9911796707
TMI Blog1999 (8) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged the notices given to them by the Vadodara Municipal Corporation by which they were required to remove the encroachment made by them within 15 days of the receipt of the notice, failing which the corporation informed them that it would remove their encroachments at their expenses. Shorn of the contentions on merits, the petitions were dismissed on merits. The learned single Judge refused to stay the operation of the order to enable the petitioners to approach the appellate forum and made the following order on request being made in that regard: The learned counsel for the petitioners have submitted that the petitioners desire to approach the appellate forum against this decision and furthermore there is monsoon season going and therefore, operation of this order may be stayed for some days to enable the petitioners to approach the appellate forum. The matter has been sufficiently prolonged and any further prolongation would be contrary to the final scheme which is approved by the apex Court and in respect of which it has been observed that there should not be proceedings which thwart the scheme. Any further interim relief would run contrary to the directions of the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and/or present position the District Judge, Vadodara, will depute one of the officers of his Court, who will visit the place and prepare Panchnama, if necessary, by taking help of his subordinates and including a photographer. Mr. Vakil, learned counsel for the applicants states that the applicants will pay necessary expenses for taking photographs and for other incidental expenses. It is also directed that if any of the applicants wants to go to his cabin for the purpose of assessing the situation and/or to take anything belonging to him, he will not be prevented by the respondent authorities. It is also open to such applicant to do so by getting the panchnama prepared. However, it is clarified that no construction will be made till further orders. Mr. H.S. Patel, Dy. Commissioner and Mr. A.B. Thorat, Law Officer of the Vadodara Municipal Corporation, to remain present in the Court on the returnable date. The Registry will send a copy of this order by fax message and/or any other mode to the District Judge, Vadodara, at the costs of the applicants. The order further reveals that Mr. H.S. Patel, the Deputy Municipal Commissioner of the Vadodara Municipal Corporation, respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendering his unconditional apology to this court, set out the circumstances in which the cabins were removed under the orders of the Commissioner, detailing the background of the litigation in connection with the removal of the cabins and orders made in the previous litigation which ultimately culminated in directions from the Supreme Court for framing a scheme for the city of Vadodara providing for hawking and non-hawking zones. In accordance with the same a scheme was framed and approved by this court. About the incident which led to the filing of these applications it was stated in para 12 as follows: I say that on 19th August 1997 the corporation-Advocate Shri P.G. Desai informed the Commissioner that representatives of the petitioners want to meet the Municipal Commissioner on 20th August 1997 and accordingly, the Commissioner agreed to meet the representatives of the petitioners. On 20th August 1997, the Commissioner remained in the office from 08.30 a.m. I was present before this Honourable Court and this matter was called out at 12.15 p.m. The learned advocate for the petitioners requested to keep this matter back. During this time, we contacted the Municipal Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion officers including me and the Commissioner, have acted bonafide in good faith in the interest of city. I say that if anything taken otherwise, as we acted bonafidely in this case, we may kindly be excused. Further I say and submit that on 20th September no oral or written orders regarding status quo was passed by the Honourable Court and to my knowledge no proceedings was drawn by the Court to that effect. On the contrary, I respectfully submit that till date corporation has obeyed all the oral and written orders passed by the court in this regard and therefore, there is no question of willfully defying the orders of this Court. A rejoinder was filed on behalf of the applicant. 6. Respondent No. 2A at the first instance filed her affidavit on behalf of the corporation on 10.9.97. In this affidavit asserting that she holds this Honourable Court in high esteem submitted unconditional apology. It was further stated in the affidavit that all actions taken by her for the corporation and for the City of Vadodara were bonafide and in public interest. It was further stated that in view of the facts and circumstances the action was necessary and it was the obligatory duty of the corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In the later part of the affidavit expressing regret she explained her statement made in her earlier affidavits about the issue whether any undertaking was given to the court explaining the fact what made her to make the previous statement in the affidavit. It was averred, I sincerely regret that the aforesaid actions were in breach of the statements made by the learned counsel on behalf of the Municipal Corporation that no action for demolition of cabins will be taken till 21st August, 1997 and I sincerely and unconditionally apologise for the breach of the aforesaid statement. 10. Mr. H.S.Patel respondent no. 1 in the affidavit dated 9.7.99. In this affidavit he has stated that I regret that the action of 21.8.97 was breach of the statement made before this court by the learned advocate for the corporation and I sincerely and unconditional apologise for the same. 11. As noticed above respondent No. 5 B.S. Sarvaiya, District Supdt. of Police, Vadodara who was working at the relevant date as Assistant Commissioner of Police Baroda City filed his affidavit and in his affidavit without adding anything more he has stated that I regret whatever was happened on the date of the incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in all of the previous proceedings but amalgam of different groups from previous litigation, numbering small or big, and also those who were themselves not party to any litigation but claim to be representatives of earlier litigating parties. The history of litigation, we shall be viewing in the present context without referring to any particular petitioner. In 1958 some suits were filed by erstwhile cabin holders challenging the right of Baroda Municipality to evict the plaintiffs alleging themselves to be tenants which resulted in dismissal at the level of the Trial Court. But they partly succeeded in appeal before the District Court which held the right of Municipality to evict the occupants under them. 19.8.1999 16. As illustration, Civil Suit No. 1773/58 filed in CJ (SD) in representative capacity alleging that Municipality Board has no right to invoke provisions of Municipal Boroughs Act as total area in question did not vest in municipality and it had no right to realise lease money from the occupants. The said suit along with two cognate suits were dismissed by trial court holding that plaintiffs were estopped from denying title of Municipality. On appeal, the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s directly filed before the apex court on 2.5.86 in following terms: 1. The petitioners/appellants undertake to this Court that they shall remove their hand-carts and/or gallas, cabins, etc. on or before December 31, 1986. However, this undertaking by the appellants/petitioners will be subject to clause (2) below. Such undertakings should mention the exact places of their present trading. The undertakings to be filed by July, 1986. 2. The appellants/petitioners, however, will beat liberty to adopt appropriate proceedings in respect of locations of the area of the places in the trading zones where the appellants/petitioners and other hawkers will be permitted to carry on their trade in the final scheme. 3. The Municipal Corporation of Baroda shall give an opportunity to the appellants/petitioners to make their representations and will take them into consideration when it fixes hawking and non-hawking zones, the final scheme. 4. The Municipal Corporation, Baroda, should fix such zones expeditiously and in any case on or before December 15, 1986. 5. The interim scheme as approved by the Surat cases in clauses (5) of the Surat matters may be implemented subject to the modification that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. The definition clause distinguishes the two categories of the contempt in the sense, whereas, civil contempt is primarily related to disobedience or defiance of an order or direction of court or dishonouring any undertaking given to a court which is treated at par with a breach of injunction, so far as consequences are concerned and aimed to seek enforcement of an order of the court which a party to the proceedings is directed to do or forbear from doing and acts in contravention thereof and the defiance of such direction is dealt with properly. The conduct which is brought within the purview of criminal contempt is one that affects adversely the very dignity of the court and the majesty of law in the eye of people affecting their faith in efficacy of rule of law and which interferes with or tends to interfere with course of any judicial proceedings in particular or in the course of administration of justice in general. While we are unab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court. One requiring undertaking from the petitioners or appellants before the Supreme Court to remove their hand carts and/or gallas/cabins on or before 31.12.86. Other dubbing subsequent attempt by various persons to obtain interim order from the civil courts or other forums after the scheme providing hawking and non-hawking zones in the city of Vadodara as approved by this Court as an abuse of the process of the court for thwarting the scheme and holding such conduct to be contempt of court. The fact that the Supreme Court did not proceed against those suitors for committing them for contempt does not take away the message inherent into it that any attempt which affects the scheme approved for the traffic betterment of the city of Vadodara through indirect means is not to be viewed lightly. Thereafter when the present petitions were filed and precisely an issue was raised between the parties whether the petitioners are entitled to any protection against the notices of eviction on the basis of judgments given in the civil suits or earlier proceedings or in the name of following the procedure required under the Municipality Act other than by way of summary eviction or on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, while the court noticed about statement having been made on 20.8.97 and a complaint having been made that in breach of that statement the cabins have been removed and also noticing that the removal of cabins having not been denied, it did not think fit to initiate proceedings suo motu but has expressly left the parties if they desired to take out appropriate proceedings. Further, after recording statement of Mr. H.S. Patel and Mr. Thorat on 27.8.97, it had still not thought it fit to initiate proceedings suo motu. It is also not the case of either of the parties that it fulfils any of the three conditions for taking cognisance of a criminal conduct as required u/s 15. But that, in our opinion, is of academic importance, firstly, because we have reached conclusion that this is not a criminal contempt and secondly, once an action for proceedings for contempt has been initiated vis-a-vis a particular action if that action is found to be a contempt of court, punishment invariably depends on the gravity of the conduct and its fall out keeping in view the provisions of sec. 12. That makes it always relevant for consideration whether the act in question amounts to a civil contempt simp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it can be said beyond reasonable doubt that statement was made as an undertaking to the court or statement was an assurance given to the opposite party. 20.8.1999 24. Undoubtedly, unconditional apology has been tendered by respondents abandoning any plea of justification before us. However, we are of the view that before we consider the question of acceptance of apology, it becomes imperative that we consider whether a case for breach of undertaking to court has been made out or not, inasmuch as an apology neither amounts to purging of contempt nor is a defence to contempt. The apology and its consideration stand on the premise that the case for civil contempt or criminal contempt has been made out and the accused is to be convicted for such contempt. The real remorseful apology showing contrition of the contemner is a factor relevant for considering whether the offence of committing contempt of court is mitigated in its seriousness and mercy can be shown for considering the question of sentence of the contemner. Therefore, before we consider the question of apology, we have to look at the facts to reach independent conclusion whether a case for contempt by breach of any unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide the foundation for the contempt proceedings. Another principle which governs the issue about breach of an undertaking in the context of contempt proceedings is that it is to be established beyond any reasonable doubt clearly what was the undertaking given, to whom the undertaking was given, and for what the undertaking was given. 28. It is to be borne in mind, notwithstanding that breach of undertaking carries with it same consequence as a breach of injunction, while the latter is embodied in directions issued by a court and there is no question about the terms in which it has been issued, as its contents emanate from the proceedings of the court, about the former the same thing cannot be said. The undertaking can be in writing as well as oral. In the case of an undertaking to the court in writing, there may not be any difficulty in ascertaining what the undertaking is. However, the question becomes important in the case of oral undertaking. 29. The principle has been enunciated by the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin and Anr., (1980) 3 SCC 47 that any person appearing before the court can give an undertaking in two ways. Firstly, that he files an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were initiated on the ground that on 19th June 1973 when the applications for interim injunction and stay were heard by the learned vacation Judge, Mr. Y.N. Chaturvedi had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the Text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May 1973 by permitting the respondents to put in circulation and sale those 29 text books. It was alleged that a subsequent report published in 'Hitwad' containing alleged statement of State Minister Mr. Arjun Singh that reopening of schools have been postponed because of non-availability of the 29 text books for circulation and the interim order sought from the Supreme Court was founded on incorrect statement. Though, on facts the court found, keeping in view the affidavit filed that reopening of schools was not postponed because of the non-availability of 29 text books, it observed, now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made and matter was ordered to be kept today and to maintain status quo till today. In fact, at that time in presence of the learned counsel for the respondent-authorities it was stated that no demolition will be effected till today. Mr. S.N. Shelat, learned counsel appearing for Mr. P.G. Desai confirms that such a statement was made and that it was conveyed by him to Deputy Municipal Commissioner Mr. H.S. Patel. The aforesaid statement of facts in order dated 21.8.97 have three limbs. Firstly, it was complained by the present applicants that yesterday a mention was made and the matter was ordered to be kept today and to maintain status quo till today. This limb suggests that it was contention of the applicants then, that it was an order of the court that status quo be maintained until next day. The complaint of the petitioners at that stage did not suggest that any undertaking was given to court. The second statement which emerges from the aforesaid order is in fact at that time in presence of the learned counsel for the respondent-authorities it was stated that no demolition will be effected till today. This statement of fact negates the suggestion made by complainant that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with their advocates as it also records, we have consulted our advocate Mr. S.B. Vakil and your advocate Mr. Pranav Desai. 36. The telegram sent to Mr. H.S. Patel, respondent No. 1, by very those persons who sent above-referred telegram to respondent No. 2A, is identical in its expression. So also the telegram to respondent No. 3, proceedings against whom have since been dropped, carried the same contention. 37. Yet another telegram was sent on 21.8.97 to respondent No. 2A, by another group, the relevant part of which reads: the matter is on board and there is consent statement given orally before court not to disturb our possession till further hearing which is fixed for tomorrow This telegram was given by person other than those who had sent telegrams referred hereinbefore viz. (G.B. Makhijani and H.B. Makhijani). Another telegram was sent to Police Commissioner (Jagdish Chawla for all cabin holders at Lehripura Chaugan). Said telegram reads: We, the cabin holders, have been given consent before Justices of High Court bench, by Municipal Corporation legal Advocates in presence of Deputy Commissioner not to disturb our possession till further hearing which is fixed for tomorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that on 20.8.97 neither of the party was seeking adjournment but it was due to ongoing business of the court it was not possible for the court to take up the matter on that date when the mention was made by the petitioners at 2.45 p.m. for the purpose of taking up the matter for hearing. There is also no dispute that in first session of hearing the petitioners were awaiting outcome of the meeting of the petitioners' representatives with the Municipal Commissioner for which a request has been made through the counsel for the Corporation on 19.8.97 and the opportunity of hearing was not availed when the matter was called out in the first session of hearing. It has been stated in the application itself, in the first instance, that on 19.8.97 applicant's advocate conveyed to Mr. P.G. Desai that if applicants were either provided by the municipal authorities with pucca structures for carrying on business at the offered alternative site or were permitted to make pucca constructions at alternative sites, the applicants would agree to shift to those pucca constructions...... It was agreed between Mr. Pranav G. Desai and the applicant's advocate Mr. S.B. Vakil that representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already noted above, one of the ingredients which is essential for the purpose of making a breach of undertaking as a ground for initiating proceedings for civil contempt, the same must be with a view to obtain an interim order or a relaxation was absent. As is apparent from the facts, in fact it was the applicants who were in need for obtaining an interim order in view of rejection of their prayer for a stay during the interregnum period of filing their right of appeal, with clear directives that they have to remove voluntarily within specified period if they want to avoid an enforced eviction. Coupled with this, court having expressed its inability to take up the matter on 20.8.97, ordinarily the applicants needed assurance from the respondents to stay their hands until matter is heard. It is also apparent that there was no disagreement, on shifting to alternative site proposed. The proposal of applicants for pucca construction was also not admittedly turned down by the respondent No. 2A but it was made clear that she would do all that can be done by her, by strongly recommending the request of applicants for favorable consideration, to the general body of the Corporation with w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obabilities, if any, goes to the accused. 43. Though taking note of facts in totality we have reached this conclusion in favour of the respondents, we be not understood to have approved the action of respondents No. 1 to 2A and 4. We cannot resist from observing that the respondents have acted in a most irresponsible and unreasonable manner. The respondent Corporation is a local authority and exercises sovereign power of the State. Its officers acting on its behalf are responsible for its conduct. The duty to act fairly is ingrained in all spheres of activity and is first obligation of any limb of the State. Acting in derogation of such duty to act fairly cannot have the seal of approval of any court. Notwithstanding the fact that on consideration of totality of facts and circumstances we have reached the conclusion that it is not proved satisfactory with certainty that the alleged acts fall within the four corners of contempt, there is no doubt in coming to conclusion that respondents have acted in breach of their duty to act fairly. It cannot be disputed, and has not been disputed, that at least a solemn assurance was given to the applicants on behalf of the Corporation that it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible for the act of breach of faith. However, the same cannot be said about respondent No. 4 Mr. Bipin Shah who is a Ward Officer and was in no position to act contrary to directions of his superiors, respondent Nos.1 and 2A, merely on the say of petitioners. He was not connected in any way with the court proceedings. He has acted merely on the orders of respondent No. 2A. 44. Ordinarily, in such circumstances, restoration of status quo ante could have been considered. However, we find that in the circumstances of the case, the same cannot be granted at this stage particularly keeping in view the findings reached by learned single Judge, and keeping in view that the Bench hearing the Letters Patent Appeal having been apprised of such breach of faith and the facts about demolition having not been disputed, perhaps, for that very reason, has not ordered to restore status-quo ante. It has granted an order of maintaining status quo prospectively so that no further demolition of cabins, if still existing, may take place and that appropriate orders about restoration should follow only after the issue about the right of the applicants to continue on site as decided which was subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvantageous to the parties, the same have been offered before commencement of arguments without any effort being made to justify the acts and again reiterated the same before expression of opinion of court about 'contempt' on merit. But that is not the only reason which has prevailed with us. We have noticed from the facts stated above, firstly, that the respondents' plea right from the beginning has been that the applicants are not entitled to stay at the site in any manner in view of the decisions of the Supreme Court dated 2nd May 1986 and another order dated 3rd May 1989 where the Supreme Court denounced the attempt to thwart implementation of the scheme through new court proceedings as an abuse of the process of the court amounting to contempt. This plea found favour with the learned single Judge to be governing the case of the petitioners notwithstanding their contention to the contrary. The assertion of the petitioners in their own petition at least go to suggest that they had no objection to shift to the alternative site which was already offered to them and approved by them. The dispute was only with respect to their prayer for pucca construction over the alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do whatever in her power to recommend the case for acceptance of the demand for pucca construction as well, the probability of holding such belief bona fide, howsoever grossly incorrect or erroneous it may be, about the outcome of negotiations, though cannot justify the action, certainly could be considered while considering the apology in the totality of circumstances. 48. In this connection, reference may be made to Hoshiar Singh and another v. Gurbachan Singh and others, AIR 1962 SC 1089. It was a case of disobedience of a prohibitory order. On initiation of contempt proceedings defence was taken that the order was not operative as it had not been communicated to them from the court but only was informed by the parties. The court, while holding the respondent guilty of wilful breach of the injunction order, observed in the matter of prohibitory order it is well settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde . However, upholding the final order made by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent of acting under the orders of respondent Nos. 1 and 2A. He therefore cannot be found guilty of contempt of court. Merely acting as subordinate to carry out directions of superiors without anything more cannot render a subordinate responsible as abetting or aiding the breach of undertaking given to the court. Proceedings against him are liable to be dropped. 51. Respondent No. 5 has merely discharged his duty to deploy police force at the site when an operation of such magnitude was being undertaken to keep control over the law and order situation. As we have found, no intimation was ever given to the police authorities about any interim order or undertaking given to the court but he was clearly given to understand that some consent has been given by the advocate of the Corporation for desisting from demolishing until next day of hearing, who was not even a party to litigation cannot be held guilty of abetment of, and aiding such breach of undertaking by officers of the Corporation. Notices against him shall be discharged. 52. Before concluding, we further consider the allegation of the applicants that, apart from committing breach of the alleged undertaking given on 20th Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
