the question of the area of the Shop no.3 in the building of the Society. The copy of first sanctioned Plan Ex.A to dispute apparently shows position of the floor plan of the ground floor premises of the society building. It is apparently seen that the area of the Shop no.3 is admeasuring 282 sq.ft. It is seen from the copy of Agreement annexed to the reply of the Opponents that it has annexed the plan of the shops at ground floor. Apparently in the said agreement area of Shop no.3 is not shown. The plan annexed to the said agreement clearly shows that there is open space premises in front of the Shop No.3 to the opponents. The copies of notices issue by B.M.C. an order of demolition by Deputy Municipal Commissioner at Page no.41 and 45 of the compilation at Ex.17 apparently shows unauthorized construction by Opponent. The B.M.C. drawn the sketch book side of the said Notice dated 10.2.88. The order of the Deputy 8 Municipal Commissioner was issued to the Opponent to remove the unauthorized extensions of Shop No.3 another notice issued by BMC dated 26.2.91 is at Page no.47. In the second notice dated 26.2.91 the sketch on backside apparently show the extended portion in front of Shop no.3. The BMC given details and description in respect of alleged, extended construction portion of Shop no.3. There are also other documentary evidence before the Court in which apparently seen that the area of the shop is 282 sq.ft. and there was unauthorized construction extension by the Opponent in front of Shop no.3.” 3. After this order was passed, a contempt petition was filed before this Court by Galas which was registered as Contempt Petition no.94 of 2002. To that petition, the Co-operative Society was joined as respondent no.1, the Secretary of the Society who was also the owner of the shop adjoining to shop no.3 was joined as respondent no.4, the Judge of the Co- operative Court who passed the interim order was joined as respondent no.2. An action under the Contempt of Courts Act against the respondent no.2 – Judge of the Co-operative Court was claimed in terms prayer clause (a) and an action under the Contempt of 9 Courts Act against the Society and its secretary was claimed in terms of prayer clause (b). An action was also claimed against the respondent nos.1, 2 and 4 in terms of prayer clause (e). Prayer clauses (a), (b) and (e) reads as under:- “(a) That this Hon'ble Court be pleased to issue show cause notice against the Respondent no.2 for committing contempt of court and for interfering in course of justice by not implementing and/or not considering in proper perspective the effect of the judgment and order dated 5th November,2001 in Writ Petition no.2600 of 2001 being Exhibit “F” hereto as regards the area of the suit shop and by coming to the wrong conclusion to overreach High Court Order dated 5th November,2001 regarding that the area of the suit shop and by granting injunction by judgment and order dated 20th August,2001 in Case No.CS/II/152 of 2001 deliberately creating confusion and anomaly and disregarding and ignoring the High Court's Order dated 5th November,2001 2nd Respondent has created conflict regarding the area of the suit shop contrary to the order of the High Court and has impliedly set aside and has violated the High Court's 10 order dated 5th November,2001 in Writ Petition no.2600 of 2001 and show cause notice be given to 2nd Respondent for purging the said contempt unconditional; (b) This Hon'ble Court be pleased to issue Show cause Notice against the Respondent no.1 and the Respondent No.4 for committing acts of contempt by deliberately interfering with the course of justice and not following the High Court's Order dated 5th November,2001 as well as filing false affidavits contrary to the statement on oath affidavits already filed by the Society in Writ Petition no.1529 of 1989 and creating confusion regarding the area of the suit shop deliberately by filing false affidavit and thereby willfully defying and disobeying order of the Hon'ble High Court dated 5th November,2001; (e) That this Hon'ble Court be pleased to commit Respondents nos.1, 2 and 4 as guilty of willful contempt and disregard of High Court by deliberately disobeying, defying and overreaching and/or impliedly setting aside and/or interfering with the course of justice by committing act of omitting to follow the judgment of the Hon'ble High Court 11 dated 5th November,2001 in Writ Petition No.2600 of 2001 as well as for ignoring statement on oath in para 7 of Writ Petition no.1529 of 1989 and deliberately trying to interfere with the course of justice by filing false affidavits with a view to willfully disobey the Hon'ble High Court's orders and the court proceedings filed on oath and by passing the said order dated 20th August, 2002 contrary to order of High Court and to prosecute and punish the Respondents no.1, 2 and 4 under the Contempt of Court's Act 1971 and Rules framed thereunder;” Perusal of the contempt petition shows that it was the case of the petitioners in the contempt petition that the Judge of the Co-operative Court in passing the interim order has disregarded the order made by the Division Bench of this Court dated 5.11.2001. It appears that in view of the controversy raised in the contempt petition, an application was made by the Corporation for clarification of the order dated 5.11.2001 before the Division Bench of this Court. That application was disposed of by order dated 31.10.2002. Paragraph (2) of that order is material which reads as under:- 12 “2. The center appears to as to whether the area of the shop of the Petitioners as per the Building Plan is 390 sq.ft. or 280 sq.ft. We are told that in a substantive dispute filed by the Co-operative Housing Society against the Petitioners, this issue has been squarely raised. This precipe seeks a clarification that the area of the shop premises is not 390 sq.ft. but is 280 sq.ft. as per the builder plan. We are told that in the proceedings filed by the Co-operative Society this issue has been squarely raised. That being the position, the proceeding will decide as to what is the authorized area of the Petitioners shop. We are also told that an order passed by the learned Single Judge of this Court is operating with respect to the premises of Petitioners whereunder status quo has already been directed to be maintained. In view of this, no further clarification is required. Precipe disposed of accordingly.” It is, thus, clear from the order quoted above that according to the Division Bench despite the order dated 5.11.2001, the Co-operative Court can decide the question was to what is the exact area of shop no.3. The contempt petition, it appears, was heard 13 by the learned Single Judge and disposed of by order dated 12.9.2003. The learned Single Judge has held that the Co-operative society, its secretary and the Judge of the Co-operative Court are guilty of having committed contempt of this Court and has imposed fine of Rs.2000/- on each of them. The Co-operative Society, its secretary and the Judge of the Co- operative Court are in appeal against that order. 4. The first submission made on behalf of the appellants is that if one goes through the allegations made in the contempt petition and the finding recorded by the learned Single Judge, it is clear that what was alleged against the respondents emerges as criminal contempt and what was found by the learned Single Judge is also criminal contempt, and therefore, a submission was made before the learned Single Judge that because what was alleged is criminal contempt and as the petition has been filed without obtaining consent of Advocate General before filing the contempt petition as required by the provisions of Bombay High Court (original side) Rules, the contempt petition is not maintainable and should be rejected. However, that contention though has been noted by the learned Single Judge, has not 14 been considered. It is submitted that the action of the Judge of the Co-operative Court is passing the interim order in an application filed before him and for that purpose recording a prima facie finding about the area of the shop cannot amount to disobedience of the order/judgment of the High Court, and therefore, it cannot amount to civil contempt. So far as the Co-operative Society and its secretary are concerned, they have not disobeyed any order made by this Court. It is submitted that the only order of this Court which was in issue was the order dated 5.11.2001 which does not issue any direction either against the Society or against its secretary. Therefore, there is no question of Society or its secretary disobeying any order made by this Court made in writ petition no.2600 of 2001. The appellants also relied on the judgment of the Supreme Court in the case “(2005)9 Supreme Court Cases 194, Bijayini Dash and others Vs. Loknath Mishra and others”. The learned Counsel appearing for original contempt petitioners who are respondents in these petitions supported the order passed by the learned Single Judge. According to him, the finding recorded by the learned Single Judge is that the appellants are guilty of civil contempt and therefore, the learned 15 Single Judge has jurisdiction to pass the order. According to him, because by the order dated 5.11.2001 this Court had directed the Corporation to demolish any encroachment on the adjoining open space outside 390 sq.ft., the Co-operative Court could not have recorded even prima facie finding that the area of shop is less than 390 sq.ft. According to the learned Counsel, the manner in which the proceedings were conducted by the Judge of the Co-operative Court clearly shows that he was interfering with the course of justice and disobeying the order of this Court and therefore, according to the learned Counsel, interference in the order passed by the learned Single Judge is not called for. 5. The terms “Civil Contempt” and the “Criminal contempt” are defined by Section 2 of the Contempt of Courts Act. Section 2(d) of the Contempt of Courts Act reads as under”- “2.Definitions.- In this Act, unless the context otherwise requires,- (a) “contempt of court” means civil contempt or criminal contempt; (b) “civil contempt” means wilful 16 disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; (d) “High Court” means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory.” 17 Bare perusal of the above quoted definition makes it clear that when any judgment, decree, direction, order, writ or other process of a court is wilfully breached or disobeyed then it amounts to civil contempt. Therefore, for that purpose it becomes necessary to find out whether by order dated 5.11.2001 this Court has issued any order or direction which could be disobeyed. It is clear from paragraph (3) of the order which we have quoted above that the operative part of the order is that the petition has been dismissed. Even the observations that the area of shop of the contempt petitioners is 390 sq.ft., is on the basis of the averments in the petition which was filed by the contempt petitioners themselves. By no stretch of imagination it can be said that there is a definite finding recorded by this Court either after contest by both the parties or because of concession or admission given by the parties that the area of the shop is 390 sq.ft. What has been done is that the Corporation has been given liberty to take action for removal of encroachment made by the petitioners as also by the adjoining shop owners in accordance with the building plan. It is, therefore, obvious that it was not the 18 intention of the Court that the area of shop no.3 mentioned in that order shall be taken as a final determination of the area of that shop. The position is clarified by the Court by its order dated 31.10.2002. The order that we have quoted above shows that, according to the Division Bench, the Co- operative Court is free to determine what was the area of shop no.3. The clarification once given will relate back to the date of the order. Therefore, it will have to be taken from the beginning when the order was made, it was the intention of the Division Bench to permit the co-operative Court, which had dispute pending before it which was filed much before the writ petition was filed before the High Court, to decide the question as to what is the exact area of shop no.3. If as per the order of the Division Bench despite the observation in its order that as per the averments in the petition area of shop no.3 is 390 sq.ft., the Co-operative Court was competent and free to decide the question as to the exact area of shop no.3, then obviously the co-operative Court had jurisdiction to come to a prima facie finding on that aspect for the purpose of deciding application filed before it for interim relief. It could not be said that by recording a prima facie finding that the area 19 of Shop no.3 is 280 sq.ft., the Co-operative Court has disobeyed the order of the Division Bench. In our opinion, therefore, considering the nature of the order dated 5.11.2001 which dismisses the petition filed by the original petitioners, there was no question of anybody disobeying that order. In our opinion, the appreciation of the order and the weightage given to that order by the Judge of the Co- operative Court cannot be faulted. The intention of the Division Bench was not to close the inquiry into the area of shop no.3 forever by observing that “we have noted from the Petition that the shop was supposed to be of 390 sq.ft. on the ground floor.” By no stretch of imagination this can be treated as final and determinative finding as to the area of the shop. In our opinion, the learned Single Judge has committed manifest error in considering the above referred finding as clear and final finding as regards the area of the shop. 6. Perusal of the order of the learned Single Judge shows that in paragraph (17), the learned Single Judge has recorded a finding that the actions of the appellants-contemnors are calculated to undermine public respect of the higher judiciary and 20 preservation of law and order. The learned Single Judge has also recorded a finding that “the attitude of contemnor no.2 shows that he certainly had more than a judicial interest in the dispute pending before him”. By no stretch of imagination it can be termed as the finding of civil contempt. Even in paragraph (25) of the order the learned Single Judge has observed thus:- “In the present case, there is no manner of doubt that contemnor no.2 had acted in a manner to interfere with the due course of justice by coming to the conclusion that all articles belonging to the Petitioners which encroached in and are beyond 282 sq.ft. should be removed.” The term “Criminal contempt” is defined by section 2 (c) of the Contempt of Courts Act, which has been quoted above. Findings recorded by the learned Single Judge if seen in the light of the definition of term “criminal contempt”, it becomes clear that the findings recorded by the learned Single Judge against the appellants are of criminal contempt. If that is so, in view of the provisions of Section 18 of the Contempt of Courts Act, the learned Single 21 Judge of this Court has no jurisdiction to entertain the petition which alleges criminal contempt. Section 18 of the Contempt of Courts Act reads as under:- “18. Hearing of cases of criminal contempt to be by Benches- (1) Every case of criminal contempt under section 15 shall be heard and determined by a Bench of not less than two Judges. (2) Sub-section (1) shall not apply to the Court of a Judicial Commissioner.” The learned Single Judge considering the nature of alleged complaint in the contempt petition could not have decided the same. In our opinion, the order of the learned Single Judge is liable to be set aside also on the ground that the learned Single Judge has omitted to decide the relevant and material aspect of the matter. In paragraph (11), the learned Single Judge has observed that “The learned Counsel then urged that the action was bad as the Petitioners had not obtained consent of the Advocate General prior to filing the contempt petition as required under Rule 22 1032 of the Bombay High Court (Original Side) Rules,1980.” The provision for obtaining prior consent of Advocate General for filing petition alleging criminal contempt is incorporated in the Rules framed by the High Court because of Section 15 of the Contempt of Courts Act. Perusal of Section 15 of the Act shows that in the case