Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 755 (GAU)

Anjali Roy Choudhury v. Naresh Chandra Paul

2011-09-09

A.C.UPADHYAY

body2011
JUDGMENT A.C. Updhyay, J. 1. By this application under Section 12 of the Contempt of Courts Act, 1971 read with Article 215of the Constitution of India and Order 39 Rule 2A of the Code of Civil Procedure, the Petitioner has prayed for punishing the Respondents for willful disobedience of the order dated 18.08.2010 passed by this Court in C.M. Appl. No. 93 of 2010. 2. I have heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Datta, learned Counsel appearing for the Petitioner and Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. P. Chakraborty, learned Counsel representing the Respondents. 3. The Petitioner, above named, preferred RSA No. 34 of 2009 on or about 10.09.2009 before this Court praying for setting aside the judgment and decree dated 26.06.2009 passed by the learned District Judge, Kailashahar, North Tripura in Title Appeal No. 05 of 2009. 4. The facts leading to filing of this application reveal that the Petitioner, as Plaintiff, had instituted Title Suit No. 17 of 2008 in the Court of Civil Judge, Senior Division, North Tripura against the Defendants, Respondents herein, praying for a decree for declaration of her jote right, title and interest over the suit land measuring 0.561 acre by evicting the Defendants-Respondents there from. It is stated by the Petitioner that she is the owner of the entire 0.561 acre of land, out of which 0.20 acre of land was used for the religious purpose. The Petitioner further stated that 0.20 acres of land having temple was under permissive possession of the Respondents for management of religious purposes. The Petitioner alleged that the Respondents forcibly occupied the suit land measuring 0.361 acre, on or about 03.03.2007. The suit filed by the Petitioner was dismissed by the learned trial Court. On appeal, the decree passed by the learned trial court, was affirmed. 5. The Petitioner further stated that the suit land measuring 0.361 acre was all along a vacant land without any structure during the continuance of the suit and the first appeal, but the Defendants-Respondents on or about 12.07.2010 stored some bricks and sand on the said suit land for the purpose of raising structure and to construct building on the suit land. Accordingly, the Petitioner filed an application on 14.07.2010 before this Court praying for issuing an order of temporary injunction, restraining the Defendants-Respondents from changing the nature and character of the suit land, i.e. 0.361 acres of land by storing construction materials or by raising any structure/building/drain or making any construction thereon. To which the Defendants-Respondents had also filed written objection. This Court after considering the petition and the written objection filed by the Defendant-Respondents passed the order dated 18.08.2010 in C.M. Appl. No. 93 of 2010 (arising out of RSA No. 34 of 2009) providing therein, as an interim measure, that there shall not be any new construction on the said portion of the suit land measuring 0.361 acre till disposal of the appeal. The order passed by the learned Single Judge on 18.08.2010 in C.M. Appl. No. 93 of 2010, reads as follows: 18.08.2010 Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. R. Datta, learned Counsel appearing for the Appellant-Plaintiff and Mr. S.M. Chakraborty, learned senior counsel, assisted by Ms. B.R. Das, learned Counsel for the Respondents. Admittedly, an area of 20 acres out of the suit land mentioned in the schedule of the present Misc. application is under the possession of "Akhra" (temple). The remaining portion of the suit land measuring.361 acre is a vacant land. In the present Misc. application, it is stated that the Respondents had collected some materials for construction of new building/new structures on the vacant area of the suit land, i.e. 361 acre. This fact is denied by Mr. Chakraborty, learned senior counsel for the Respondents by contending that some materials have been collected only for renovation of the old structures, which is the "Akhra" I,e, the temple standing on the said portion of land i.e..20 acre of land. Taking into consideration the submission of the learned senior counsels appearing for the parties, as an interim measure, it is provided that there shall not be any new construction on the said vacant portion of the suit land measuring an area of 361 acre till disposal of the present appeal. It is also made clear that the Respondents may continue with the renovation of the standing building i.e. the temple and continue to construct new building within the area of 20 acre, which is already under the possession of the Respondents. With the aforesaid directions, the C.M. Application is disposed of. 6. It is also made clear that the Respondents may continue with the renovation of the standing building i.e. the temple and continue to construct new building within the area of 20 acre, which is already under the possession of the Respondents. With the aforesaid directions, the C.M. Application is disposed of. 6. The Petitioner alleged that the Respondents without caring for the aforesaid order passed by this Court started construction of a building on the suit land, i.e. 0.361 acre of land on or about 20.08.2010 and in spite of protest from the side of the Petitioner the Respondents by employing large number of masons and labourers constructed structures of a building up to roof level. The lawyer of the Petitioner served a copy of the order dated 18.08.2010 passed by this Court to the Respondents on 23.08.2010, through courier service. In spite of the above effort by the Petitioner, the Respondents paid no heed and continued the construction work. Accordingly, the Petitioner filed this contempt petition praying for drawing up a contempt proceeding against the Respondents for willful disobedience of the order aforesaid passed by this Court. 7. The Respondents entered appearance and contested the contempt proceeding. This Court, upon hearing the learned Counsel for the parties, ordered for an enquiry to be made by the District Judge, North Tripura, Kailashahar, to ascertain with certainty, as to whether there was any violation of the direction issued on 18.08.2010 by this Court in CM Appln. No. 93 of 2010. Learned District Judge, North Tripura, Kailashahar submitted his enquiry report in connection with the matter, after examining and recording statements of the local witnesses, who were present at the time of enquiry. The relevant extract of the report, submitted by the learned District Judge, North Tripura, Kailashahar, reads as follows: Accordingly, I have visited the site on 26.01.2011. I have examined and recorded statements of Shri Haripada Roy, former Secretary of the Managing Committee of Akhra, Shri Anil Paul, present Secretary of the Merchant Association, Kailashahar and Shri Sukumar Paul, a member of the Merchant Association, Kailashahar on behalf of the Respondents. Statement of Shri Ranjit Chakraborty, the Petitioner has also been recorded and these are kept with the Inquiry Report as Annexure-1 series and 2. I have also visited the old building and the new construction over the suit land. Statement of Shri Ranjit Chakraborty, the Petitioner has also been recorded and these are kept with the Inquiry Report as Annexure-1 series and 2. I have also visited the old building and the new construction over the suit land. The original temple is about 40(forty) years old and it covers the area, as assumed, about 25 acre. Another new structure has been constructed on the south western portion of the suit land and its roof and above lintel is done just four months back. Plastering of the building is not yet done. The members of the Merchant Committee claim that there was an old structure, which was 15(fifteen) years old, over the land, but in the naked eye it appears to be a new construction..361 acre of land is not vacant in the suit property. This new construction covers about 25ft x 50 ft. i.e. 1250 ft. the parties did not arrange measurement of the land. No surveyor or Amin was available, but on survey it appears to me that the new construction is situated on the vacant area of the suit land, i.e. on.361 acre of land. Old construction was over.25 acre of land and no repairing or renovation was done over that 40(forty) years old building. 8. Learned Counsel for the Petitioner by referring to the report of the learned District Judge submitted that violation of the order passed by this Court is apparent on the face of the record. Mr. A.K. Bhowmik, learned senior counsel by drawing attention of the Court to the order dated 18.08.2010 passed in C.M. Appl. No. 93 of 2010 submitted that it was admitted by both the parties that about 0.20 acre of land, out of the suit land mentioned in the Schedule of the Misc. application, is under possession of the 'Akhra' (temple) and the remaining portion of the suit land, i.e., 361 acre of land, is a vacant land. A construction was put up by the Respondents in the vacant portion of the suit land, i.e. 361 acre of land. 9. In reply to the above contention, Mr. S.M. Chakraborty, learned senior counsel for the Respondents submitted that the order passed by this Court on 18.08.2010 in C.M. Appl. A construction was put up by the Respondents in the vacant portion of the suit land, i.e. 361 acre of land. 9. In reply to the above contention, Mr. S.M. Chakraborty, learned senior counsel for the Respondents submitted that the order passed by this Court on 18.08.2010 in C.M. Appl. No. 93 of 2010, it has been reflected that some materials have been collected only for the purpose of renovation of the old structure, which is the 'Akhra' (temple) standing on the said portion of land, i.e..20 acre of land. Mr. Chakraborty emphasized on the fact that the appeal is pending and the Plaintiff had lost the appeal in both the Courts below and the schedule mentioned in the application for injunction does not indicate the portion, in which the 'Akhra' (temple) is situated. It indicates the entire suit land. It is the positive case of the Respondents that there was an old structure within the premises of 'Akhra' (temple) constructed by the Respondents, which was repaired and renovated. Learned senior counsel indicated that the injunction order was specific about the new construction. Therefore, the Respondents did not make any new construction disobeying the order passed by this Court on 18.08.2010. Mr. Chakraborty further submitted that the Respondents took up the finishing work to complete the half done building and it had been taken up by the Respondents on 16.05.2010 and new construction whatsoever was never ever made in violation of the order passed by this Court. 10. On careful analysis of the entire gamut of facts, it appears that the report of the District Judge though has reflected that the parties did not arrange measurement of the land and no Surveyor or Amin was available, but on over all examination by the District Judge it was found that new construction is situated on the vacant area of land, i.e..361 acre of land. 11. Indisputably continuance of construction is not disputed by the Respondents and it has also been reflected in the order dated 18.08.2010 that the Respondents may continue with the renovation of the building and continue to construct new building within the area of 20 acre. The report of the learned District Judge mentioned that another new structure has been constructed on the south-western portion of the suit land and its roof and above lintel is done just four months before. The report of the learned District Judge mentioned that another new structure has been constructed on the south-western portion of the suit land and its roof and above lintel is done just four months before. Apparently the roof and lintel was constructed just four months before, which apparently may be within the time, when the injunction order was passed by this Court, on 18.08.2010. The District Judge in his report has indicated that some new construction have come up in.361 acre of land. 12. In view of the above discussions, I am of the considered view that a prima-facie case has been made out to draw up contempt proceeding for violating the order dated 18.08.2010 passed by this Court in C.M. Appl. No. 93 of 2010. Accordingly, draw up contempt proceeding against the Respondents and issue showcase as to why they shall not be punished, for willful violation of the Court's order, passed on 18.08.2010 in CM Appln. No. 93 of 2010. Ordered accordingly. 13. Let show cause notice be issued upon the Respondents fixing 09.11.2011 for their appearance.