2006(6) ALL MR 101
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR, J.
Saurashtra Vanza Gnyati Yuvak Mandal & Anr.Vs.Municipal Corporation Of Gr. Bombay & Ors.
Contempt Petition No.59 of 2006,First Appeal No.1812 of 2005
4th August, 2006
Contempt of Courts Act (1971), Ss.2, 12 - Constitution of India, Art.215 - Rules framed under Art.215 by High Court of Bombay, Rule 8(1) - Order passed under R.8(1) - In such case, show cause notice to be issued by Registry necessarily will have to be in terms of Form I - Notice not in accordance with Form - Directed to be given again.
Ordinarily, when the matter is proceeded as per the Rules by issuance of Notice in Form I there are only two stages of hearing. One, preliminary hearing and two, final hearing. In such cases there is no provision for filing short reply affidavit and later on detailed reply affidavit or need to issue fresh formal show cause notice to the person charged with the contempt as to why he should not be punished for having committed contempt.
When order passed at the preliminary hearing of the Petition records "issue notice", as has been passed in this case, it presupposes that the Court has expressed its intention to proceed with the contempt action and which order is referable to order under Rule 8(1). In such case, show-cause notice to be issued by the Registry necessarily will have to be in terms of Form I. On the returnable date, the Court may proceed to hear the matter finally or may choose to assign some other date for hearing. On service of such Notice in Form I, the contemner against whom such notice is issued, is obliged to remain present in Court on every such date unless his presence is dispensed with by the Court. (2000)3 SCC 171 and AIR 2001 SC 2763 - Referred to. [Para 12,15]
2. This Petition is to initiate action against Respondents 2, 3 and 4 for having committed wilful breach of the order passed by this Court dated 14th July, 2005. Briefly stated, the Corporation issued notice under Section 299 of the Mumbai Municipal Corporation Act in respect of the disputed structure. That action was challenged by the Petitioners by way of Suit being Suit No.2993 of 2001 before the City Civil Court. The said Suit came to be dismissed on 12th July, 2005. The Petitioners prayed for stay to enable the Petitioners to take up the matter in Appeal. However, that prayer was rejected by the Trial Court. The Petitioners accordingly rushed to this Court and filed First Appeal being First Appeal (Stamp) No.16139 of 2005 on 13th July, 2005. However, as there was no interim protection in respect of the suit structure, the Officials of the Corporation proceeded to demolish the same on 13th July, 2005. In this backdrop, the Petitioners moved Civil Application (Stamp) No.16287 of 2005 before this Court placing on record that the concerned Officials have demolished the suit structure on 13th July, 2005. The Petitioners by the said Application have prayed that the Respondent No.1 Corporation be directed to reconstruct the two W.C. and one bathroom situated at Saurashtra Vanza Gnyati Yuvak Mandal, Gnatiniwadi, Mathuradas Road, Kandivali (West), Mumbai-67 and in the alternative, the Petitioners may be permitted to reconstruct the same. This Application was moved before the learned Single Judge of this Court on 14th July, 2005. The Court passed the following order on the said application:
"MENTIONED NOT ON BOARD.
Heard the learned advocate for the applicants. Notice to respondents. Returnable after six weeks.
In the meantime parties shall maintain status quo with regard to the suit properties as on today.
In the meantime the office objections to be removed and the appeal shall be placed on board after six weeks." [emphasis supplied]
3. The grievance in this Petition is that inspite of knowledge of status-quo order passed by this Court, the contemnors who are Officials of Respondent Corporation, proceeded with the work of removing the debris lying on the site accumulated on account of demolition of the suit structure and later on started excavation work and completed construction of gutter/drainage line. The Petitioners have relied on photographs taken from time to time of such work undertaken at the instance of the contemnors till the filing of the present Contempt Petition. In other words, the case of the Petitioners is that, inspite of knowledge of order of status-quo, the Officials proceeded with further work on the suit site, in utter disregard of the order of status-quo. Relevant averments can be discerned from Paragraphs 10 and 11 of the Memo of Contempt Petition which read thus:
"10. Recently on 7th January, 2006, the Respondent No.2 Shri. Apte alongwith other officers/servants and employees of the Respondent No.1, in violation and breach of the status quo order have removed all the debris and carried out further digging work and have completed construction of gutter/drainage line. Hereto annexed and marked Exhibits 'F' to 'F2' are the copies of the photographs taken between 7th January, 2005, to 13th January, 2006, showing construction. By carrying out further digging operation, Construction of gutter/drainage line, levelling of the land, removing the debris have committed contempt of order of status quo passed by this Honourable Court. The Respondents are, therefore, disobeying the Orders of this Honourable Court and have committed gross violation and the Respondents have no respect to the orders of this Honourable Court. The Officers of the Respondent No.1 alongwith Respondent No.2 were personally present on site and it is under their supervision that the work was done and they had full knowledge of the status quo order of this Honourable Court, infact repeatedly they were shown the order of the Court, but it is unfortunate that they are not bothered and have told the petitioner that they have instructions of their superior officers and they are doing the work and hence have committed contempt.
11. The Petitioners state that the said Contempt has been made and/or the said work has been carried out at the instructions of the Respondent Nos.2 to 4. In fact the Respondent Nos.3 and 4 on number of occasion have called upon the Trustees of the Petitioners and warned them not to take any action against them failing which they shall be taking further demolition action of the remaining structure on site. The Petitioners and the Trustees are being threatened with dire consequences repeatedly. The action of the Respondent Nos.2 and 3 is totally high handed and illegal. The respondent nos.2 to 4 have repeatedly told the Petitioners and their Trustees that they don't bother for the Court Injunction and in many matters they have faced contempt petition. The Petitioners submit that the act of the Respondent Nos.2 to 4 is totally high handed, illegal and amounts to contempt of court's order."
4. This Contempt Petition was placed for preliminary hearing on February 24, 2006 when this Court, after hearing the counsel for the Petitioners, ordered issuance of Notice to the contemnors. Pursuant to the said order, Office has issued Notice to the Respondents/contemnors. The same reads thus:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, CIVIL JURISDICTION
CONTEMPT PETITION NO.59 OF 2006
(Under Contempt of Court’s Act)
FIRST APPEAL NO.1812 OF 2005
Saurashtra Vanza Gnyati Yuvak Mandal and anr. ...Petitioners
1) Municipal Corpn. of Gr. Bombay and others. ...Respondents
1) Municipal Corporation of Greater Bombay, Head Office at Mahapalika Marg, Fort, Mumbai-1.
2) Shri. Apte, Junior Engineer, R/South Ward, Bombay Municipal Corporation, Kandivli (West), Mumbai.
3) Shri. Ahire, Junior Engineer, R/South Ward, Bombay Municipal Corporation, Kandivli (West), Mumbai.
4) Mr. Dhakane, Assistant Municipal Commissioner (Ward Officer), R/South Ward, Bombay Municipal Corporation, Kandivli (West), Mumbai.
5) Girish Bhogendra Kamothi,
6) Dilip narshibhai Khorasiya,
7) Mukesh Keshavji Gohel,
8) Tulsidas Jagjivan Khorasiya Nos.5 to 8 Trustees of Petitioner No.1, having their Address at Saurashtra Vanza Gnyati Yuvak Mandal, Ghatiniwadi, Mathuradas Road, Kandivli (West), Mumbai-67.
WHEREAS the above named Petitioner has presented Contempt Petition through his Advocate Shri D.R. Shah, praying for taking action under Contempt of Court’s Act against you; as stated in the copy of the Contempt Petition, which is already served upon you.
AND WHEREAS the same having been registered in this Court as Contempt Petition and upon hearing Shri. Anil Singh with D. R. Shah, Advocate for the petitioner, Mr. Bhor for BMC, this Court (Coram:- A.M. Khanwilkar, J.) having on 24/02/2006, passed the following order:-
“1. Issue Notice returnable on 28-3-2006.
2. In addition, the petitioners shall serve the concerned respondents by advocate’s notice, either personally or by courier/speed post/e-mail/fax and file an affidavit of service before the returnable date.”
TAKE THEREFORE NOTICE THAT the admission of the said Contempt Petition will take place on 28/03/2006; on which date you shall appear in person before this Court and shall continue to remain present during admission on all subsequent dates to which this Court may seem convenient to fix the matter till the proceeding is finally disposed of by the order of the Court and to show cause as to why this Contempt petition should not be admitted.
In case of your failure to appear as directed above, this Court shall proceed to pass such orders as may deem fit and proper.
WITNESS Shri. V. G. Palshikar, Acting Chief Justice at Bombay aforesaid, this 24th day of February, 2006.
By order and in the name of the Court,
For Registrar, Judicial.”
It is not in dispute that on service of the notice the contemnors have entered appearance and also filed affidavits in reply to this Petition. On the basis of pleadings already on record, it was open to the Court to consider the rival stand so as to determine the matter of the charges and record appropriate findings and dispose of the Petition.
5. Counsel for the contemnors, however, placing reliance on the Notice served on the contemnors, contends that the contemnors were required to file only short reply taking such stand as may be permissible to oppose admission of the Contempt Petition. Further, the Court can finally dispose of the Contempt Petition only after formal show-cause notice is issued as to why the contemnors should not be punished for having committed civil contempt.
6. In my opinion, this argument will have to be answered with reference to the provisions in the Rules framed by our High Court to regulate proceedings for contempt under Article 215 of the Constitution of India and the Contempt of Courts Act, 1971 (hereinafter referred to as "the said Rules" for the sake of brevity). In the present case, the action is instituted by an aggrieved private party in terms of Rule 5(c) for proceeding against the Respondents/contemnors having committed civil contempt. I shall now refer to the relevant rules which would govern the procedure of such Petition. Rule 6 provides that every Petition for initiating proceedings of contempt of Court shall be registered as Contempt Petition; the initiator to be described as Petitioner and the Opposite Party as Respondent. Rule 7 makes provision for the contents and accompaniments of such Petition and requirement of filing affidavit in support therewith. The Petition then proceeds as per Rule 8. Rule 8 reads thus:
"8.(1) Every Petition or Reference under Rule 5(b), (c), (d) or (e) shall on being filed or received be forthwith posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that a prima facie case has been made out for issue of notice, may issue such notice to the Contemnor and, if not so satisfied may dismiss the Petition.
(2) The Court may, if it thinks it absolutely necessary to do so, and where the Court is of the opinion that mere service of Notice, will not secure the presence of the Contemnor, along with issue of Notice also issue a bailable or non-bailable warrant for arrest of the contemnor."
7. At the preliminary hearing of the Petition if the Court orders issuance of notice to the contemnors, such order is referable to order under Rule 8(1). In that case, in terms of Rule 9(1), the Registry is "obliged" to issue notice as per Form I of the Rules. Form I reads thus:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CONTEMPT PETITION No........
Whereas upon considering the material before it, Honourable Court is satisfied that there exists a prima facie case for issuance of a notice for considering action under Contempt of Courts Act against you;
Whereas the above named petitioner/s has/have presented Contempt Petition through his/her/their Advocate S/Shri. ..................... praying for taking action under Contempt of Courts Act against you;
Whereas a reference is made to this Hon’ble High Court by ..............; a Court subordinate to the Hon’ble High Court, praying for taking action under Contempt of Courts Act against you;
As stated in the accompanying copy of-
(a) Material relied upon i.e.......
(b) and (c) copy of Contempt Petition.
(d) and (e) a copy of reference.
And whereas the same having been registered in this Court as Contempt Petition and this Court having on the .... day of ..............199....... passed the following order:-
‘.............................. ............................... ...............................’
Take therefore notice that the aforesaid Contempt Petition has been fixed for hearing on the ....... day of ...... 199 ....., on which date you shall appear in person before this Court and shall continue to remain present during hearing on all subsequent dates to which this Court may seem convenient to fix the matter, till the proceeding is finally disposed off by the order of the Court; and
To show cause as to why the action under Contempt of Courts Act should not be taken against you.
In case of your failure to appear as directed above and to show cause, this Court shall proceed to pass such orders as may deem fit and proper.
Witness Shri. ............... Chief Justice at Bombay, aforesaid this ...... day of ................... 199.......
By order and in the name of the Court,
(Additional Registrar, Judicial).”
8. As soon as Notice as per Form I is served on the contemnor, the contemnor is obliged to abide by the directions regarding personal appearance before the Court at the hearing as noted in the said notice as well as Rule 9 and Rule 20. The contemnor has to file reply by way of affidavit(s) within fourteen days from the service of such notice or within such time as the Court may fix, in terms of Rule 10. Rule 11 expressly provides that no further affidavit or document shall be filed except with the leave of the Court. Rule 12 applies to Reference made by the subordinate Court under Section 15(2) of the Act, which has no application to Petition under Rule 5(c). Similarly, Rule 14 deals with Petition made by the Advocate General under Section 15(2) of the Act. Even this Rule has no application to Petition under Rule 5(c). Rule 13 expressly authorises the High Court to direct the subordinate Court to investigate into question of fact and make report in an appropriate case if it considers necessary to do so. It is not necessary to elaborate on the other provisions regarding preparation of number of copies of the Paper Book (Rule 15); authority of the Court to direct the Advocate General to appear and assist the Court (Rule 16); modality to deal with absconding persons charged with contempt or is otherwise evading service of notice (Rule 17); Court's power to pass appropriate order including order as to costs (Rule 18); of power of Court to dispense with the personal attendance of the person charged etc. (Rule 20); of releasing the person charged with contempt on bail (Rule 21); pertaining to grant of copies, process fees etc. (Rule 23); of filing of Petition/Reference on the Original Side and Appellate Side as the case may be (Rule 25); and steps to be taken by the office on person charged with contempt is adjudged guilty and is sentenced (Rule 26).
9. We shall now advert to the Scheme regarding mode and manner of service of Notice as per Form I issued in terms of order under Rule 8(1). Rule 19(a) provides that every such Notice shall be accompanied by a copy of the Petition with the copies of affidavits, if any. Rule 19(b) stipulates that such Notice shall be signed and dated by the Prothonotary or Officer on Special Duty or Assistant Registrar and shall be sealed with the seal of the Court. Rule 19(c) provides that such Notice shall be served personally on the person charged, unless the Court for reasons to be recorded, directs otherwise. It is further provided that in that case, service may be effected in the manner provided under the Code of Civil Procedure and/or the Rules of the Court for service of process.
10. The provision regarding enquiry is found in Rule 22. Rule 22(a) envisages that after a person charged with contempt is served with the Notice, to file an Affidavit in support of his defence on the date fixed for his appearance or on such other date as may be fixed by the Court in that behalf (also read Rule 10 and Rule 11). Rule 22(b) provides that if such person pleads guilty to the charge, his plea shall be recorded and the Court may convict him thereon. Rule 22(c) deals with cases other than covered by Rule 22(b), wherein the Court would proceed to determine the matter of the charges either on the affidavits filed or after taking such further evidence as it deems fit and pass such orders as it thinks fit. Rule 24 mandates that every Petition or Reference in respect of civil contempt including civil contempt of a subordinate Court shall be heard and disposed of by a single Judge.
11. From the Scheme of the relevant Rules, it is abundantly clear that essentially there are "only two stages" of hearing of the Petition. The first is, preliminary hearing of the Petition immediately after its institution. That stage is ascribable to Rule 8(1). At this stage, if the Court, upon hearing the Petitioner, passes any other order than the one of dismissal of the Petition, such as - "Issue Notice", "Admit", "Rule", "Issue show cause why the action under Contempt of Courts Act should not be taken against you" etc., that will be an order under Rule 8(1) to proceed in the matter against the person charged with the contempt. In that case, the Office/Registry is obliged to issue Notice under Form I "only". The only other situation that can be conceived of to issue any other form of Notice is an order passed by the Court observing "Issue notice before admission". For, such order is passed by the Court when the Court is not certain whether to proceed against the person charged with the contempt or, for that matter, to dismiss the Petition or even when the Court thinks of giving opportunity to the person to remedy the mischief and not to formally proceed with the action till the opposite party is heard. In the latter cases the Court consciously departs from the normal rule of passing one of the two types of order under Rule 8(1), namely, of dismissal of the Petition or of directing issuance of Notice (in Form I) to proceed against the person charged with contempt. In these set of cases when the Respondent enters appearance before the Court after service of Notice (other than in Form I), the Court after hearing the parties may either dismiss the Petition or decide to proceed against the concerned Respondent charged with the contempt. On such order being passed, the same would be ascribable to order under Rule 8(1).
12. The only other stage or second stage of hearing as per Rules is, if I may say so, final hearing of the Petition and to pass appropriate order as may be warranted in the fact situation of the case. It can be one of recording finding of guilt and impose sentence or otherwise. Apriori, there is no other intervening stage of "hearing" envisaged by the Rules as formulated. Indeed, there can be situation where Court thinks that it is necessary to take such further evidence [see Rule 22(c)] or direct the subordinate Court to investigate into question of fact and make a report (Rule 13). Ordinarily, therefore, when the matter is proceeded as per the Rules by issuance of Notice in Form I there are only two stages of hearing. One, preliminary hearing and two, final hearing. In such cases there is no provision for filing short reply affidavit and later on detailed reply affidavit or need to issue fresh formal show cause notice to the person charged with the contempt as to why he should not be punished for having committed contempt.
13. In the present case, although the order passed at the preliminary hearing of the Petition was to issue notice ascribable to order under Rule 8(1), the Notice as has been served on the contemnors is not in conformity with the notice in Form I of the Rules. I am at a loss to understand as to why the Office has departed from the procedure provided under the Rules. It would have been a different matter if the order passed at the preliminary hearing was to "issue notice before admission" of the Petition. In that case alone, the Registry could have issued notice other than the form of Notice prescribed in Form I.
14. The counsel for the Respondents had relied on decision of the Apex Court in the case of Om Prakash Jaiswal Vs. D. K. Mitthal & Anr. Reported in (2000)3 SCC 171 [Para 15 thereof] to contend that expression "admit", "rule", "issue notice" or "issue notice to show cause why proceedings for contempt be not initiated", cannot be the basis to proceed in the matter, as if the Court has expressed prima facie opinion about necessity of initiating contempt action against the contemnor. In the first place the observations in the said decision in paragraph 15 were in the context of examining the purport of expression "initiation of contempt action". Moreover, in the subsequent Judgment of the Apex Court of larger Bench, in the case of Pallav Sheth Vs. Custodian and others reported in AIR 2001 SC 2763, the correctness of the abovesaid view taken in Om Prakash Jaiswal's case (supra) was specifically put in issue as can be discerned from Para 29 of the latter decision. In Paragraph 42 in the case of Pallav Sheth's case (supra) (supra), the larger Bench has expressly overruled the opinion recorded in the earlier decision in Om Prakash Jaiswal's case (supra).
15. Accordingly, I have no hesitation in taking the view that when order passed at the preliminary hearing of the Petition records "issue notice", as has been passed in this case, it presupposes that the Court has expressed its intention to proceed with the contempt action and which order is referable to order under Rule 8(1). In such case, show-cause notice to be issued by the Registry necessarily will have to be in terms of Form I. On the returnable date, the Court may proceed to hear the matter finally or may choose to assign some other date for hearing. On service of such Notice in Form I, the contemner against whom such notice is issued, is obliged to remain present in Court on every such date unless his presence is dispensed with by the Court.
16. As has been observed earlier, Office has issued incorrect notice to the Respondents/contemnors. The Office will have to issue fresh notice to the Respondents/contemnors in terms of Form I of the Rules. The concerned Respondent No.4, who is present in Court waives notice. Although the Respondents have already filed reply affidavit in terms of the earlier notice served on them, as fresh notice is issued by this order as the litigant should not suffer for the mistake of the Court and the Respondents/contemnors insist that they may like to file further affidavit(s), the Respondents are given 14 days time from today to file such affidavit(s).
18. While parting, I may mention that for the technical lapse committed by the Office, the matter cannot be finally disposed of today, though, the pleadings are already on record for deciding the points in issue and I had the benefit of hearing both the Counsel at length.
19. During the course of arguments, it was pointed out by Counsel for the Respondent No.2 that the name mentioned in the cause title as Shri. Apte, Junior Engineer, is incorrect. There is no Officer by that name in R/South Ward. It is, however, accepted that Shri Aniket Shinde was the Junior Engineer in R/South Ward at the relevant time. It will be open to the Petitioners to carry out necessary amendment in the cause title to give the correct name of the concerned Junior Engineer. Amendment be carried out in the course of the day.
20. Accordingly, issue show-cause notice in Form I to the newly named Respondent No.2 Shri. Aniket Shinde, and Respondent No.4, made returnable on 22nd August, 2006. The Respondent No.4 is present in Court and waives Notice.
21. During the course of arguments, it was further pointed out that the name of Respondent No.3 as mentioned in the cause title is incorrect. The correct name of the concerned Junior Engineer, R/South Ward is Shri. Vijay Shankar Aher. The said Shri. Vijay Shankar Aher has filed affidavit before this Court pointing out that he was working as Junior Engineer (B & F), R/South Ward at the relevant time. It is, however, stated in Paragraph 5 of the affidavit dated 21st July, 2006 that he was not concerned with any activities connecting with roads, construction of drainage, repairs and excavation etc. which is carried out by the staff of Maintenance Department. No rejoinder affidavit has been filed to counter this position. Therefore, there is no reason to doubt the correctness of this statement. If the said Vijay Shankar Aher, Junior Engineer (B & F), R/South Ward was in no way connected with the clearance of debris or for that matter, excavation and completion of drainage line/gutter work, the action against said person cannot be continued. Accordingly, notice issued to Respondent No.3, which was intended to be issued to Vijay Shankar Aher is discharged. Respondent No.3 be deleted from the array of parties in view of this order. That amendment be carried out in the course of the day.
22. It is clarified that show-cause notice in terms of Rule 8(1) specified in Form I of the Rules issued only to newly named Respondent No.2 and Respondent No.4 respectively, returnable on 22nd August, 2006.
24. Copy of this order be forwarded to the Registrar General. The Registrar General shall issue direction to the concerned department to ensure that proper notices are sent to the Respondents/contemnors in future in view of the observations in this judgment.