Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 681 (CAL)

Md. Salauddin v. Gorachand Mondal

2014-07-25

INDIRA BANERJEE

body2014
Judgment INDIRA BANERJEE, J. This application for contempt is for violation of an order dated 25th August, 2006 passed by His Lordship Jyotirmoy Bhattacharya whereby the authorities of Kolkata Municipal Corporation were restrained from demolishing any part of premises No.8E, Dent Mission Road, Kolkata, hereinafter referred to as ‘disputed premises’. The case has a checkered history and there have been diverse proceedings in this Court and diverse orders in connection with demolition of alleged unauthorized construction at premises No.28, Karl Marx Sarani, Kolkata. From the pleadings as also the submissions made on behalf of the respective parties, it appears that 28, Karl Marx Sarani, Kolkata is adjacent to premises No.8E, Dent Mission Road, Kolkata. The question before this Court is, whether the respondents were deliberately under the garb of removal of unauthorized construction at premises No.28, Karl Marx Sarani, Kolkata, demolishing and/or trying to demolish the building at premises No.8E Dent Mission Road, Kolkata. Writ petition No.1170 of 2006 was filed by the petitioners who claim to be the owners of premises No.8E, Dent Mission Road, Kolkata, seeking protective orders restraining the authorities of Kolkata Municipal Corporation from demolishing 8E, Dent Mission Road, Kolkata or any part thereof. After the order dated 26th August 2006, of which violation has been alleged, was passed, the authorities of Kolkata Municipal Corporation filed an application being G.A. No.330 of 2006 seeking modification of the said order by allowing the said authorities to remove the boundary wall at the entrance of 8E, Dent Mission Road, Kolkata. The said application is still pending. In this contempt application it is alleged that with full knowledge of the order dated 25 August, 2006 the contemnors deliberately demolished the boundary wall between premises No.8E, Dent Mission Road, Kolkata and premises No.28, Karl Marx Sarani, Kolkata and thereafter started demolishing the second floor and the asbestos shed erected above the second floor of premises No.8E, Dent Mission Road, Kolkata. By an order dated 21st December, 2011 the Court appointed a Special Officer to inspect premises No.28, Karl Marx Sarani, Kolkata and No.8E, Dent Mission Road, Kolkata and to submit a report on the structures at the respective premises. By an order dated 21st December, 2011 the Court appointed a Special Officer to inspect premises No.28, Karl Marx Sarani, Kolkata and No.8E, Dent Mission Road, Kolkata and to submit a report on the structures at the respective premises. The learned Special Officer was further directed to ascertain how many buildings were there at No.8E, Dent Mission Road, Kolkata and how many buildings were there at 28, Karl Marx Sarani and to further ascertain which of the two buildings at the two premises had been demolished. Pursuant to the order dated 21st December, 2011, the learned Special Officer visited the locale upon notice to all the parties and filed his report along with photographs. In the report it was stated that the building which had been demolished was the building at No.8E, Dent Mission Road, Kolkata. On 4th January, 2012 this Court issued a rule of contempt against the contemnor Nos.2 and 3. The said contemnor respondents have filed their affidavit-in-opposition to which the petitioners have filed a reply.The alleged contemnors have also filed an affidavit taking exception to the report of the learned Special Officer and the petitioner has filed his reply thereto. The order of demolition was in respect of Premises No.28 Karl Marx Sarani, Kolkata. There was also an order of the Special Officer (Building), Kolkata Municipal Corporation dated 16th January, 1986 directing that no part of the building No.8E, Dent Mission Road, Kolkata be demolished without notice to the owner. According to the petitioner, premises No.8E, Dent Mission Road, Kolkata comprises an area of approximately 7 Cottah and 12 Chittaks. The said premises was acquired by the petitioner and his brothers and relatives by deed of conveyance dated 21st July, 1990 and a deed of gift dated 29th January, 1985. The deed of conveyance covered 4 Cottah and 12 Chittaks of land and the deed of gift covered about 3 Cottah. Both the deed of conveyance and deed of gift were, according to the petitioner, duly registered. It appears that on 20th March, 1963 the predecessor-in-interest of the petitioner namely one Smt. Rajia Begam had applied for sanction of a building plan from Kolkata Municipal Corporation with regard to premises No.8E, Dent Mission Road, Kolkata, by paying sanction fee of Rs.32,450. Kolkata Municipal Corporation sanctioned the building plan pursuant to the said application. It appears that on 20th March, 1963 the predecessor-in-interest of the petitioner namely one Smt. Rajia Begam had applied for sanction of a building plan from Kolkata Municipal Corporation with regard to premises No.8E, Dent Mission Road, Kolkata, by paying sanction fee of Rs.32,450. Kolkata Municipal Corporation sanctioned the building plan pursuant to the said application. A building was constructed in accordance with the building plan sanction vide Building Sanctioned No.809(iv) dated 28th March, 1963. In 1993, one of the co-owners of the said premises No.8E, Dent Mission Road, Kolkata, namely Ansar Ahmed applied for sanction of another building plan on the remaining portion of the said premises, measuring about 4 Cottah and 12 Chittaks. The Kolkata Municipal Corporation Sanctioned the Building Plan vide Sanction No.5 dated 30th April, 1993, after which another building was constructed. In 1986, one Sunil Mondal of Kolkata Municipal Corporation started alleging that an unauthorized two storied building had been constructed at premises No.28, Karl Marx Sarani. The order dated 16th January, 1986 of the Special Officer (Building) Kolkata Municipal Corporation was passed pursuant to such complaint. It is alleged on the pretext of demolition of 28, Karl Marx Sarani, Kolkata, Kolkata Municipal Corporation first demolished the boundary wall separating premises No.28, Karl Marx Sarani and the adjacent premises being 8E, Dent Mission Road, Kolkata, which had allegedly been in existence for almost a century. The authorities of Kolkata Municipal Corporation thereafter entered 8E, Dent Mission Road, Kolkata and demolished the second floor and the temporary asbestos shade erected above the second floor in flagrant violation of the order dated 25th August, 2006. On behalf of the alleged contemnor respondents, it has been submitted that there were orders of this Court directing the authorities of Kolkata Municipal Corporation to demolish the unauthorized construction at premises No.28, Karl Marx Sarani, Kolkata. The alleged contemnor respondents and/or other officials and employees of Kolkata Municipal Corporation were only carrying out the aforesaid orders. The alleged contemnor respondents have referred to an order dated 22nd July, 2004, whereby Pranab Kumar Chattopadhyay, J., appointed a Special Officer to identify the unauthorized two storeyed structure at 28, Karl Marx Sarani. By a subsequent order dated 26th September, 2005, K.J. Sengupta, J., asked one parties to produce respective documents and municipal authorities to produce relevant records to help the Special Officer to identify the unauthorized structure. By a subsequent order dated 26th September, 2005, K.J. Sengupta, J., asked one parties to produce respective documents and municipal authorities to produce relevant records to help the Special Officer to identify the unauthorized structure. Pursuant to the order dated 26th September, 2005 of K.J. Sengupta, J., the Special Officer filed a report stating that 8E, Dent Mission Road, Kolkata was a separate municipal holding different from 28, Karl Marx Sarani. The Special Officer found a two storeyed building on the right side of the 28, Karl Marx Sarani, but no other two storeyed building within the boundary of the said premises. The owner of 28, Karl Marx Sarani filed a writ petition No.2280 of 1999 whereupon Jayanta Kumar Biswas, J., passed an order dated 29th March, 2006 directing Kolkata Municipal Corporation to enforce its own order according to its plans and records, after demarcating the property that was to be demolished. The Kolkata Municipal Corporation was, however, given liberty to hear the parties and listen to their views. On behalf of the alleged contemnors it is stated that an application was filed for orders on the municipal authorities to comply with the earlier order of Jayanta Kumar Biswas, J., whereupon Debasish Kar Gupta, J., passed orders on 12th July, 2008 and 29th April, 2010, in pursuance of which demolition work is in progress. There is no order for demolition of Premises No. 8E, Dent Mission Road. On the other hand, the respondents were restrained from doing so. An application was moved in W.P. No.2280 of 1999 complaining that instead of carrying out demolition work at premises No.28, Karl Marx Sarani, a portion of 8E, Dent Mission Road, Kolkata had been demolished. Contempt proceedings are quasi criminal in nature and personal to the alleged contemnor respondents. The entire issue in this contempt application is whether the contemnor respondents deliberately, wilfully violated any order of Court with a view to lower the majesty and dignity of this Court. In other words, the question is whether the respondents have demolished No.8E, Dent Mission Road, Kolkata, and if so whether the demolition of premises No.8E, Dent Mission Road, Kolkata, was deliberate. There is preponderance of materials on record which reveals that the authorities of Kolkata Municipal Corporation commenced demolition of part of a building at premises No.8E, Dent Mission Road, Kolkata. There is preponderance of materials on record which reveals that the authorities of Kolkata Municipal Corporation commenced demolition of part of a building at premises No.8E, Dent Mission Road, Kolkata. There can hardly be any doubt that the authorities of Kolkata Municipal Corporation have acted in a careless and negligent manner without proper application of mind. The respondent authorities were bound and obliged to first demarcate premises No.28, Karl Marx Sarani cordon of the said premises and identify the unauthorized structure and then commence demolition. This exercise has apparently not been done. It is well settled that there can be no contempt of Court unless there is willful culpability on the part of the concerned condemnor as held by the Supreme Court in SS Roy Vs. State of Orissa and Ors. reported in AIR 1960 SC 190 . There can be no doubt that disobedience of a clear and unambiguous Order of Court, not capable of more than one interpretation, would amount to contempt of Court. In such a situation, there can be no laxity as otherwise Court orders would become the subject of mockery and the Courts would be rendered useless. However, contempt being a powerful weapon in the hands of the Court for the purpose of imbibing confidence in the people and to ensure due and proper administration of justice, the powers of contempt should be exercised cautiously, after the Court is satisfied beyond doubt of the guilt of an accused condemnor. This proposition finds support from Anil Ratan Sarkar and Ors. Vs. Hirak Ghosh and Ors.reported in (2002) 4 SCC 21 . In Proceedings for contempt deliberate disobedience of an Order with full knowledge must be proved beyond reasonable doubt. This proposition finds support from the judgment of the Supreme Court in Aligarh Municipality Vs. E.T. Mazdoor Unionreported in AIR 1970 SC 1767 . To quote Denning, J., speaking for the Court of Appeal, Civil Division in Re Bramblevale Ltd. reported in [1969] 3 All E.R. 1062: “…A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. It is true that there is a specific injunction restraining the respondents from demolishing 8E, Dent Mission Road, Kolkata. It is equally true that there were express orders of this Court directing the corporation authorities to carry out demolition of unauthorized construction at 28, Karl Marx Sarani. This Court is, however, unable to penalize the alleged contemnor respondents for contempt, as on the basis of the materials on record this Court is unable to conclusively arrive at the finding that demolition of premises No. 8E, Dent Mission Road, Kolkata, was done deliberately, in violation of the order of injunction, with a view to lower the dignity and majesty of this Court. Even otherwise, contempt is a matter between Court and the contemnor and it is open to the Court to pass orders preventing further contempt without penalizing the contemnors. In view of the specific order this Court restraining the respondents from demolishing any part of 8E, Dent Mission Road, Kolkata, the respondents are restrained from demolishing the building, the second and third floors of which have been demolished. It will be open to the owners to restore the building to its original state and claim damages against Kolkata Municipal Corporation by initiation of appropriate proceedings, if so advised. The contempt application is thus disposed of.