Municipal Corporation Of Greater ... vs Ishwar Naidu And Ors.
2001 Latest Caselaw 762 Bom

JUDGMENT

D.B. Bhosale, J.

1. This group of eight contempt appeals, is directed against the common judgment and order dated January 8, 1997 passed by the learned Single Judge in eight contempt petitions, holding the appellants guilty of civil contempt under section 2(b) of the Contempt of Courts Act, for disobeying the order passed by this Court dated 7th September, 1997. The appellant Nos. 2 to 5 in all these appeals are directed to undergo simple imprisonment of one month and fine of Rs. 1,000/- and their sentence in all the appeals is to run concurrently. The appellant No. 1 Municipal Corporation of Greater Bombay being a Corporate body is ordered to pay only fine of Rs. 2,000/- in each of the contempt petition.

2. The facts giving rise to the instant appeals are identical. For the sake of convenience and for better appreciation the facts in the Contempt Appeal No. 8 of 1997, in brief are adverted to: The respondent was in use and occupation of the structure bearing Gala No. 5 admeasuring 4.70 to 4.80 mtrs. situated at Andheri (West), for last more than 20 years and has been carrying on business in the said structure. In pursuance of the threat of demolition by the appellants, the respondents in all these appeals filed one single suit, which ultimately was withdrawn and eight separate suits were filed. Ad interim relief was refused by the City Civil Court and being aggrieved by that order, appeal from order was preferred before this Court. In A.O., the learned Counsel for the respondent No. 1 made a statement that no action would be taken in respect of disputed structures without following due process of law and in view thereof this Court disposed of the appeals. Thereafter on 26th November, 1992, notice under section 351 of the Bombay Municipal Corporation Act (for short "B.M.C. Act") was issued to all the respondents which led to the second suit filed by the respondent for ad interim order and on refusal to grant ad interim order, the appeals were filed in this Court and they were disposed of by granting interim order in favour of the petitioners till the disposal of the notice of motion. The notice of motion was disposed of by the trial Court on 29th March 1994, whereby the trial Court directed the Deputy Municipal Commissioner to give personal hearing to the respondents before passing the order of demolition. After complying with the directions of this Court, the order of demolition was passed and the respondents were directed to remove the structure within a period of six weeks from receipt of the order. Upon receipt of the order from the Deputy Municipal Commissioner, the respondent served a notice under section 527 of the B.M.C. Act upon appellant No. 1, and then filed the suit afresh and prayed for ad-interim relief. Ad interim relief was refused by the City Civil Court which ultimately led the respondent to file appeal before this Court.

In appeal, civil application was taken out and on 7th September, 1995, after hearing the Counsel for the parties including the Counsel for the appellants, this Court granted ad interim relief in terms of prayer Clause (a), pending admission. Accordingly the respondents, their servants, agents, officers and other persons on their behalf were restrained from demolishing, removing or pulling down the suit premises or any part thereof or taking any action in pursuance of the notice under section 351 of the B.M.C. Act. Despite the injunction order passed by this Court on 7th September, 1995, the respondents demolished the structures on 20th September, 1995, giving rise to eight contempt petitions filed by the respondents in the aforesaid appeals.

3. All the eight petitions were allowed by the learned Single Judge by the judgment and order dated 8th January, 1997, holding appellants guilty under section 2(b) of the Contempt of Court Act, 1971, for disobeying the order passed by this Court on 7th September, 1995.

4. Aggrieved by the common judgment passed by the learned Single Judge, the appellants filed the present appeals. The appellants in appeals have filed fresh independent affidavits tendering unconditional apology to this Court for breach and violation of the order dated 7th September, 1995, passed by this Court, by reason of demolition of structure of the respondent on 20th September, 1995. The appellants have endeavoured to explain the circumstances in which the action of demolition was carried out. All the respondents have filed almost identical affidavits.

5. The learned Single Judge after considering the material placed before him held that by demolishing the suit structures on 20th September, 1995 on the face of the order dated 7th September, 1995, appellant No. 1 and its officers viz. appellants Nos. 2 to 5 acted highly irresponsibly and with utter disregard to the order of this Court. After considering the pleadings and arguments advanced by the parties, it is ultimately held by the learned Single Judge that the appellants had full knowledge of the order dated 7th September, 1995, passed by this Court, in the presence of their Counsel and which was intimated by the Counsel for the respondents by communication dated 7th September, 1995, and it was also received by the appellants on 12th September, 1995. The learned Single Judge, therefore, held that despite knowledge of the injunction order, appellant in utter disregard of the said order, demolished the disputed structures which is nothing but intentional and deliberate act of disobedience of the order passed by this Court. While recording the finding about full knowledge of the order dated 7th September, 1995, the learned Single Judge, relied on two circumstances namely that the Counsel of the appellant was present when the order was passed and the order was intimated by the Counsel for the respondents vide communication dated 7th September, 1995 and it was received by the appellants on 12th September, 1995. An unconditional apology tendered by the appellants was not accepted by the learned Single Judge since he found that the apology was conditional and qualified and further that in the affidavit in reply, the appellants have set up incorrect and untrue stand that the letter dated 7th September, 1995 sent by the Counsel for the respondents was never received by them. It is also noted in the judgment that the appellant Nos. 2, 4 and 5 did not file any affidavit in reply nor have they tendered any apology. The affidavit was filed only by appellant No. 3 and the bald statement was made by the Counsel for the appellants that the affidavit of appellant No. 3 filed in Contempt Petition No. 298 of 1995 be treated as an affidavit in reply on behalf of all the appellants and in all the contempt petitions.

6. Mr. Sakhare, the learned Counsel for the appellants, at the outset invited our attention to the unconditional apology tendered by the appellants by filing an independent affidavits in all eight appeals. Although he contended that the apology tendered before the learned Single Judge was also unconditional apology, the appellants have now filed affidavits independently tendering apology, since the learned Single Judge refused to accept their apology holding that it was conditional and qualified and not tendered by all of them. Mr. Sakhare, contended that Order 39, Rule 2(a) of the Code of Civil Procedure, 1908, provides complete remedy and gives power to the Court to ensure that the order of the courts are obeyed. Pointing out that the Rule 2(a) empowers the Court to detain a person in civil prison or to pass such order to ensure that the orders are implemented and obeyed, it was contended that, recourse to the proceedings under Contempt of Court's Act was uncalled for. In support of this contention he placed reliance on the judgments of different High Courts which we will refer in later part of the judgment.

7. Mr. Sakhare, submitted that there should be conscious application of mind to the facts and material and before initiating the contempt proceedings, the Court must form an opinion that prima facie case for initiating proceedings for the contempt is required to be made out and it should reflect in the order. In the present case, according to him, the learned Judge, while issuing the rule, did not record any reason indicating conscious application of mind and in view thereof, there is no initiation of action within a period of one year as contemplated under section 20 of the Contempt of Courts Act, and on this ground of limitation alone the present proceedings should fail. In support of this proposition he placed reliance on the judgment of Apex Court in a case of Om Prakash Jaiswal v. D.K. Mittal and another, reported in 2001(1) Maharashtra Law Journal 333. Mr. Sakhare, thereafter submitted that the order dated 7th September, 1995 passed by this Court was not brought to the notice of appellant Nos. 2 to 5 before demolition on 20th September 1995. No material is placed on record to show that the appellants had personal knowledge of the order passed by this Court and hence benefit must be given to them since proceedings are quasi-criminal proceedings and the knowledge of the order must be proved beyond all reasonable doubts. In support of this proposition he placed reliance on the judgment of the Apex Court in a case of Bunna Prasad and others v. The State of Uttar Pradesh and another, . Lastly he contended that no special circumstances were recorded by the learned Single Judge before directing to undergo simple imprisonment of one month over and above fine of Rs. 1,000/-.

8. Mrs. Malwankar in opposition, contended that the appellant had full knowledge of the order passed by this Court on 7th September, 1995, since it was communicated by her letter dated 7th September, 1995, which was received by the Head Office of the appellant No. 1 and Ward Office of appellant No. 2 on 12th September, 1995. She further contended that the same letter was also presented when the appellant Nos. 3 to 5 had come on the spot with the demolition squad on 20th September, 1995. A xerox copy of her letter dated 7th September, 1995 with endorsement made on a copy of the letter with the seal of appellant No. 1 was placed on record. She further contended that even the Counsel for the appellant was present in the Court when the order was passed by this Court on 7th September, 1995 and in view thereof the appellant cannot deny the knowledge of the order. Despite all this, the appellant Nos. 2 to 5 have proceeded to demolish the suit structure in gross breach of the order passed by this Court. She commented on the conduct of appellant Nos. 2 to 5, which according to her was highly irresponsible act and it was deliberate and wilful disobedience of the order of this Court.

9. We, heard learned Counsel appearing for the parties at length and perused the impugned order and entire material placed on record.

10. We would first like to consider whether alternative efficacious and complete remedy under Order 39, Rule 2(a) of Code of Civil Procedure, was available to the respondent and in view of that whether this Court was justified in entertaining the contempt petitions for the breach of the order passed by this Court on 7th September, 1995? At the outset, in reply to our query, Mr. Sakhare, the learned Counsel appearing for the appellant fairly admitted that this objection was not raised before the learned Single Judge. In short, the objection of the alternative remedy was not raised before the learned Single Judge who dealt with the contempt petition holding the appellants guilty for the civil contempt. In view of this, we are afraid, this preliminary objection and/or challenge, although is a legal submission, cannot be entertained since it was not raised before the learned Single Judge. Having chosen to face the contempt proceedings, in our opinion the appellant at this stage cannot raise this contention particularly when Mr. Sakhare could not point out any total legal bar for this Court to entertain the contempt proceedings against the present appellants. Mr. Sakhare placed reliance on the following judgment of different High Courts including of this Court in support of his submission: Sitaram v. Ganesh Das, Smt. Indu Tewari v. Ram Bahadur Chandhari, Rudraiah v. State of Karnataka and others, order dated 15th December, 1995 passed by R.M. Lodha, J., in Contempt Petition No. 195 of 1995, Ulhasnagar Municipal Council v. Mohandas Kauromal Lalchandani, order dated 3rd July, 2000 passed by D.K. Deshmukh, J., in Contempt Petition No. 208 of 1992 Prakash Harivijay Chogle v. Vijay Nagar Corporation, one of the aforesaid judgments, is of the same learned Single Judge who has passed the impugned judgment in these appeals. We have gone through the judgments and in our opinion none of these judgments, relied upon by Mr. Sakhare, support his contention, that such an objection could be raised by him in these appeals and entertained for the first time in appeal. Apart from this in all these reports the breach committed was of the orders of the lower courts, whereas in the instant petition the alleged breach is of this Court. The judgments relied upon therefore, would not help the appellants.

11. The next issue, falls for our consideration is whether, the action of contempt was initiated within a period of one year as contemplated under section 20 of the Contempt of Court's Act and whether mere issuance of the "Rule" amounts to initiation of the contempt proceedings. In the light of the facts of the present case, can it be said that the cognizance was taken by the learned Single Judge within a period of one year from the date of alleged breach i.e. 20th September, 1995. Mr. Sakhare, placed heavy reliance on the judgment of the Apex Court in a case of Om Prakash Jaiswal's case (supra). In the said case before the Apex Court on 15th January, 1987, the notice was issued to the contemners "to show cause why contempt proceedings should not be initiated against them for defiance of order dated 19th December, 1986 passed by the Court in civil writ petition", meaning thereby, the contempt proceedings were not initiated by them. Thereafter on 6th January, 1988 after considering reply filed by the contemnor, the Court issued a notice to the contemnors "to show cause as to why the contemnors be not punished for disobeying the order dated 7th September, 1995" indicating thereby that proceedings are initiated after conscious application of mind. Supreme Court has made distinction between "issuance of notice to the contemnor to show cause as to why contempt proceedings should not be initiated" and "issuance of notice to show-cause why the contemnor be not punished for disobeying the order". The Apex Court after considering the orders passed on two different dates namely 15-1-1987 and 6-1-1988 in para 18 held thus:

Para 18:

"In the case at hand the order which was passed on 15-1-1987 had called upon the respondents only to show-cause why contempt proceedings be not initiated. After the cause was shown the Court was to make up its mind whether the initiate or not to initiate proceedings for contempt. It was not an initiation of proceedings. We will ignore the order dated 16-12-1987 as it was not signed. But the order dated 6-1-1988 issuing notices to the opposite parties to show-cause why they be not punished for disobeying the order dated 9-12-1986, shows and it will be assumed that the Court had applied its mind to the facts and material placed before it and had formed an opinion that a case for initiating proceedings for contempt was made out. Need for issuance of such notices was conceded to by the Advocate General as also by the Counsel for the respondents. That is why it directed the respondents to be called upon to show-cause why they be not punished for disobedience of the order of the Court. The proceedings were therefore initiated on 6-1-1988 and were within the limitation prescribed by section 20 of the Act. The impugned order directing dropping of the proceedings is based on an erroneous view of section 20 of the Act and hence is liable to be set aside."

12. Section 20 of the Contempt of Courts Act contemplates initiation of action within a period of one year. The action for contempt is divisible in two categories viz. that initiated suo motu by the Court and that instituted otherwise then on Court's own motion. The Apex Court recently in Pallav Sheth v. Custodian and others, reported in 2001(4) Maharashtra Law Journal (S.C.)1 had an occasion to deal with section 20 of the Contempt of Courts Act. In the report, the Apex Court has also considered the judgment in the case of Om Prakash Jaiswal (supra) and in para 42 observed that if interpretation of section 20 put in Om Prakash Jaiswal's case (supra) is correct, it would mean that notwithstanding both the subordinate Court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. In view of the observations made in the report, in para 42 in particular, the law laid down by the Apex Court in Om Prakash Jaiswal's case (supra) is no more a good law. Para 42 of the report reads thus:

"The decision in Om Prakash Jaiswal's case (supra) to the effect that initiation of proceedings under section 20 can only be said to have occurred when the Court formed the prima facie opinion that contempt has been committed and issued notice to the contemnor to show-cause why it should not be punished, is taking too narrow a view of section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate Court is committed a report is prepared whether on an application to Court or otherwise, and reference made by the subordinate Court to the High Court. It is only thereafter that a High Court can take further action under section 15. In the process, more often than not, a period of one year elapses. If the interpretation of section 20 put in Om Prakash Jaiswal's case (supra) is correct, it would mean that notwithstanding both the subordinate Court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the subordinate Court or the High Court making of a reference by a subordinate Court on its own motion or the filing an application before an Advocate General for permission to initiate proceedings is regarded as initiation by the Court for the purposes of section 20, then such an interpretation would not impinge on or satisfy the power of the High Court to punish for contempt which power, de hors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of section 20 would harmonise that section with the powers of the courts to punish for contempt which is recognised by the Constitution."

In view thereof, reliance placed by Mr. Sakhare on the judgment of Om Prakash Jaiswal's case (supra) in support of his contention that mere issuance of the "Rule" does not amount to initiation of proceedings within the meaning of section 20, is of no use to the appellants. We, therefore, are of the firm opinion that even issuance of the "Rule" does amount to initiation of contempt proceedings and it is conscious application of mind by the Court to the facts and material before it while issuing the "Rule". Undisputedly the initiation of contempt proceedings by the Court should be within a period of one year from the date of alleged breach, failing which jurisdiction to initiate any proceedings for contempt is lost. Section 20 of the Contempt of Courts Act read thus:

Section 20

"No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."

13. In the instant case, the order passed by this Court on 9th October, 1995, would, therefore, mean initiation of contempt proceedings, after conscious application of mind by the learned Single Judge. On 9th October, 1995, this Court passed the following order:

"Rule.

Expedited. Rule on interim relief. Returnable on 10-11-1995."

14. After the aforesaid order was passed, the notice was issued to the appellants. It is placed on record at page 39 of the paper book. The wording of notice is relevant for our purpose. The notice does mentions that "show-cause why action under Contempt of Courts Act should not be taken against you". This also indicates that after applying the mind to the facts and material placed before the Court, Rule was issued thereby calling upon the contemnor to show-cause why "action" under Contempt of Courts Act should not be taken against him. The word "action" aims at some penalty or punishment. In our view word "action" in the notice denotes the decision to take action and initiate a proceedings for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceedings for contempt.

In our opinion, the learned Single Judge after hearing, formed an opinion that prima facie case for initiating the proceedings for contempt is made out and issued "Rule" thereby calling upon the appellants to show-cause why they should not be punished. It is result of conscious application of mind to the facts and material placed before the Court. In this view of the matter we have no hesitation in holding that the issuance of "Rule" in the instant petition amounts to initiation of proceedings for contempt within a period of limitation prescribed under section 20 of the Contempt of Courts Act. We, therefore, reject the submission of Mr. Sakhare, that the present proceedings were barred by period of limitation under section 20 of the Contempt of Courts Act.

15. We now come to the next point whether the appellants who alleged to have committed breach of the order of this Court had personal knowledge about the order passed by this Court dated 7-11-1995 and have committed deliberate and wilful disobedience of the same. Mr. Sakhare, contended that in the present case the respondents have filed the contempt proceedings against the appellants with positive assertion that the appellants had personal knowledge of the order of this Court dated 7th September, 1995 and they have deliberately and wilfully committed breach thereof and therefore, they should prove the contempt beyond reasonable doubt. In view of this submissions the question arose for our determination is whether the appellants had personal knowledge, or in other words whether personal knowledge of the order of this Court can be attributed to the appellants.

16. Before the learned Single Judge, appellant No. 3 Shri Bharat Patil alone filed the affidavit in reply to the contempt proceedings, wherein he did specifically state that the order of this Court dated 7th September, 1995, was never communicated to the appellants by letter dated 12th September, 1995 as alleged by the respondent. It is also stated in the affidavit that action of demolition was taken by the appellants on 20th September, 1995 since the order of injunction was not communicated to the appellants. The respondent herein i.e. the petitioner in the contempt petition, in para 6 of the petition stated that on the spot when appellant Nos. 3 to 5 had reached for demolition, they informed the respondent that Mr. Madusudan Gandhi i.e. appellant No. 2, Ward Officer, issued instruction to demolish the suit structure since the injunction order was vacated on 12th September, 1995. The reference made to the order of vacating interim injunction dated 12th September, 1995, was to the order passed by the City Civil Court, Suit Nos. 5482 to 5489 of 1995. We are referring to the statement in contempt petition, in view of the specific defence of the appellants, that action of demolition was taken in pursuance of the order passed by the City Civil Court and which was communicated by the Assistant Law Officer, City Civil Court by his letter dated 9th September, 1995. There appears to be some error in respect of date 12-9-1995 mentioned in para 6 of the contempt petition. The communication of Assistant Law Officer shows that on 4th September, 1995 the Judge of the City Civil Court refused injunction and the Corporation was at liberty to proceed with their action and the compliance report was sought on or before 20th September, 1995. A copy of the letter signed by the Assistant Law Officer on 7th September, 1995, was received by the office of appellant No. 2 on 11th September, 1995 and seen by appellant No. 2 on 12th September, 1995 is placed on record in compilation of few xerox documents. We have marked this letter as "X-1" for identification. The other document enclosed, in compilation of xerox documents at page 2, indicate that the action of demolition was carried out after discussing with the Ward Officer in pursuant to the order passed by the Judge of the City Civil Court on 4th September, 1995. Page 3 and 4 of the compilation shows the notings on the file to that effect which are marked as X-II, X-III and X-IV for identification. On the basis of this noting it cannot be said that appellant Nos. 2 to 5 had any knowledge of the order dated 7th September, 1995. The documents X-I to X-IV coupled with averments in para 6 of the contempt petition, support the stand of the appellants that they demolished the suit structure on 20-9-1995, under the bona fide belief that after City Civil Court vacated injunction, there was no hurdle in their way to proceed with the action. It is also worth noting that, as per the letter X-I, the appellant No. 1 was supposed to proceed with the action and send compliance report on or before 20-9-1995.

17. We, therefore, proceed to examine the other material placed on record to find out whether the order of this Court, dated 7th September, 1995 was ever made known to the appellant Nos. 2 to 5. The respondents relied on two circumstances in support of their contention that the appellants had full knowledge of the order of this Court. Firstly, that the Counsel for the Corporation namely appellant No. 1 was present in the Court when the order was passed by this Court and secondly the order was communicated by their lawyer by letter dated 7th September, 1995 and which was received by the appellants on 12th September, 1995. As far as the affidavit filed by respondent No. 3 Bharat Patil, before learned Single Judge is concerned, he has denied to have received letter dated 7th September, 1995 written by the Counsel for the respondents. To our specific query the learned Counsel for the respondents, replied that the letter was delivered in the office of appellant Nos. 1 and 2. Since there was denial on the part of appellant Nos. 2 to 5 to have received this letter in the office of appellant No. 2, we directed the learned Counsel for the respondents to place a copy of letter produced before the learned Single Judge, since we did not find it on file, in support of her contention. We gave her sufficient time to produce either a copy or the original letter in support of her contention that her letter dated 7-9-1995 was in fact delivered in the office of respondent No. 2. However, she could not file the same and at last she expressed her inability to produce the said letter on record. In the circumstances, we have no alternative but to rely on the findings of the learned Single Judge on page 34 of the paper book which read thus:

"How could the respondents deny the receipt of the letter dated 7-9-1995 when the endorsement of receipt dated 12-9-1995 is made on the copy of the letter with the seal of respondent No. 1 and the initials of the concerned official."

In view of this it is clear that a copy of letter dated 7th September, 1995 was delivered in the office of respondent No. 1 alone and not in the office of respondent No. 2.

18. The second communication referred to in the whole proceedings is the letter of legal department (High Court section) dated 9th September, 1995 despatched on 11th September, 1995 and received by the Ward Officer i.e. office of appellant No. 2 on 12th September, 1995. This letter was written by the learned Counsel for appellant No. 1 appeared before this Court in whose presence the order dated 7th September, 1995 was passed. This letter is also part of the compilation of xerox documents on page 7 which we have marked as "X-V" for identification. True it is, appellant No. 3 in his affidavit filed before the learned Single Judge in the contempt petition has not made any reference whatsoever to this letter. However, it has been referred by all the appellants in their independent affidavits filed in appeal. It has been mentioned in the affidavits that although it was delivered in the Ward Office on 12th September, 1995 it continued to lie in registry section and was never put up before Ward Officer or before other appellants who participated in demolition action. In view of the stand taken in respect of aforesaid two communications, one sent by the Counsel for the respondents and another by the Counsel for the appellants, the question that falls for our consideration is whether they were genuinely not brought to the notice of the appellants and more particularly to appellant Nos. 2 to 5.

19. The first communication dated 7th September, 1995 sent by the Counsel for the respondents was delivered in the office of appellant No. 1 i.e. Head Office of the Bombay Municipal Corporation. Unfortunately, nothing is placed on record showing further movements of this letter. The appellants have filed affidavit of one Chandrakant Devram Watkare, Superintendent, working in (High Court section) of the Appellate Side of the legal department, who is employee of appellant No. 1. He has stated in the affidavit that between 18-8-1995 to 21-9-1995, the despatch book for this period discloses that one single paper was received under despatch inward Register No. 9532 from Mrs. A.S. Malwankar i.e. Counsel for the respondents, in connection with appeal from order in Suit No. 5482 of 1995. The xerox copy of the relevant page of inward register is placed on record. The same register does not show any further movement of the said paper and therefore, Mr. Watkare has stated that he could not trace the said paper received by office of appellant No. 1. Mrs. Malwankar, the learned Counsel for the respondents has not placed any material on record to show that either a copy of the said letter dated 7th September 1995 or independent communication was sent to the office of appellant No. 2. In view of this we hold that letter dated 7th September, 1995 sent by the Counsel for the respondents was delivered only in the Head Office of appellant No. 1 and it was neither forwarded to the office of appellant No. 2, at Andheri nor was brought to the notice of appellant Nos. 2 to 5.

20. The appellant No. 2 has specifically stated on affidavit that he approved the proposed action of demolition in view of the communication of the Law Officer of the City Civil Court i.e. letter marked as "X-I". In so far as the letter written by the legal department (High Court section) dated 7th September, 1995 and received by the Ward Office on 12th September, 1995 he has produced two inward registers. The first inward register is maintained by the Ward Office and second inward register maintained by Office of the Assistant Engineer (Building and Factory). On the basis of entries in both these registers, the appellants No. 2 has stated on the affidavit that the letter from the legal department (High Court section) dated 7th September, 1995, marked as "X-V", was never placed before him and on 21st September, 1995 for the first time it was forwarded by the registry to the Assistant Engineer (Building and Factory Department) which thereafter was brought to the notice of appellant No. 3 on 23rd September, 1995 i.e. three days after action of demolition. This letter does contain endorsements in support of the stand of the appellants. On the basis of this communication Mr. Sakhare contended that it cannot be said that the appellants had personal knowledge of the order of this Court passed on 7th September, 1995. We do find force in this submission, in view of the aforesaid documents and statements in the affidavit which are not disputed by the respondents either by filing additional affidavits in reply or by placing any other material on record. Unfortunately, the material which is placed before this Court in appeal was not made available to the learned Single Judge who dealt with the contempt petition for final hearing. Appellant No. 3 alone filed an affidavit and bald statement was made by Counsel for the appellants before the learned Single Judge that the same affidavit may be treated as affidavit on behalf of all the appellants and in all contempt petitions. We do not understand as to why the material which is placed before us, was not placed before the learned Single Judge. However, in the interest of justice and in view of the fact that appellant Nos. 3 to 5 are young and they have more than 20 years of service to go, we allowed, by consent, parties to place additional affidavit and other material on record for our perusal. In the circumstances, we hold that the letter X-V was not brought to the notice of the appellant Nos. 2 to 5 and they did not have knowledge of it, till demolition of structures of the respondents.

21. In our view the respondents have not discharged their burden to prove that the appellants had personal knowledge of the order dated 7th September, 1995 and has failed to prove this fact beyond all reasonable doubts. The Apex Court in case of Bunna Prasad and others v. State of U.P., while dealing with the case before it under Contempt of Courts Act held thus:

"Those who asserts that a person had knowledge of the order must prove this fact beyond all reasonable doubt. If there is any doubt, the benefit ought to be given to the person charged with Contempt of Court. If a person bona fide comes to the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty of Contempt of Court for disobeying the order."

In view of this we have no hesitation in holding that appellant Nos. 2 to 5 did not have personal knowledge of the order and therefore, they cannot be held guilty of Contempt of Court for disobeying the said order deliberately and willfully. We would also like to examine the submission of Mrs. Malwankar, learned Counsel for the respondents that when appellant Nos. 3 to 5 had come to the spot for demolition of suit structure on 20th September, 1995, the respondent had shown her letter to them which was torn and while committing this alleged act the appellants admittedly, had knowledge of the order of this Court dated 7th September, 1995. Apart from the fact that the appellants have denied, there allegations, it is worth noting that it is nobody's case that when appellants Nos. 3 to 5 reached the spot for carrying out the demolition, a certified copy of order passed by this Court on 7th September, 1995 was already obtained and shown to the said appellants. No reason has come forward, why the certified copy or authenticated copy passed by this Court was not obtained despite the fact that the respondents had sufficient time of 13 days after passing of the order till demolition. In view of this it cannot be said that any authenticate and bona fide material was placed before the appellant Nos. 3 to 5 on the spot and despite that the demolition was carried out in defiance of the order passed by this Court. Moreover the learned Single Judge has not relied on this circumstances for holding appellants guilty of contempt. This certainly creates doubt about the occurrence of the above incident as narrated by the respondent. We cannot brush aside the fact that demolition on 20th September, 1995 was of several structures including suit structures in all appeals. In the circumstances, the benefit will have to be given to the appellant Nos. 2 to 5, who are charged with the Contempt of Court.

22. This takes us to consider the case of appellant No. 1, independent from the case of appellant Nos. 2 to 5. In view of the finding recorded by the learned Single Judge that the letter of the Counsel for the respondents was received by appellant No. 1 and admission of Shri Watkare in his affidavit filed in appeal, we have no hesitation in holding that the letter was received by appellant No. 1. At this stage we quote observations made by the learned Single Judge in the impugned judgment which reads thus:

"Moreover before me number of contempt petitions have come up in which the respondent No. 1 and its officials have grossly flouted the orders of the courts below as well as this Court and acted in utter disregard thereof with impunity."

In the light of these observations made by the learned Single Judge we may further observe that the lethargy, lack of deligence, negligence, and lukewarm attitude of the concerned officers of the appellant No. 1, in dealing with the Court matters, apart from motivated disregard, also ultimately leads to contempt action. This is high time for the appellant-Corporation to consider with all seriousness to provide some machinery to receive the orders of the courts or communication of the lawyers in connection with the Court matters to reach them to the concerned official within a shortest possible time, preferably within less than 24 hours as also to take such other appropriate steps which may be necessary for prompt compliance of the courts' orders so as to avoid the proceedings such as contempt proceedings or proceedings under Order 39, Rule 2(a) of the Code of Civil Procedure. We strongly condemn inaction, negligence and lack of deligence on the part of appellant No. 1 in not communicating the order received by the appellant No. 1 on 12th September, 1995 to the concerned official.

However, in the circumstances narrated hereinabove we accept the unconditional apology tendered by the appellant No. 1. Since, albeit they were negligent and non-deligent, in the entire backdrop they cannot be said to have acted mala fide. The contempt proceedings against all the appellants are thus hereby dropped.

All these appeals are therefore, allowed setting aside the orders impugned therein.

The amount of fine deposited by the appellant may be withdrawn by the appellant. The learned Counsel appearing for all the respondents prays for stay of our judgment for a period of eight weeks. Accepting the request, we stay the operation of our judgment for a period of eight weeks.