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Andhra High Court · body

2009 DIGILAW 388 (AP)

Mohd. Moinuddin v. C. V. S. K. Sharma

2009-06-19

A.GOPAL REDDY

body2009
Oral Order: In this Contempt Case filed under Sections 10 and 12 of Contempt of Courts Act, 1971 petitioner seeks to punish the respondents for wilful disobedience of the orders passed by this Court in W.P.No.577 of 2003 dated 09-01-2003. The petitioner filed the above writ petition averring that he is the absolute owner and exclusive possessor of Mulgi bearing No.5-2-30 in an extent of 35 square yards (26’.3” x 12’.0”) excluding pial situated at Jam Bagh, Mozamjahi Market, Hyderabad. It is also averred in the writ petition that he purchased the above property from Mohd.Kamaluddin s/o Ahmed Jamaluddin under a registered sale deed dated 14-08-2001 vide document No.2837/2001; prior to the said purchase he was in possession of the property as a tenant and after purchasing the same he continued to be in possession. While so, the respondents along with subordinates carried the demolition of adjoining mulgies on either side of his mulgi for road widening without following due procedure. Since no proceedings under Sections 146 and 147 of the Hyderabad Municipal Act, 1955 have been followed, he resisted the demolition by showing the sale deed, but the respondents forcibly demolished the mulgi partly; therefore, they should be restrained from interfering with the possession of the mulgi without following due procedure contemplated under Sections 146 and 147 of the Hyderabad Municipal Corporation Act, 1955. The said writ petition was disposed of by this Court on 09-01-2003 directing the respondents therein to follow the guidelines issued by this Court in W.P.No.21198 of 1997 dated 03-02-1998 for acquisition of the land for the purpose of road widening; making it clear that the Corporation can enter into mutual settlement through negotiations with the owners of the building and obtain consent before proceeding with the widening of the road and if the owners fail to give their consent, it is open for the Corporation to proceed under the Land Acquisition Act, 1894. It is the specific case of the petitioner that after disposal of writ petition no notice whatsoever was issued to the petitioner nor initiated any proceedings under Sections 146 and 147 of Hyderabad Municipal Corporation Act, 1955 but on28-04-2008 the respondents along with subordinates and labour etc. carried out demolition work of the adjoining mulgies on either side of the petitioner’s mulgi and also forcibly demolished the mulgi of the petitioner partly and the debris are lying. carried out demolition work of the adjoining mulgies on either side of the petitioner’s mulgi and also forcibly demolished the mulgi of the petitioner partly and the debris are lying. In view of demolition carried out by the respondents highhandedly, petitioner was mentally upset and submitted a representation to the 2nd respondent on 29-04-2008 complaining about the illegal demolition and claiming compensation and also sought permission to construct on the left over place. The respondents never fixed compensation nor granted permission for construction and the demolition, which was carried out by the respondents, is in utter violation of directions issued by this Court while disposing the writ petition. On issuing Form-I Notice on 27-02-2008, the respondents appeared and filed their counter affidavits. The 1st respondent who was the Commissioner and Special Officer of the Corporation at the relevant time stated that the premises bearing Municipal No.5-2-30 to 34 consisting of four mulgies originally belong to one Sri Jameeluddin. Subsequently, as per the family partition in O.S.No.1448 of 1989 on the file of IV Additional Judge, City Civil Court, Hyderabad, one Sri Abdul Malik, Mohd. Qayyum, Mohd.Abdul Mommin, Dr.Sofia and Smt.Salma Rasheed became owners of the property. The property in question along with other properties was affected in the proposed road widening from M.J.Market to Putlibowli for the proposed 100’ wide road from the existing 60’ wide road. The properties in question were affected to a depth of 20’. The respondent— Corporation issued notice in terms of Section 146 of the Hyderabad Municipal Corporation Act, 1955 to the registered owners of the premises in question requesting them to handover the affected portion voluntarily stating that the benefits conferred upon G.O.Ms.No.48 M.A., dated 24-08-1998 such as additional FSI and concession in set backs will be afforded in lieu of surrendering the land for free of cost. In response to notice, registered owners of the property in question, namely, Sri M.A. Momin and others have given their consent on 19-02-2008 but, however, with certain conditions. The said M.A. Momin and others are owners to an extent of 388 square yards and the remaining portion belonging to Sri Ismath Pasha, Sri T. Venkata Ramaiah, Sri Chandraiah and Sri G.Padma Rao and they have also given consent for surrendering the land for free of cost. After receiving the consent, as stated above, the respondent—Corporation has taken up the demolition work. After receiving the consent, as stated above, the respondent—Corporation has taken up the demolition work. It is also stated that the property now claimed by the petitioner was part of the property claimed by one Sri Ismath Pasha and others; to prove their claim they have submitted a copy of the court decree. The averment that the petitioner purchased the Mulgi No.5-2-30 to an extent of 35 square yards under a registered sale deed dated 14-08-2001 is not within the knowledge of the respondent—Corporation. Necessary notices were issued to the owners of the property basing on the municipal records and admitted about the petitioner filing W.P.No.577 of 2003 and directions issued by this court on 09-01-2003. The petitioner has never produced the sale deed purported to have been executed by one Sri Mohd. Jameeluddin in his favour to establish his ownership over the property and he has not produced link documents for the sale deed dated 14-08-2001.It was only on the next day of demolition i.e.29-04-2008 the petitioner gave a letter to the Corporation stating that he is the lawful owner of the property. Sri Ismath Pasha, owner of the property has given a consent letter to the respondent—Corporation for acquitting the property bearing Nos.5-2-30 to 34 on behalf of all the owners also. When the owners have agreed and given consent, the respondent—Corporation has taken up demolition work. The Corporation also prepared structure value cheque in the name of the original owner, Sri Jameeluddin for Rs.2.33,384/- vide Cheque No.005955 dated 21-06-2005 and revalue dated 15-07-2008. The mulgi claimed by the petitioner was locked; therefore, the same was not demolished. On 28-04-2008 the subordinates of the respondent—Corporation visited the premises and found that the petitioner has abandoned the mulgi in question and no business activity is going on in the premises and one side wall of the mulgi was fallen down due to demolition of the adjacent mulgi, consequently the subordinates of the Corporation have demolished the mulgi in question. After demolition of the shop debris were lying at the site and two days later when the labourers of the respondent—Corporation went for removing the debris, the petitioner along with some anti-social have threatened the labourers engaged by the Corporation and shown the copy of the order passed in W.P.No.577 of 2003 dated 09-01-2008. After demolition of the shop debris were lying at the site and two days later when the labourers of the respondent—Corporation went for removing the debris, the petitioner along with some anti-social have threatened the labourers engaged by the Corporation and shown the copy of the order passed in W.P.No.577 of 2003 dated 09-01-2008. Since the respondent—Corporation has no knowledge of the petitioner purchasing the property in question and the petitioner never submitted any documents to the Corporation claiming that he is the owner of the mulgi in question and till date the petitioner’s name has not been mutated in the municipal records, so notice was not issued to him. When the petitioner prevented the labourers engaged by the Corporation from removing the debris, they made a compliant to the police. After knowing about the police compliant given by the Corporation, petitioner has submitted a representation along with a copy of order passed in W.P.No.577 of 2003 and copy of sale deed executed on 14-08-2001. Since the petitioner could not prove his ownership in respect of the property and since there are rival claims and Sri Ismath Pasha, the original owner gave consent letter for demolition of the mulgi, the respondent—Corporation demolished the mulgi. It is stated that he has highest regard to the orders of the Hon’ble Court and he is duty bound to honour the orders of the Court and offered unconditional apology for any lapse on his part in implementing the orders of this Court. Due to the rival claims the respondent—Corporation under the bona fide belief that Sri Ismath Pasha is the absolute owner of the said mulgi demolished the same and there was no absolute intention of flouting the orders of this Hon’ble Court. The 2nd respondent also filed a counter in the same lines as pleaded by the 1st respondent. It is stated that on registered owners giving consent, the Corporation has taken demolition work and prepared structure value cheque in the name of original owner—Jameeluddin for a sum of Rs.2,33,384/- vide cheque No.005955 dated 21-06-2008 and revalue dated 15-07-2008. Basing upon the consent letter given by the registered owners of the property in question, the respondent—Corporation demolished two shops on either side of suit mulgi and since the mulgi claimed by the petitioner was locked, it was not demolished. Basing upon the consent letter given by the registered owners of the property in question, the respondent—Corporation demolished two shops on either side of suit mulgi and since the mulgi claimed by the petitioner was locked, it was not demolished. On 28-04-2008 the subordinates of the respondent— Corporation visited the premises and found that the petitioner abandoned the mulgi in question; no business activity was going on there and one side wall of the mulgi was fell down due to demolition of adjacent mulgies; consequently the subordinates of the Corporation demolished the mulgi in question. To the best of his knowledge petitioner has not mutated his name in the municipal records enabling the Corporation to issue notice to the present owner. The shop in question is part of land claimed by T.Venkata Ramaiah and others. He also admitted about the orders passed by this Court in W.P.No.577 of 2003 dated 09-01-2003. Since the respondent—Corporation is not aware about the acquisition of the mulgi in question by the petitioner, basing upon the consent given by the original owners, the Corporation has taken up demolition of mulgi in question on 29-04-2008. The petitioner submitted a representation complaining about the illegal demolition of mulgi in question, requesting to fix the compensation to the affected area and allow him to construct in the left over space. The respondent— Corporation would consider the request of the petitioner subject to his proving the title over the property in question. Since there are rival claims in the mulgi in question, the respondent—Corporation never intended to flout the orders of the Court and only after following due process of law i.e. after obtaining consent from the owners of the premises, the Corporation carried out demolition work. The petitioner having made a representation on 29-04-2008 claiming compensation for the affected area and requesting permission to construct on the left over area, now cannot be permitted to contend that the respondent—Corporation has deliberately violated the orders passed by this Court. The respondent—Corporation acted in good faith; never intended to violate the orders passed by this Court and reiterated that they never intended to cause prejudice to the petitioner and prayed for dismissal of Contempt Case. In the light of the above stand taken by the respondents in the counter affidavits, it has to be seen whether the respondents are liable to be proceeded under the Contempt of Courts Act, 1971. In the light of the above stand taken by the respondents in the counter affidavits, it has to be seen whether the respondents are liable to be proceeded under the Contempt of Courts Act, 1971. Both the respondents admitted about the petitioner filing writ petition earlier and order passed by this Court, as referred to above. In the affidavit filed in support of the writ petition the petitioner has specifically pleaded that he purchased the property from Mohd. Kamaluddin s/o Ahmed Jamaluddin under a registered sale deed dated 14-08-2001 under document No.2837 of 2001. Explanation-I to Section 3 of the Transfer of Property Act,1882 envisages any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. Further, Explanation-II also envisages any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereon. Once the petitioner specifically asserted that he purchased the property under a registered sale deed from the original owner and he is in possession of the same the respondents, who are carrying out the demolition of adjoining mulgies on either side of the petitioner’s mulgi, should be prevented from demolition of mulgi which is in possession of the petitioner without following due procedure. This Court issued a Mandamus directing the respondents to follow the guidelines issued by this Court in W.P.No.21198 of 1997 dated 03-02-1998 for acquisition of the land for the purpose of road widening, making it clear that the Corporation can enter into mutual settlement through negotiations with the owners of the building and obtain consent before proceeding with the widening of the road and if the owners fail to give their consent, it is open for the Corporation to proceed under the Land Acquisition Act, 1894. Smt. Kalpana Ekbote, learned Standing Counsel for G.H.M.C., appearing for the respondents contended that respondents have not violated the orders passed by this Court but explained the reasons leading to demolition as stated in the counter. Smt. Kalpana Ekbote, learned Standing Counsel for G.H.M.C., appearing for the respondents contended that respondents have not violated the orders passed by this Court but explained the reasons leading to demolition as stated in the counter. It is not the case of the respondents that before undertaking such demolition a notice as such was issued to the petitioner, who asserted his title on immovable property, but proceeded with the demolition by obtaining consent of the previous owner, which is evident from the plea taken by the respondents. They have also stated that M.A.Mommin and others given their consent with certain conditions, which originally belongs to Jamaluddin, and pursuant to partition, Abdul Mallik, Mohd. Qayyum, Mohd. Abdul Mommin, Dr.Sofia and Smt. Salma Rasheed became owners of the property. What prompted the respondents to decide that the petitioner is not the owner of the property without issuing notice to him is not forthcoming. It is nothing but deliberately flouting the orders passed this Court. Having noticed that Mandamus issued by this Court has not been obeyed, the first respondent pleaded that he has highest regard to the orders of the Hon’ble Court and offered unconditional apology for any lapse on his part in implementing the orders of the Court. The apology is only to dilute the gravity of offence, not sincere, which is devoid of remorse could not counteract or palliate the mischief that had already been done. The contemnor (1st respondent), who is a senior I.A.S. Officer, knowing the dignity and decorum of the Court and the gross nature of contempt committed by him is exonerated, it would be a misplaced leniency if purged by accepting his apology. The 2nd respondent though pleaded that Corporation acted in good faith and never intended to violate the orders passed by this Court, not even regretted for the mischief caused in disobeying the Mandamus issued by this Court. In view of the same, I have no option but except to come the conclusion that the respondents have willfully and deliberately disobeyed the orders passed by this Court in W.P.No.577 of 2003 dated 09-01-2003, by demolishing the structure and by preventing the course of justice, and are found guilty of Contempt of Court and liable to be punished under Section 12 of the Contempt of Courts Act, 1971. For the foregoing reasons and conclusions reached by me, the respondents are sentenced to pay a fine of Rs.10,000/- each to the petitioner within two weeks from today for depriving him of his livelihood and mental agony caused. In default of payment of fine amount the respondents shall be liable to undergo simple imprisonment for a period of seven days. The Contempt Case is accordingly allowed.