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2014 DIGILAW 122 (CAL)

Salil Kumar Maiti v. Santosh Kumar Kala

2014-02-18

DIPANKAR DATTA

body2014
Judgment : 1. The rule for contempt arises out of an application for contempt [C.P.A.N. No.1155 of 2008] filed by the petitioner. It was alleged therein that the fifth respondent had wilfully and deliberately violated the order passed by me on December 3, 2007 while disposing of the writ petition of the petitioner [W.P. No. 8655(W) of 2006], whereby the fifth respondent was directed to “implement the order passed by him on 6.5.05 in accordance with law as early as possible but positively within four weeks from date of communication” of the order. 2. Upon consideration of C.P.A.N. No.1155 of 2008, I had granted liberty to the alleged contemnor-respondent (hereafter the respondent) to file counter affidavit. Having failed to file it, rule was issued on July 26, 2011. By an affidavit dated November 21, 2011, the respondent raised defence. During the pendency of the rule, the respondent applied for recalling/modification of the order dated December 3, 2007 (C.A.N. 2207 of 2012) together with an application for condonation of delay (C.A.N. 2206 of 2012) on March 7, 2012. 3. The rule and the applications have been heard together and shall stand disposed of by this common judgment and order. 4. W.P. No. 8655(W) of 2006 was presented before this Court by the petitioner on April 7, 2006. 3. The rule and the applications have been heard together and shall stand disposed of by this common judgment and order. 4. W.P. No. 8655(W) of 2006 was presented before this Court by the petitioner on April 7, 2006. It was alleged therein that the private respondents had raised and were also raising unauthorised construction on property belonging to a particular trust of which the petitioner is the secretary; that several complaints were lodged by the petitioner before the respondent, who was the prodhan of the local gram panchayat for taking steps to demolish the unauthorised construction but the same did not yield any result; that ultimately the secretary of the local gram panchayat by his letter dated May 6, 2005 informed one of the private respondents of the fact of raising of pucca construction on trust property by him without obtaining permission of the local gram panchayat and that he was required to stop further unauthorized construction and to demolish whatever construction had been raised unauthorisedly; that the respondent too by his letter dated May 9, 2005 complained to the local officer-in-charge against the private respondents on similar lines requesting appropriate action; and that despite issuance of the aforesaid letter and complaint dated May 6, 2005 and May 9, 2005 respectively, no action was taken by the panchayat as well as the officer-in-charge. Prayer was, accordingly, made for direction on the official respondents to pull down the unauthorised construction. 5. None had appeared for the respondent on December 3, 2007 before me. The petitioner and the private respondents were represented by their respective learned advocates. Having heard them, the aforesaid direction (noted in paragraph 1) was passed while disposing of the writ petition. 6. Having perused the application filed by the respondent for condonation of delay in presentation of his application for recalling/modification of the order dated December 3, 2007, I am of the considered view that sufficient cause has not been set up for grant of relief. C.A.N. No. 2206 of 2012 stands dismissed. Consequently, there is no need to look into the contents of the application for recalling/modification. C.A.N. No. 2207 of 2012 also stands dismissed. 7. Now the question as to whether the respondent has wilfully and deliberately violated the order dated December 3, 2007 is taken up for consideration. The respondent has raised various pleas for not complying with the order dated December 3, 2007. C.A.N. No. 2207 of 2012 also stands dismissed. 7. Now the question as to whether the respondent has wilfully and deliberately violated the order dated December 3, 2007 is taken up for consideration. The respondent has raised various pleas for not complying with the order dated December 3, 2007. One such plea borders on impossibility of compliance. But for a patent error in the said order, the pleas raised would have been held to be untenable. 8. Although not specifically urged as a ground by the respondent in defence in the counter affidavit filed by him while answering the rule, the patent error in the order alleged to have been violated, referred to above, opens a window for the respondent to escape the rigours of contempt proceedings. It is settled law that proceedings in contempt are quasi-criminal in nature and therefore the Court has to be convinced beyond all shades of doubt that the alleged contemnor has violated its order to undermine its dignity, majesty and prestige. That does not appear to be the case here. The direction in the order dated December 3, 2007 required the respondent to implement his order dated May 6, 2005. It does not appear from the writ petition that the respondent had issued any order dated May 6, 2005. The order dated May 6, 2005 was issued by the secretary of the local gram panchayat, whereas the respondent by his letter dated May 9, 2005 had complained to the local officer-in-charge of unauthorised construction that was raised/being raised by the private respondents and requesting him to take steps against them for violation of law. The petitioner never approached the Court for correction of the said order and allowed it to attain finality. In contempt proceedings, it is not open for the Court to add to an order or to subtract anything therefrom. Whether or not contempt has been committed has to be examined on the basis of whatever the order directs. The order dated December 3, 2007, insofar as the respondent is concerned, is impossible to comply. True it is that the burden ordinarily lies on the person raising such a defence but on facts and in the circumstances, I cannot ignore the error from which the order dated December 3, 2007 suffers. The order dated December 3, 2007, insofar as the respondent is concerned, is impossible to comply. True it is that the burden ordinarily lies on the person raising such a defence but on facts and in the circumstances, I cannot ignore the error from which the order dated December 3, 2007 suffers. Impossibility of compliance with the Court’s order is a good ground of defence and since I am not fully convinced of the contempt alleged to have been committed by the respondent, the rule has to be discharged. It is ordered accordingly, and CPAN No. 1155 of 2008 stands dismissed. 9. There shall be no order for costs. Photostat certified copy of this order, if applied for, shall be made available to the applicant at an early date.