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2016 DIGILAW 451 (CAL)

Osman Ghani v. Khalil Ahmed

2016-05-20

SAMBUDDHA CHAKRABARTI

body2016
JUDGMENT : Sambuddha Chakrabarti, J. The present Rule arises out of an application for contempt filed by the petitioner (CPAN 1706 of 2015) for the alleged violation of two of my orders dated August 24 and August 28, 2015 respectively passed in W.P. No. 19460 (W) of 2015 (Osman Ghani Vs. Kolkata Municipal Corporation and Others). In the writ petition the allegation of the petitioner was that the private respondents had been making unauthorized construction adjacent to the premises of the petitioner. He had complained to the authorities of the Kolkata Municipal Corporation pursuant to which the Corporation had given them a hearing. Since despite two opportunities given the learned Advocate representing the corporation could not apprise the court about the outcome of the hearing I, by my order dated August 24, 2015 directed the Corporation to intimate the outcome of the hearing positively on August 28, 2015 and passed an interim order that the private respondents shall not make any further construction for a period of two weeks or until further whichever was earlier. The corporation authorities were specifically directed to see to it that the court’s order was complied with. On August 28, 2015 Mr. Ghosh, the learned Advocate for the Corporation informed the Court that the Corporation had issued a notice under Section 401 of the Kolkata Municipal Corporation Act (the Act, for short) on August 17, 2015 directing the private respondent to stop all works of construction including works of addition and alteration. On that date I directed that my earlier order should continue concomitantly with the order issued by the Corporation. They were directed to ensure that the order of the Court was not violated by the private respondents in any manner. If any, violation was detected by them it would be their duty to enforce the Court’s order in accordance with law. I further directed that if any unauthorized construction had been made by the private respondent the corporation authorities should pass necessary and consequential orders to that effect so that the unauthorized construction, if any, was not allowed to remain. The entire proceeding was to be completed within a period of eight weeks. By the present contempt application the petitioner has, inter alia, alleged that the copy of the first order passed by this Court was duly communicated to the alleged contemnor nos. The entire proceeding was to be completed within a period of eight weeks. By the present contempt application the petitioner has, inter alia, alleged that the copy of the first order passed by this Court was duly communicated to the alleged contemnor nos. 2, 3, 4 and 7 by hand service along with a letter dated August 26, 2015. The copy of the first order was also communicated to the private respondents, i.e., the alleged contemnor nos. 5 and 6 by speed post. Similarly, the petitioner had intimated both the orders by letters dated August 29, 2015 and September 6, 2015. But in spite of getting the said notices of the orders the alleged contemnors nos. 2 and 7 did not take any step to stop the illegal act of the private respondents. Relying on several photographs annexed to the application for contempt the petitioner has alleged that the private respondents had indulged in the work of construction even after the orders passed by this Court. Men and agents of the alleged contemnor nos. 5 and 6 had made both horizontal and vertical in the property in question at a double speed and thereby had been continuously were violating the orders passed by this Court. The grievance of the petitioner vis-à-vis the corporation authorities was that despite the specific direction given by the court upon the latter to see to it that the court’s order was complied with and in spite of having full knowledge of the orders the alleged contemnors nos. 1 to 4 and 7 did not take any step to stop the illegal construction made by the alleged contemnors nos. 5 and 6. The petitioner alleged that the alleged contemnors nos. 1 to 4 and 7 did not take any action by passing necessary orders or directions against the private respondents or by sending the police officers to remove such persons or assistants or workmen from the concerned premises to ensure that the work of construction did not continue. The specific grievances against the alleged contemnor no. 7 was that he did not take any step for implementing the order of stop work notice issued by the corporation and in spite of having complete knowledge of the order passed by this Court and thereby he had committed an act of contempt. The specific grievances against the alleged contemnor no. 7 was that he did not take any step for implementing the order of stop work notice issued by the corporation and in spite of having complete knowledge of the order passed by this Court and thereby he had committed an act of contempt. The petitioner has further alleged that the contemnors had deliberately, willfully and contumaciously violated the orders dated August 24, 2015 and August 28, 2015 and unless the court is pleased to deal with them suitably and took appropriate steps against the alleged contemnors under the Contempt of Courts Act, 1971, the dignity and majesty of the court would be completely diminished. After hearing the learned advocates for the petitioner on March 21, 2016, Rule was issued upon the alleged contemnor nos. 1, 2 and 3. Pursuant to the Rule issued all the contemnors were present in court and filed their respective answers to the Rule. The alleged contemnor no. 1 Mr. Khalil Ahmed is the Municipal Commissioner of the Corporation. His defence had been that the learned advocate for the petitioner addressed only one letter to him dated September 8, 2015 which was in the nature of a notice of contempt and the same was served upon the municipal secretary’s department. His further defence is that there has been an interim order passed by the learned District Judge, Alipore restraining the respondents therein from demolishing the existing structure of the premises in question. He, however, passed an order on April 20, 2016 so that the unauthorized construction did not remain. But in view of the interim order passed by the Civil Court he had instructed the Building Department to obtain the legal opinion as regards the execution of the order. Mr. Ahmed has admitted that the order had been passed beyond the period stipulated by the Court; but the delay has been caused due to reason beyond his control. After coming to know of the issue of the Rule he inquired of matter from the Building Department and called for the relevant records. There was no letter except the one dated September 8, 2015 (wrongly mentioned as September 4, 2015 in the affidavit) addressed to Mr. Ahmed communicating the order of the court. But neither any copy of the order of the court nor was the said letter of the learned advocate was ever placed before him. There was no letter except the one dated September 8, 2015 (wrongly mentioned as September 4, 2015 in the affidavit) addressed to Mr. Ahmed communicating the order of the court. But neither any copy of the order of the court nor was the said letter of the learned advocate was ever placed before him. He came to know of the said order only after receiving the subpoena in connection with the Rule of Contempt. The Building Department had intimated him that the unauthorized construction having been found notice under Section 400(1) of the Act was issued. Mr. Ahmed further submitted that the concerned engineer of the Building Department lost track of the matter as a result of wrongly tagging the file of the instant case with other files. Consequently, no notice of hearing could be served upon the parties. But after receiving the Subpoena of the Rule he made no delay to take up the matter to ultimate disposal of the case and on his instruction notices were issued for April 20, 2015 as the date of hearing for the case. However, “at that juncture” an order of the Civil Court was brought to his notice and he found that the learned District Judge had passed an order to which reference has been made before. The alleged contemnor no. 1 tendered his apologies in case any of his act is considered as violative of the order passed by this Court. Similarly, Sri. Anindya Karforma, the Director General (Building) of the Corporation and the alleged contemnor no. 2 has filed his answer to the Rule. He has largely reiterated the facts as well as the defence taken by the alleged contemnor no. 1. He too has mentioned that the Municipal Commissioner had taken up the matter relating to unauthorized construction at the premises in question. He also says that his office had received only one letter dated September 8, 2015 from the learned Advocate for the petitioner and as soon as the said letter was placed before him the alleged contemnor no. 2 had issued necessary instruction to the Deputy Chief Engineer for taking necessary steps in the matter. Like the alleged contemnor no. 1 Mr. 2 had issued necessary instruction to the Deputy Chief Engineer for taking necessary steps in the matter. Like the alleged contemnor no. 1 Mr. Karforma had also taken the stand that after coming to know of the issue of Rule he had enquired of the matters from different persons and made an endorsement of instruction to the Deputy Chief Engineer to take necessary steps in the matter in view of the order of the Hon’ble Court. He was under an impression that the matter was being dealt with at the appropriate level and the demolition proceeding once initiated proceeded in the usual course to its logical conclusion. The progress of demolition proceeding was not done due to the inadvertent mistake on the part of the concerned engineer. The alleged contemnor has adopted all the contentions relating to this aspect of the matter as made by the alleged contemnor no. 1. He also tendered unqualified apology in case his explanation did not appear to be satisfactory. Sri Nishi Kanta Bhowmik, the Deputy Chief Engineer (Civil Building)/ the Executive Engineer (Civil), Borough VII, of the Kolkata Municipal Corporation and the alleged contemnor no. 3 has also filed a separate answer to the Rule. His defence is mutatis mutandis almost the same to the answers given by the other two contemnors, particularly that of the alleged contemnor no. 2. He also has tendered unqualified apology in case any of his acts were found to be violative of the order of the Court. The defence taken by the alleged contemnor no. 1 about the lack of knowledge of the order or the failure on the part of the officials of the Corporation to place the matter before him is not a very new defence being taken by him. It may be mentioned that in connection with another Rule being CC No. 24 of 2016 arising out of W.P. No. 1154 of 2015 Mr. Ahmed, figuring as the alleged contemnor, had taken the same plea. There also his defence was that after getting to know of the issue of Rule against him he enquired of matter from the Building Department and called for the records in connection with the alleged unauthorized construction at the concerned premises involved in that application. Ahmed, figuring as the alleged contemnor, had taken the same plea. There also his defence was that after getting to know of the issue of Rule against him he enquired of matter from the Building Department and called for the records in connection with the alleged unauthorized construction at the concerned premises involved in that application. He further submitted that the order was not placed before him and the concerned department should have taken up the matter with utmost sincerity and should have brought the entire issue to his notice. The answer of the Rule in that case was affirmed on April 15, 2016 by Mr. Ahmed. If the same defence is taken in respect of different contempt proceedings it does not speak very highly of the administration of the Corporation that the subordinates are negligent in discharge of their duties, rendering the defence vulnerable to sceptic acceptance. In the earlier contempt application it was submitted that the person responsible had been placed under suspension. In the present case there was no such statement made by the alleged contemnor no. 1. The petitioner has brought on record certain photographs in support of the case that the entire building has almost been constructed. Mr. Banerjee the learned Senior Counsel appearing for the alleged contemnors has primarily laid stress and was more concerned with on the order of injunction passed by the Civil Court in respect of the same premises whereby the respondents in that appeal were restrained from demolishing the existing structure in the suit property. Mr. Banerjee submitted that the order of the Civil Court had been passed subsequent to the order passed by this Court and described it as an aberration of the legal procedure. From the affidavit used by the alleged contemnor no. 1, and adopted largely by the other two alleged contemnors, one finds a sequence of events. After referring to the notice issued to the parties for a hearing on April 20, 2016 the alleged contemnor no. 1 had stated that ‘‘at that juncture’’ the order of the Civil Court was brought to his notice. 1, and adopted largely by the other two alleged contemnors, one finds a sequence of events. After referring to the notice issued to the parties for a hearing on April 20, 2016 the alleged contemnor no. 1 had stated that ‘‘at that juncture’’ the order of the Civil Court was brought to his notice. The use of the expression “at that juncture” creates an unmistakable impression that the concerned departments of the Corporation had received copies of the order of the Civil Court after April 20, 2016 whereas from the copy of the communication produced in Court it appears that the same was received by different departments of the Corporation in the first week of September, 2015. For example, the office of the Director General (Building-II) had received it on September 3, 2015 and the office of the Executive Engineer (Building), Borough VII was served on September 8, 2015. The affidavit of the Director General (Building) makes no reference to the same, although he has stated that he had been advised to adopt all the contentions relating to the demolition proceeding as taken by the alleged contemnor no. 1. One does not really understand why the order of the Civil Court was mentioned by the alleged contemnor no. 1. After all Kolkata Municipal Corporation or any of its authorities was not of party to it and the direction passed by the learned District Judge at Alipore was upon the respondents to the appeal. It is found from the affidavits of the alleged contemnors that the emphasis has been uopn how soon they initiated a proceeding under Section 400(1) of the Act after being served with notices of the Rule. The alleged contemnors have admitted that there has been delay in disposing of the matter relating to unauthorized construction in terms of the direction of the High Court. After coming to know of the issue of Rule, the alleged contemnors in a voice have claimed not to have made any further delay in initiating proceeding for demolition of the unauthorized construction. But that was not the whole of the direction passed by me on August 24 and August 28, 2015 respectively. The allegation of the petitioner has not so much been on the failure of the alleged contemnors to initiate the demolition proceeding. But that was not the whole of the direction passed by me on August 24 and August 28, 2015 respectively. The allegation of the petitioner has not so much been on the failure of the alleged contemnors to initiate the demolition proceeding. His primary allegation has been that the alleged contemnors did not take adequate steps to stop the illegal construction made by the contemnors nos. 5 and 6. As mentioned above, on August 24, 2015, I passed an interim order and directed the respondents to see to it that the Court’s order was complied with. And on August 28, 2015, I specifically directed that the earlier order restraining the private respondents from not making any construction would continue concomitantly with the order issued by the Kolkata Municipal Corporation. It was the responsibility of the authorities of the Corporation to ensure that the order was not violated by the private respondents and if any violation was detected by the Corporation authorities it would be their duty to enforce the Court’s order in accordance with law. This part of the order called for a certain degree of vigil on the part of the alleged contemnors nos. 2 and 3 so that the Court’s order could be complied with and the unauthorized construction did not any further take place. When the petitioner produced photographs evincing the construction of work by the private respondents to the writ petition it became clear that the Corporation authorities had failed to discharge their duties. Under the circumstances it was only expected that they would make an inspection of the premises and would have kept the law enforcing agency informed of the order so that the order could be enforced. I passed the earlier orders in presence of the learned Advocates for the parties. The Corporation did not file any appeal and had thereby accepted the order. But nevertheless they did not comply with the order either. There is no explanation given by any of the alleged contemnors nos. 2 and 3 why this part of the order was allowed to be flouted or why they allowed the private respondents to the writ petition to go on making the construction. Thus, a very major part, if not the primary allegation in the application for contempt, remains unanswered and unexplained. 2 and 3 why this part of the order was allowed to be flouted or why they allowed the private respondents to the writ petition to go on making the construction. Thus, a very major part, if not the primary allegation in the application for contempt, remains unanswered and unexplained. It appears that the inspection was made at a much later date and demolition proceeding was hurriedly issued by the alleged contemnors after the service of the Rule. That may explain their conduct after the initial delay. But they should have taken steps long before. It leaves no manner of doubt that if the alleged contemnors had taken the order of the Court seriously, curative measures might be taken by them. All the three alleged contemnors have mentioned that the Corporation had received ‘only’ one letter from the learned Advocate for the petitioner. That is quite sufficient for the authorities to comply with the order. Repeated reminders are not required to be given to the respondents. An authority who tends to treat the direction given by the Court with all sincerity and to comply with it should treat a solitary communication to be sufficient. Even if the alleged contemnor no. 1 alleges that nothing was placed before him at the relevant point of time the same does not apply to the other two contemnors. The alleged contemnor no. 2 admits to have received the communication from the learned Advocate for the petitioner and made certain endorsements thereon. And thereby he probably ended his responsibility. It was imperative for him to have pursued the matter to ensure the compliance of the Court’s order. The alleged contemnor no. 3 who too was served with a similar communication makes no reference to what he did thereafter. Law on the point is fairly well settled that compliance with the order of the court after the issue of the Rule does not necessarily absolve an alleged contemnor of his liability. A proper compliance of the Court’s order means not only its obedience at any point of time but a timely implementation. It is true that even after the issue of the Contempt Rule if an order is not complied with that makes things worse. But compliance after the notices of Rule are received does not qualify it to be called a proper compliance per se. The alleged contemnors nos. 2 and 3 very senior officials. It is true that even after the issue of the Contempt Rule if an order is not complied with that makes things worse. But compliance after the notices of Rule are received does not qualify it to be called a proper compliance per se. The alleged contemnors nos. 2 and 3 very senior officials. It was only expected of them that they would treat the Court’s order with the reverence that it deserved and would have attached due importance to it. The answers to the Rule given by the alleged contemnors nos. 2 and 3 leave much to be expected of them. Mr. Banerjee also failed to address the primary issue raised in the contempt application. In the absence of any explanation about what prevented them from enforcing Court’s order of restraining the private respondents from carrying on with the work of construction, the violation of the orders of the Court must be taken to be willful. The alleged contemnor no. 1 has taken a point that the relevant papers including the Court’ order were not placed before him. I have already made my observation on the defence taken by him. But in the absence of anything to the contrary being proved by the petitioner he may be given the benefit of doubt. But, I hold the alleged contemnors nos. 2 and 3 guilty of contempt. I further hold that the contempt committed by them is of such nature that it tends to interfere with the administration of Justice. But considering the fact that they have tendered apologies, I do not propose to pass any sentence of imprisonment and consider that a sentence of fine will be sufficient for the purpose. I sentence the contemnors nos. 2 and 3 to pay a fine of Rs.1,000/-each within a period of three weeks from the date of communication of the order. In default, each one of them will suffer Simple Imprisonment for five days. Rule stands discharged. There shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities. Later: After I dictated the order Mr. Ghosh submitted that in view of the ensuing Summer Vacation the time limit to put in the fine may be extended to four weeks, instead of three weeks. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities. Later: After I dictated the order Mr. Ghosh submitted that in view of the ensuing Summer Vacation the time limit to put in the fine may be extended to four weeks, instead of three weeks. When I fixed the timeframe for putting in the amount of fine I had taken the Summer Vacation into consideration and deliberately had granted a week more for the contemnors Nos. 2 and 3 to take appropriate steps.