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Gujarat High Court
Judgename :A.R.Dave, R.BALIA
SEVAKRAM PRABHUDAS - Appellant
Versus
H.S.PATEL - Respondent
MISC.CIV.APPLN. 1656 of 1997
Decided On : 08/23/1999
In these circumstances, we are of the opinion that but for self-restraint, after the expiry of period granted by the Court for voluntary removal of the cabins from site, the respondents, in legitimate exercised of their authority, could have removed the cabins notwithstanding the appeal being pending, in absence of any order from the Court, without inviting the provisions of contempt of Courts Act. That being so, if the action cannot fall within the purview of Contempts but for the alleged undertaking, we must repel the contention that the impugned act independent of civil contempt, also amounts to criminal contempt.
[Para 21]
(b) Contempt of Courts Act, 1971 (Central Act 70 of 1971) - Secs. 2(b) 2(c) & 15 - Removal of encroachment - Removal of cabins - Undertaking - Breach of under-taking - Such statement was made in Court - Whether it amount to statement on undertaking in Court - When nothing is recorded in proceeding of Court on 20.8.1997 - Whether it amount to consent of Corporation through counsel - Whether amount to civil contempt - The action of respondent strictly does not fall with in scope of civil contempt.
Therefore, cannot say that it is satisfactorily established that any statement to the Court was made by Mr. Shelat as an undertaking to the Court with a view to obtain any favourable order or relaxation from the Court or on the faith of which the Court sanctioned particular course of action.
[Para 40]
With these conclusions, we are of the opinion that the action of the respondents which took place between the hearing of 20th August 1997 and 21st August 1997 strictly does not fall within the scope of civil contempt.
[Para 41]
(c) Contempt of Courts Act, 1971 (Central Act 70 of 1971) - Secs. 2(b), 2(c) & 15 - Removal of cabins - Matter subjudice in High Court - Consent of counsel for not removing of cabin - Cabin removal/demolish - Jurisdiction of Court restoration status quo ante - Consideration of - The question of status quo ante to be subject matter of appeal, hence can be decided there.
It has granted an order of maintaining status quo prospectively so that no further demolition of cabins, if still existing, may take place and that appropriate orders about restoration should follow only after the issue about the right of the applicants to continue on site as decided which was subject- matter of appeal, lest it may contravene the directions issued by the Supreme Court as interpreted by the learned single Judge.
[Para 44]
(d) Contempt of Courts Act, 1971 (Central Act 70 of 1971) - Secs. 2(b), 2(c) & 15 - Undertaking to maintain status quo - Breach of undertaking - Wilful breach of undertaking - Unconditional apology - Contempt of Court - Whether unconditional apology can be accepted - Whether unconditional apology exonerate the contemner contention - Validity of undertaking - Even for assumption case of wilful breach of untertaking is made on would accept unconditional apology, notice discharged respondent 1 and 2-A to pay Rs. 5,000/- each as cost.
The majesty of law lies not only in punishing the contemner but is also reflected in showing mercy to the real repentant. We, therefore, in the circumstances, even on assumption that case for wilful breach of undertaking given to Court is made out, would accept the unconditional apology tendered by respondent No.2A and respondent No.1 before commencement of hearing and expression of opinion abandoning all pleas of justification assuming the alleged acts of demolition of cabins amounts to breach of undertaking by respondents No. 1 and 2A as persons responsible for conduct of business of the Corporation.
[Para 49]
We discharge notices in each case. However, the cost of these proceedings shall be borne by respondent No.1 and respondent No. 2A which we quantify at Rs. 5,000 each.
[Para 55]
( 1 ) THESE two applications Nos. 1656 of 1997 and 1657 of 1997 are arising in connection with the same incident which took place in the city of Vadodara on 21. 8. 1997 which resulted in demolition and removal of the cabins of the applicants of these Misc. Civil Applications. The applicants claim to be having a common interest who were parties to the group of Special Civil Applications pending before this Court and which were decided by the common order dt. 7. 8. 1997 by the learned single Judge of this Court. As evidenced from the recorded facts in the judgment dated 7. 8. 1997 the petitioners had challenged the notices given to them by the Vadodara Municipal Corporation by which they were required to remove the encroachment made by them within 15 days of the receipt of the notice, failing which the corporation informed them that it would remove their encroachments at their expenses. Shorn of the contentions on merits, the petitions were dismissed on merits. The learned single Judge refused to stay the operation of the order to enable the petitioners to approach the appellate forum and made the following order on request being made in that regard:" The learned counsel for the petitioners have submitted that the petitioners desire to approach the appellate forum against this decision and furthermore there is monsoon season going and therefore, operation of this order may be stayed for some days to enable the petitioners to approach the appellate forum. The matter has been sufficiently prolonged and any further prolongation would be contrary to the final scheme which is approved by the apex Court and in respect of which it has been observed that there should not be proceedings which thwart the scheme. Any further interim relief would run contrary to the directions of the Supreme Court and therefore, it cannot be granted. The Deputy Commissioner for the Municipal Corporation and other officers who are present are however, agreeable for giving the petitioners one weeks time to remove their cabins and clear out. It is also stated that the Corporation will help them in shifting from the present place. Accordingly the petitioners will have one weeks time to remove the encroachments. "thus, within a period of one week the petitioners were to remove their cabins from the site in question. By a later order on an application being made in this behalf deadline was extended upto 20. 8. 1997. Copy of the order was made available to the petitioners on 12. 8. 1997. The appeal was filed on 14. 8. 1997. The intervening period being holiday, the appeal was posted for hearing before the Court on 20. 8. 1997. Thus the last date upto which the petitioners were required to remove their cabins voluntarily approached. The record of the LPA shows that no order was recorded on 20. 8. 1997 but the order dated 21. 8. 1997 reveals what transpired on 20. 8. 97. "notice returnable on 27. 8. 1997. Mr. P. G. Desai, learned counsel appears and waives service of notice on behalf of the Respondents No. 1 and 2. Direct service permitted for rest. BY way of ad-interim relief and without prejudice to the rights and contentions of the parties it is directed that the respondent authorities will maintain status quo as on today. AN allegation is made that after the matter was mentioned before us yesterday i. e. 20/08/1997 and before 11. 00 A. M. today i. e. 21/08/1997, demolition has already been effected in part of the disputed property. It is complained that yesterday a mention was made and matter was ordered to be kept today and to maintain status quo till today. In fact, at that time in presence of the learned counsel for the respondent authorities it was stated that no demolition will be effected till today. Mr. S. N. Shelat, learned counsel appearing for Mr. P. G. Desai confirms that such a statement was made and that it was conveyed by him to Deputy Municipal Commissioner Mr. H. S. Patel. Inspite of the said statement demolition has been partly effec
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