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1972 DIGILAW 167 (MP)

MOHAMMAD NASEER KHAN v. MUNICIPAL CORPORATION BHOPAL

1972-12-21

A.P.SEN, R.K.TANKHA

body1972
JUDGMENT : ( 1. ) THIS is an application by Mohammad Naseer Khan for contempt against the 12 respondents, who are, respectively, the Municipal - Corporation, Bhopal, and its officers and servants and two Sub-Inspectors of Police. It is said that the respondents and each of them were guilty of contempt of Court, in that: (i) There was. on the part of each a deliberate disobedience of a stay order of this Court dated 28-8-1972 issued against the Municipal Corporation, Bhopal, directing it to refrain forthwith from demolishing the superstructure of his house which was in excess of the sanction and, therefore, was an unauthorised construction, by carrying the work of demolition despite the stay order; (ii) All of them, in general showed disrespect to this Court by refusing to look into the order, and the municipal officers, in particular, made derogatory remarks showing their contempt for its authority. It is said that the respondent No. 4, Ayub Raza, Assistant Engineer, uttered the words-456mplj1976.jpg Words of similar nature, it is said, were uttered by other municipal officers and servants; and (iii) The two Sub-Inspectors of police placed the applicants son mohammad Siddique under arrest when he tried to prevent the demolition of the superstructure. ( 2. ) IN Mohammad Nasir Khan v. Municipal Corporation, Bhopal (Criminal Revision No7483 of 19727 d/-28-8-1972.), I had made a direction to the following effect: "28 8-72. Shri Faizanuddin for the applicant, heard. The learned counsel states that consequent upon the conviction of the applicant under section 187 (8) of the M. P. Municipalities Act, 1961, the Municipal Corporation has served the applicant with a notice under section 307 (2) of the Madhya Pradesh Municipal corporation Act, 1956 to show cause why the structure should not be demolished. The revision has already been fixed lor 30-8-1972, both for admission as well as for stay. The Municipal Corporation has been noticed to put in appearance on the date. In the circumstances, it is expected that the Municipal Corporation will refrain from giving effect to its notice under section 307 (2) of the Madhya Pradesh Municipal Corporation Act, 195 till 30-8-1972, i. e. , the date of hearing. A certified copy of the order be granted to the applicant on payment of necessary charges. " ( 3. ) IN response to the notice issued by this Court, the respondents have appeared in person and also showed cause. A certified copy of the order be granted to the applicant on payment of necessary charges. " ( 3. ) IN response to the notice issued by this Court, the respondents have appeared in person and also showed cause. They deny the allegations made against them and in support of their denial have filed counter-affidavits Their version is as follows: (1) The affidavit of P. C. Jain, Assistant Engineer is that in pursuance of the order of demolition issued by the City Engineer, he reached the spot with a demolition squad of 50 labourers, along with a police force at about 8. 15 A. M. Ayyub Raza, Assistant Engineer also reached the spot at the same time. Immediately thereafter, the work of demolition started. Neither the applicant nor his son were then present. After a while, the applicants son, Mohammad Siddique came to the site and started abusing the municipal officers, and produced a certified copy of the order. On perusal of the order, he stopped the demolition work. However, as he was unable to understand the true import of the order, and could not decide on his own whether any further action should be taken, he requested Mohammad siddique to accompany him to the Corporation office, in the municipal jeep. On the way, Mohammad Siddique asked him to see his lawyer, Shri faizanuddin. They accordingly went to his place Shri Faizanuddin explained to him that the order was a stay order and that was the usual way in which stay order was granted. Not being satisfied with his explanation, he thought it fit to seek- further instructions from R. C. Kapoor, City engineer. He reached the Corporation office, at about 9. 30 A. M. and he was instructed by Kapoor to stop the work. He further denies that neither ayyub Raza nor he or any other employee of the Municipal Corporation uttered any words derogatory to the High Court. (ii) R. C. Kapoor, City Engineer, states in his affidavit that in all cases of demolition of unauthorised constructions, police help was sought to maintain law and order. On 29-8-1972 at 9. 30 A. M. , P. C. Jain, Asstt. (ii) R. C. Kapoor, City Engineer, states in his affidavit that in all cases of demolition of unauthorised constructions, police help was sought to maintain law and order. On 29-8-1972 at 9. 30 A. M. , P. C. Jain, Asstt. Engineer, along with the applicant and his son came to his office in a jeep belonging to the Corporation, and Jain produced a certified copy of the order, and told him that on seeing the same he had stopped the work of demolition pending farther instructions. Jain told him that he was unable to understand the correct implications of the order. Since the High Court expected the Corporation not to demolish the building, he directed Jain to withdraw the demolition squad forthwith. (iii) Ayyub Raza, Assistant Engineer, denies on affidavit that he ever uttered the words mentioned in para 5 of the application. He further corroborates the version of P. C. Jain. (iv) The Sub-Inspectors of Police, V. K. Singh and K. B. Singh have filed separate affidavits, alleging that the applicants son, Mohammad siddique was arrested when he tried to assault Ayyub Raza, Assistant engineer, and offences under sections 332, 353 and 294 of the Indian Penal code have been registered against him. They have also produced a copy of the chalan filed against him. They corroborate the version of the municipal officers in material particulars. ( 4. ) THE powers under the Contempt of Courts Act, 1971 have to be exercised with circumspection. The applicant alleges that the respondents were guilty of contempt, both civil and criminal. The expression "civil contempt" is defined in section 2 (b) as follows : " (b) civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. " The definition is in two parts. First, there must an "order" before there can be its disobedience, and secondly, there has to be "wilful" disobedience. ( 5. ) ON a plain construction, the order dated 28 8-1972, can, by no stretch of imagination, be treated as a stay order. Emphasis is, however, laid on the word "expected", and it is said that the Municipal Corporation was required to refrain. The meaning of the word "expect" as given in the shorter Oxford english Dictionary, Vol. I. P. 655 is: "expect.-to look out for. To wait for, wait. Emphasis is, however, laid on the word "expected", and it is said that the Municipal Corporation was required to refrain. The meaning of the word "expect" as given in the shorter Oxford english Dictionary, Vol. I. P. 655 is: "expect.-to look out for. To wait for, wait. " it is said that when a High authority, like the High Court, issues an order be it a prohibitory, stay or injunction order as the case may be, to a statutory body, such an order is always couched in similar terms. To say the least, such construction of the word "expect" as meaning to refrain from, is an exercise in futility. In common parlance, when one expects another not to do a thing, that is only an expression of desire and nothing more. The matter is then left to the judgment of the other. The order dated 28-8-1972 was, therefore, not a stay order. ( 6. ) IT is fundamental that no one shall be proceeded against for disobedience of an order of a Court except for a wilful violation of the Courts order and unless such order is duly communicated. In shorter Oxford English dictionary, Vol. II. p. 2427, the meaning of the word "wilful" is given thus: "wilful -Done on purpose. . . . . . . deliberate, intentional. . . . . . ". In other words, it means, always, in bad sense, of a blame-worthy action. As already stated, the order dated 28-8 1972 was not a stay order, and the respondents were in doubt as to its true import. Nevertheless, they stopped the work on being served with the order. There is no reason to disbelieve the affidavits of these officers. It cannot, therefore, be said that there was disobedience, much less any wilful disobedience. In Hoshiar Singh and another v. Gurbachan Singh and others ( AIR 1962 SC 1089 .), their Lordships of the Supreme Court stated as follows: ". . . . . in the matter of a 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. . . . in the matter of a 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. " In Mulraj v. Murti Raghunathji Maharaj (A I R 1967 SC 1386.), their Lordships while laying down that a stay order is in the nature of a prohibitory order and, therefore, knowledge of it by the Court which is prohibited is essential before the Court is deprived of the power to carry on the proceedings stated : ". . . . . . There can be doubt that no action for contempt can be taken against an executing Court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing Court before its jurisdiction can be affected by the order. . . . ". The respondents in this case had notice of the order only when it was shown to them. Even if the order is construed to be a stay order, there is nothing to show that there was any wilful disobedience on their part. There was, therefore, no civil contempt committed by the respondents within the meaning of section 2 (b) of the Contempt of Courts Act, 1971. 6. That brings us to the question as to whether the respondents refused to look into the order or whether the utterances mentioned in para 5 of the application were made by the Municipal officers and servants in general, and ayyub Raza in particular. The respondents have in their counter-affidavits stated their case fully, and have repudiated the allegations to be baseless. Any act done, or writing published, calculated to bring a Court or a Judge of the court into contempt, or to lower its authority, is gross contempt of Court. Such contempt is punished for this reason that it tends to create distrust in the public mind and impair the confidence of the people in the Courts which are of prime importance to the litigants in the protection of their rights and liberties. ( 7. ) THE expression "criminal contempt" is denned in section 2 (c) of the act as follows: "2 (c ). ( 7. ) THE expression "criminal contempt" is denned in section 2 (c) of the act as follows: "2 (c ). criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lower or tends to lower the authority of, any Court; or (ii) Prejudices, or interfere or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. " While dealing with a contempt of this kind, it must be borne in mind that the charge, though not. criminal, is of a quasi criminal nature and, therefore, must be proved beyond all reasonable doubt. The question, therefore, is whether there is credible information on which we should punish the respondents for contempt. One of the first principles is that the High Court will not exercise its summary jurisdiction except in a case beyond all doubt. The applicant has no doubt made very serious allegations, but they have been controverted on affidavits. When such wild allegations are made, the Court is put in a difficult position. We regret to say that the applicant has failed to substantiate the allegations made. It is unsafe to act on the affidavits of the applicant, Mohan-mad Nasir Khan, or his son, Mohammad Siddique. They are both highly interested persons. Though a huge crowd had collected at the spot, the applicant has chosen not to file any affidavits of some responsible persons. There are two affidavits of Shabbir Khan, a tea-stall holder, and of Yunus Ali, a panwala. They are both tenants of the applicant, Mohammad Nasir Khan and, therefore, equally interested in him. The other two affidavits are-of Rais mohammad, a timber-stall holder and of one Chhotelal, who was on his way from Barkhedi to Jumerati. Such affidavits can always be procured by a party to wreak his private vengence. There is, therefore, no definite proof against the respondents showing that they scandalised the High Court or caused affront to its authority, and they must, in the circumstances, get the benefit of doubt. ( 8. Such affidavits can always be procured by a party to wreak his private vengence. There is, therefore, no definite proof against the respondents showing that they scandalised the High Court or caused affront to its authority, and they must, in the circumstances, get the benefit of doubt. ( 8. ) WITH respect to the arrest, the fact that the arrest of the applicants son was due to his resistance to the work of demolition of the superstructure has been controverted. In their reply, the two Sub-Inspsctors of Police assert that the arrest was wholly unrelated to that act but was in connection with commission of offences punishable under sections 332, 353 and 294 of the Indian penal Code. They have in support of their version exhibited a police chalan. Since the prosecution is pending, we must refrain from making any observations in regard to this aspect. ( 9. ) IN the result, the application fails and is dismissed. There shall be no order as to costs. Application dismissed.