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2013 DIGILAW 228 (CAL)

Narayan Chandra Das v. Anjan Ghosh

2013-05-03

NADIRA PATHERYA

body2013
Judgment :- Patherya J. In this contempt application the petitioner has alleged violation of order dated 28th April, 2010. Counsel for the petitioner submits that by order dated 28th April, 2010 the respondent No.5 was directed to consider and dispose of the petitioner’s representation after giving an opportunity of hearing to all parties and by passing a reasoned order. The decree passed on 23rd December, 1985 and the order passed by the High Court on 5th January, 1994 was directed to be considered. In the meantime, no step was to be taken in respect of the project undertaken. Title Suit No.2 of 1980 was filed by one Haran Chandra Das, the predecessor-in-interest of the petitioner which suit was decreed on contest and although an appeal was filed the same was dismissed for default. The misc. case filed was also dismissed on contest. Inspite of the aforesaid no step was taken by the State to divest the said plots of land and include the name of the petitioner, although it was decreed that the said plots belonged to the predecessor-in-interest of the petitioner, in the record of rights. Accordingly a writ petition was filed and an order was passed by Altamas Kabir, J. directing the BL & LRO, Ranaghat II, Nadia to correct the record of rights but no step was taken and a contempt application was filed, the said contempt application has however lapsed. In November, 2009 it was noticed that some members of the Ranaghat II Panchayet Samity and the Baidyapur II Gram Panchayet were surveying the decreed plots for the purposes of setting up a water project under the Sajal Dhara Prokolpa. A representation was made and for non-consideration of such representation W.P. 24088 (W) of 2009 was filed and order dated 28th April, 2010 was passed. In spite of the representation of the legal heirs and representatives of Haran Chandra Das, the decree-holder, the BL & LRO registered the said decreed plots in favour of third parties. Such third parties filed a suit, which was dismissed and the appeal filed was also dismissed on 21st April, 2010. In April 2010 the Sajal Dhara Scheme came into effect. By letter dated 12.12.2009 the order dated 5th January, 2009 was sent to the office of the Block Land & Land Reforms Officer, Ranaghat II, Nadia. The said was received by the BL & LRO on 14.12.2009. In April 2010 the Sajal Dhara Scheme came into effect. By letter dated 12.12.2009 the order dated 5th January, 2009 was sent to the office of the Block Land & Land Reforms Officer, Ranaghat II, Nadia. The said was received by the BL & LRO on 14.12.2009. In spite thereof a no objection was taken from Bimal Kumar Moulik and the other purported owners of the said plots for the Sajal Dhara Scheme, in January, 2010 by the Panchayet Samity. The order was passed on 28th April, 2010 by this Court and from the photographs it will appear that steps were taken to continue with the project work by erecting structure and construction of boundary wall and all persons involved in the project work of Sajal Dhara have violated the order dated 28th April, 2010 and are guilty of contempt. In the opposition filed to the Rule by Anjan Ghosh the alleged contemnor/respondent No.1 on 20th June, 2012, letters have been annexed from the Block Land & Land Reforms Officer, Ranaghat, Nadia to the Assistant Engineer, PHE Directorate, Krishnanagar, Nadia whereby directions were given to stop all construction work over the three plots in question. In spite of receipt of the said letters and communication of the High Court’s order there has been no compliance thereof. Therefore all the respondents be held guilty of contempt. Counsel for the alleged contemnor/respondents submits that there has been no violation of the order dated 28th April, 2010. The work undertaken was in respect of Sajal Dhara Scheme. The representation is dated 11th January, 2010. On receipt of the said order a notice of hearing was issued on 17th May, 2010 fixing the date of hearing on 25th May, 2010. The said notice was served on not only the petitioner, who received the same but also on other interested parties. On 25th May, 2010 the parties were represented at hearing. The matter was then adjourned till 10th June, 2010 on which date after hearing once again the matter was adjourned till 25th June, 2010 when the order was passed. Thus the representation dated 11th January, 2010 has been disposed of in compliance with the order dated 28th April, 2010. Not only was the order read out and explained to the parties but the parties were also directed to obtain certified copies. Thus the representation dated 11th January, 2010 has been disposed of in compliance with the order dated 28th April, 2010. Not only was the order read out and explained to the parties but the parties were also directed to obtain certified copies. As the order dated 28th April, 2010 directed disposal of the representation dated 11th January, 2010 and the said representation has been disposed of the question of violating the order dated 28th April, 2010 does not arise. The contempt application has also not been filed as per the Contempt Rules framed by the Calcutta High Court. Rules 4 and 7 specifically require that the cause title and the prayer should distinctly state the contumacious act alleged. In the instant case such allegation has not been distinctly set out in either the prayer or the cause title of contempt application and therefore the contempt application is not in proper form and warrants dismissal. In reply, counsel for the petitioner submits that the communication made by the office of the BL & LRO is not in connection with the Sajal Dhara Scheme but is in respect of arsenic water treatment. Although in the affidavit-in-opposition filed by the alleged contemnor/respondent No.1 by letters dated 12 th May, 2010 and 5th December, 2011 the project manager has informed of stoppage of work, but from the photographs which has been annexed to the affidavit-in-reply it will appear that work continued in respect of the said project. The order dated 25th June, 2010 has been passed by the alleged contemnor/respondent No.1. It has been specifically pleaded that all documents as required by the adjudicating authority was submitted. On the date when such documents was submitted, the alleged contemnor/respondent No.1 was posted at Kalyani and the alleged contemnor/respondent No.4 took charge in his place. Therefore the alleged contemnor/respondent No.1 could not have taken a decision as per order dated 28th April, 2010 and a duty was cast on the alleged contemnor/respondent No.4 to take such decision. It has been admitted by the alleged contemnor/respondent No.1 that on 25th June, 2010 the representation was disposed of but no formal communication was made as the order was read out and explained to the parties with a request to take certified copies thereof. As the order dated 28th April, 2010 directed communication of the decision, non-communication thereof is in violation of the said order. As the order dated 28th April, 2010 directed communication of the decision, non-communication thereof is in violation of the said order. Having considered the submissions of the parties all that the petitioner sought in W.P. 24088 (W) of 2009 was consideration and disposal of his representation dated 11th January, 2010. By order dated 28th April, 2010 the respondent No.5, namely, the alleged contemnor/respondent No.1 was directed to consider and dispose of the said representation after giving an opportunity of hearing to all parties and by passing a reasoned order within three weeks from the date of receipt of the order. The decree of December 1985 and the order of January 1994 were also directed to be considered. The decision taken was to be communicated within one week and in the meantime no step was to be taken in respect of the alleged project undertaken. By letter dated 3rd May, 2010, the order dated 28th April, 2010 was communicated to the office of the alleged contemnor/respondent No.1 and the same was received on 4.5.2010. Thereafter on 17th May, 2010 a notice of hearing was issued to not only the writ petitioner but to all interested parties. By the said notice the date of hearing was fixed on 25th May, 2010 at 12 noon in the office of the alleged contemnor/respondent No.1. The said notice was received by the petitioner will appear from the hazira filed by the petitioner on 25th May, 2010 through his authorized lawyer Mr. Bikash Chandra Das, advocate. The vakalatnama was also filed on the same day. It was within a fortnight that the notice was issued and on the last day of three weeks the hearing fixed. It was at the hearing as will appear from the order-sheet dated 25th May, 2010 that it was submitted that the plaint of T.S. 2 of 1980 was necessary and 15 days’ time was needed to obtain certified copy thereof. Accordingly an adjournment was granted till 10th June, 2010. Further time was sought on 10th June, 2010 by the petitioner’s advocate and such time was also allowed till 25th June, 2010. After hearing the parties on 25th June, 2010 the order was passed and it may be true that the decision was not communicated but the parties were directed to obtain certified copies. Further time was sought on 10th June, 2010 by the petitioner’s advocate and such time was also allowed till 25th June, 2010. After hearing the parties on 25th June, 2010 the order was passed and it may be true that the decision was not communicated but the parties were directed to obtain certified copies. Prior to filing of the contempt application no notice was issued by the petitioner to the alleged contemnor/respondents alleging violation of the said order and therefore, in fact no opportunity was given to the alleged contemnor/respondents to communicate the decision. The main thrust of the petitioner’s argument is in respect of the interim order passed which restrained continuance of the project undertaken. According to the petitioner the work was continued in violation of the order. After receipt of the order dated 28th April, 2010 by letters dated 4th May, 2010 and 7th May, 2010 the alleged contemnor/respondent No.1 informed the Assistant Engineer, PHE Directorate to ask its contractors to stop work and it was informed by the contractors of the PHE Department that work had stopped due to local problem since 24th April, 2010. This was prior to the order dated 28th April, 2010. From the letter dated 5.12.2011 of the contractor to the PHE Department the work was stopped as per the Court’s order and the said communication was also sent to the office of the alleged contemnor/respondent No.1. From the photographs disclosed construction is evident but whether such construction was in the plots of land belonging to the petitioner one is not aware. Even assuming that such construction was made in the plots of land of the petitioner, it is necessary to see whether the parties against whom contempt has been alleged have in fact violated the said order. The alleged contemnor/respondent No.1 informed the Assistant Engineer, PHE Department of the order dated 28th April, 2010 and he in turn informed the contractor who informed the Assistant Engineer, PHE Department that there has been compliance with the order dated 28th April, 2010 as the work was stopped. Till date the Record of right has not been corrected by bringing the petitioner on record. A no-objection was obtained by the authorities from the Mouliks on 25.1.2010. From the letters disclosed it appears that work in the subject plot has been stopped, while the photographs show otherwise. Till date the Record of right has not been corrected by bringing the petitioner on record. A no-objection was obtained by the authorities from the Mouliks on 25.1.2010. From the letters disclosed it appears that work in the subject plot has been stopped, while the photographs show otherwise. There is no proof that the construction shown is in the subject plots, nor is there anything to identify the subject plot. In the absence of identification of the subject plots it cannot be held that there has been violation of the order dated 28.4.2010. One is not aware if the project was undertaken in the subject plots. The petitioner has also not taken any step to correct the Record of rights. The Contempt of Court Rules of the Calcutta High Court specifically provides in Rules 4, 6 and 7 that the contumacious conduct complained of must be stated in the cause title (Rule 4) and also in the prayer portion (Rule 7). The petition must also contain full particulars of the materials on which the petition is grounded. In the petition there has been no compliance of Rules 4 and 7 of the Contempt of Court Rules of this Court. The acts of contempt has been levelled against all the respondents and against no particular respondent. Although it was submitted in the course of hearing that without the knowledge of the Sub-Divisional Officer, the alleged contemnor/respondent No.2 no work can be undertaken, but no such allegation has been levelled against him. There is no specific act of contempt attributed to any of the alleged contemnor/respondents and the only act of violation against the alleged contemnor/respondent Nos. 1 and 5 that could have been sustained is with regard to non-communication of its decision by the alleged contemnor/respondent No. 1 or 5. But here again the petitioner is not sure against whom he wants to proceed, therefore this act can also not be sustained and is rejected. Accordingly for non-compliance of Rules 4, 6 and 7 of the Contempt Rules of this High Court, this application is dismissed. In the event no copy of the order dated 25.6.2010 has been given to the petitioner, let such Order be communicated by the alleged contemnor/respondent No.1, the adjudicating authority within a week of receipt of this Order and the petitioner will be entitled to take steps in accordance with law.