Shri Dayabhai Shambhu Gala, Shri ... vs Lydia Co-Operative Housing ...
2003 Latest Caselaw 1038 Bom

JUDGMENT

Nishita Mhatre, J.

1. The present case is a classic example of how a party can with machination and manipulation and in concert with a Judge subvert the ends of justice. Respondent No.2, who is a Judge of the Co-operative Court and Respondent No.4, who is the Secretary of the Respondent No.1 Society, have in connivance over-reached the order passed by this Court and sought to deliberately and wilfully ignore the directions contained in the order of a Division Bench this Court.

2.The present Contempt Petition has been filed by the Partners of a firm carrying on business in the name and style of M/s.Premson. They occupy Shop No.3 in the Respondent No.1 Co-operative Society. Respondent No.1 is a Co-operative Housing Society. Respondent No.2 is the Judge of the IInd Co-operative Court, Mumbai. Respondent No.3 is the State of Maharashtra. Respondent No.4 is the Secretary of the Respondent No.1 Society. The Contempt Petition has been admitted and a Show Cause Notice has been issued to the Respondents.

3.Prior to 1978, Lydia and Joseph Rodriques were owners of the property situate at Plot No.43, Hill Road bearing CTS No.A/721. The Rodriques granted development rights of the property in favour of a builder. In 1979-80, he constructed a building known as "Lydia". On 12th January 1979, the builder sold Shop No.3 to the Petitioners on the ground floor of the building for a consideration of Rs.2,11,000/-. According to the Petitioners, the shop admeasured 390 sq.ft. The Petitioners immediately started their readymade garment business in the year 1980 from Shop No.3. The Mumbai Municipal Corporation assessed the property tax of the shop for 36.30 sq.mtrs. which is equivalent to 390 sq.ft. and the Petitioners paid maintenance to the builder on the basis of this assessment from 1980 till Respondent No.1 Society was formed in 1985-86. The Petitioners were issued shares once the Society was registered on 15th January 1986 and the Petitioners continued paying the maintenance charges on the basis that they were occupying an area admeasuring 390 sq.ft..

4.It appears that Writ Petition No.1529 of 1989 was filed by Respondent No.1 Society against the Mumbai Municipal Corporation complaining of their inaction against the Petitioners as well as Respondent No.4 for encroaching upon the open space outside their shops. In this Petition, an averment was made that the area of the shop allotted to the Petitioners was 390 sq.ft. and that they had encroached on a larger area. It appears that some orders were passed in that Writ Petition and certain undertakings were given by Respondent No.4. Respondent No.1 took out a Contempt Application against Respondent No.4. for violating the orders passed in that Writ Petition. Soon thereafter, Respondent No.4 and his family members, it appears started acquiring premises and flats of the other members of the Society and succeeded in buying over all the members save and except the Petitioners and another resident residing on the first floor. These premises, the Petitioners allege, have been converted into a shop known as M/s.Choice Centre. After gaining control of the Society, Respondent No.4, as the Secretary of the Respondent No.1 Society, withdrew the Writ Petition without the knowledge of the Petitioners who were parties to the Writ Petition. According to the Petitioners, since the year 2000-01, Respondent No.4 has made every attempt to pressurise the Petitioners to vacate Shop No.3 as the Petitioners are business rivals of M/s.Choice Centre.

5.According to the Petitioners, in Writ Petition No.1529 of 1989, the then Secretary of the Society had admitted that the Petitioners suit shop was of 390 sq.ft. in area. It appears that with the help of the machinery of the Corporation, on 27th July 2001, 31st July 2001 and 2nd August 2001, the Corporation demolished the front portion of Shop No.3 occupied by the Petitioners without issuing notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 or giving any personal hearing to the Petitioners. Aggrieved by this action on the part of the Corporation, the Petitioners filed a Suit in the City Civil Court at Bombay being Suit No.4074 of 2001. However, since the entire demolition was complete before the Petitioners could obtain any orders from the City Civil Court, the Suit was withdrawn as infructuous. The Petitioners also filed Writ Petition No.2600 of 2001 alleging unlawful acts against the Corporation and Respondent No.4 as well as M/s.Choice Centre. When the Writ Petition came up before the Division Bench of this Court on 5th November 2001, the Division Bench passed the following order :-

"

1. Heard Mr.Shah for the Petitioners. Ms.Karia appears for Respondent Nos.1 and 2 and Mr.Joshi appears for Respondent No.3 to 7.

2. The grievance in this petition is about the Municipal Notice dated 19.5.2001 issued under Section 354-A of the BMC Act. It is submitted that the earlier weather shed was permitted. There is no execution of any additional work and inspite of that, certain demolition has taken place in pursuance of that Notice.

3. We have noted from the petition that the shop was supposed to be of 390 sq.ft. on the ground floor. The Municipal Corporation will, therefore, be entitled to remove every thing outside that 390 sq.ft. encroaching upon the adjoining open space. The grievance of the petitioners is that this entire action is initiated at the instance of the adjoining shop owner i.e. respondent No.4. The Municipal Corporation will be at liberty to remove all the protrusions made by the adjoining shop owners also. In fact, they are expected to do that, along with whatever action they take against the petitioners. The action will, of course, be as per the building plan. In view of the above, the petition is dismissed."

6.It appears that, pending these proceedings, Respondent No.1 had filed a dispute being No.CC-II/152 of 2001 before Respondent No.2 herein. Ad-interim orders were passed in these proceedings on the basis of a statement made on behalf of the Petitioners that they would not carry out any construction in front of Shop No.3. This statement was made on their behalf by the Advocate on 17th August 2001 and the matter was set down for hearing on the preliminary issue on the point of jurisdiction. The Co-operative Court held that it had jurisdiction to entertain the dispute of the nature filed by Respondent No.4. This order was passed on 18th September 2001. In their reply to the interim application, the Petitioners contended that the area of the shop in their occupation was 390 sq.ft. and that they had not constructed anything in excess of this area. The Petitioners contended that the area allotted to them by the builder was 390 sq.ft. as contained in the agreement between themselves and the builder and hence they were entitled to occupy this area.

7.It is the contention of the Petitioners that by deciding that the shop admeasures 282 sq.ft., Respondent Nos.2 and 4 have over-reached the order of this Court of 5th November 2001 where this Court had noted that the area of Shop No.3 was 390 sq.ft. According to the Petitioners, the action of Respondent No.2 is blatantly violative of the orders of this Court. The Petitioners also alleged that Respondent No.4 acting as Secretary of Respondent No.1 Society has sought to resile from the statement made on behalf of Respondent No.1 Society when Writ Petition No.1524 of 1989 was filed by the Society against both the Petitioners as well as M/s.Choice Centre. There is an averment in this Petition that Shop No.3 was constructed as per the sanctioned plan, the area being 390 sq.ft. The allegations as contained in the Petition against Respondent No.2 are that on 18th May 2002 when the Contempt Notice was to be decided, no orders were passed on that day in the Contempt Notice and the matter was adjourned for judgment to 15th June 2002. It is also alleged that behind the back of the Petitioners and their Advocate, an order was obtained on an application for witness summons to Mumbai Municipal Corporation for production of the building plan of the building situate at Plot No.43, Hill Road bearing C.T.S.No.A/721. The second allegation against Respondent No.2 is that although the interim application was not argued, orders were passed on the interim application on 20th August 2002 without hearing the Petitioners on the interim application. The next allegation against Respondent No.2 is that he obtained signatures of the Advocates for the respective parties on the last page of his judgment delivered on 20th August 2002 which is not the normal practice adopted by thhe Co-operative Courts. It is then alleged that after signatures of the Advocates were obtained on the judgment of Respondent No.2, the typist was found making corrections in the judgment by using white ink. The copy supplied to the Petitioners did not indicate the corrections as it was a xerox copy. However, in the original copy of the Court, the white ink and over-writing would be visible. In these circumstances, the Petitioners approached this Court in the contempt jurisdiction. This Court being satisfied with the Petitioners case, issued Rule in the Contempt Petition and show cause notice was issued to Respondent Nos.1, 2 and 4 herein. The record and proceedings from the lower Court were also called for. After taking inspection, the Petitioners filed further affidavits to indicate that not only the judgment was tampered with after the signatures of the Advocates were obtained, but even the roznama maintained by the Court was tampered.

8.In reply to the Contempt Petition and the show cause notice, Respondent No.2 has stated that there was no attempt on his part to over-reach the order of this Court. Respondent No.2 has stated that the witness summons was issued to the Municipal Corporation on 18th May 2002 after the Petitioners Advocate consented to the same and, therefore, it mattered little whether the roznama indicated that the application was made after the matter was adjourned. In respect of the order of this Court being breached or over-reached, Respondent No.2 has stated that the order merely "noted" the contents of the Petition that the shop was supposed to be 390 sq.ft. on the ground floor and that this Court had not come to any conclusion or finding that the area of the suit shop was 390 sq.ft. He justifies this interpretation placed by him on the order of 5th November 2001 on the basis of the order of 31st October 2002 passed by this Court in Writ Petition No.2600 of 2001 which was clarificatory in nature. He has further justified the order as the sanctioned plan produced by the Corporation pursuant to the witness summons showed that the suit shop admeasures 282 sq.ft. and that the Petitioners ought to have taken recourse to an Appeal rather than initiating these contempt proceedings. He has further stated that the conduct of the Petitioners requires to be deprecated and amounts to "intimidating the judiciary and making a mockery of the judicial system". As regards payment of costs directed against the Petitioners despite the adjournment being granted by way of consent, Respondent No.2 has stated that it was because the dispute was pending for such a long time that costs were awarded. As regards the alterations made after the order dated 20th August 2002 was passed, Respondent No.2 has stated that the order was dictated in open Court on that day directly to the Stenographer on the typewriter and since the order contained typographical mistakes, those mistakes were corrected using a whitener which is a common practice. He has further stated that there is no material change in the final order dated 20th August 2002.

9.Mr.Thorat, learned Counsel for the Petitioners, has submitted that the roznama maintained by Respondent No.2 does not give a true picture of what had transpired in the Court. He submits that the tampering with the roznama is evident as the roznama for 2nd May 2002 has three entries all in different handwritings which is not usual. The roznama for 6th May 2002 shows that the matter was adjourned for 18th May 2002 at 3.00 p.m. on which date parties were present. The roznama for 18th May 2002, according to the learned Counsel, has wrongly been recorded as the Advocates appearing for the Petitioners had left by 3.00 p.m. and no consent was obtained from the Advocate and it was for this reason that Respondent No.2 had accepted the affidavit by the Petitioners on 15th June 2002 opposing the issuance of witness summons. He submits that the person who consented to issuance of witness summons was the junior of the Counsel appearing for the Petitioners who was in no way concerned with the matter as he was neither the Advocate on record nor was he briefed in the matter. He further relies on the judgments in Pratap Singh and another vs. Gurbaksh Singh, , Shri Baradakant Mishra vs. Shri Bhimsel Dixit, , Tayyabbhai Mohammedbhai Bagasarwalla and another vs. Hind Rubber Industries Pvt. Ltd., 1997 (2) Mh.L.J.1, High Court of Judicature at Bombay vs. Ms.Manisha Koirala and another, 2002 All.MR (Cri) 2465, Sessions Judge, Meerut vs. P.S.Fanthome, City Magistrate Meerut, in support of his contention that the lower judiciary must obey the orders passed by this Court and maintain the dignity of the Court and its majesty.

10.As against this, Mr.Sawant, learned Government Pleader appearing for Respondent No.2, has submitted that the scope of contempt proceedings cannot be widened and the Petitioners could not have the liberty to travel beyond the pleadings in the Contempt Petition. He submits that all allegations made against Respondent No.2 regarding the roznama not being maintained faithfully and truly are contained in the subsequent affidavits and, therefore, these need not be considered by this Court. He submits that the order of 5th November 2001 of this Court, which the Petitioners alleged has been breached, is not a finding with respect to the area of the suit shop and Respondent No.2 could decide the area in the Dispute before him. He further submits that the clarificatory order of the Division Bench of this Court fortifies Respondent No.2s interpretation that he could have decided the area and that the order of 5th November 2001 did not conclusively hold that the area of the suit premises in occupation of the Petitioners was 390 sq.ft. He then submitted that the Contempt Petition was motivated as the Petitioners did not want an inquiry into the area of their premises. He places reliance on the judgment of the Apex Court in Vishal Jeet vs. Union of India and others, . As regards the signatures of the Advocates having been obtained on the judgment, Mr.Sawant contends that this was an aberration on the part of Respondent No.2 and the judgment was not materially altered and the changes made therein were merely procedural and typographical. He submits that a Contempt Petition would lie only if the decision had been changed materially. As regards the allegation regarding tampering with the roznama, he submits that these allegations have been made subsequent to the filing of the Contempt Petition and need not be considered. He also submits that the Petitioners had already invoked the statutory remedy by filing an Appeal before the Co-operative Appellate Court against the order of Respondent No.2 and subsequently a Writ Petition from the order of the Appellate Court. Therefore, Respondent No.2 had not committed any act to interfere with the course of justice and Section 16 of the Contempt of Courts Act, 1971 was not attracted. Mr.Sawant further submits that at the highest, conduct of Respondent No.2 was improper but not contumacious. In support of this submission, he relies on the judgment of the Apex Court in Rizwan-Ul-Hasan and another vs. State of Uttar Pradesh, and S.S.Roy v. State of Orissa and others, .

11.Mr.Joshi, learned Counsel for Respondent Nos.2 to 4, submitted that all the allegations contained in the Contempt Petition against his clients were false, frivolous and trumped up charges. He further submitted that the contention of the Petitioners that they had no knowledge of the witness summons having been issued to the Corporation on 18th May 2002 was not correct as the Advocate for the petitioners had in fact not objected to the witness summons being issued. He further submitted that a plain reading of the order of the High Court of 5th November 2001 would indicate that Respondent No.2 was required to decide the matter regarding the area occupied by the Petitioners and it was for that reason that this Court had directed that the action will be taken by the Corporation in accordance with the sanctioned plan. He further submitted that merely because a statement had been made by the erstwhile Secretary of Respondent No.1 Society in Writ Petition No.1524 of 1989 that the Petitioners were entitled to occupy an area of 390 sq.ft., Respondent NNno.1 Society would not be bound by it since the sanctioned plan showed that the shop premises were only of 282 sq.ft. He further submitted that the dispute which was filed against the Petitioners was filed earlier in time than the order of the High Court of 5th November 2001 and, therefore, there was no question of Respondent Nos.1 and 4 attempting to over-reach the order of the High Court. The learned Counsel then urged that the action was bad as the Petitioners had not obtained consent of the Advocate General prior to filing the Contempt Petition as required under Rule 1032 of the Bombay High Court (Original Side) Rules, 1980.

12.Mr.Joshi also submitted that there is no wilful or deliberate act on the part of the Respondents to violate the order of the Division Bench of this Court and merely because Respondent No.2 had decided that the Petitioners were entitled to only 282 sq.ft., it would not amount to a contemptuous act on the part of any of the Respondents. He further submitted that the clarificatory order of the Division Bench of this Court dated 31st October 2002 indicated that the interpretation of the order of 5th November 2001 placed by the Respondents was correct and that the High Court by way of clarification had directed that it was the Co-operative Court who would decide the issue regarding the area which the Petitioners were entitled to occupy in the dispute pending before him. Mr.Joshi also submitted that the contention of the Petitioners that the interim application was decided without being heard and that only the Contempt Application was heard was incorrect because, according to him, the affidavit filed on 5th September 2002 before the Co-operative Court showed that what was to be heard was the main application and the Contempt Application was to be adjourned. He further submitted that no action need be taken against the Respondents for contempt and that the show cause notices issued to Respondent Nos.1 and 4 should be discharged and the Contempt Petition be dismissed.

13.I have heard the parties at length especially since the show cause notice was issued to a judicial Officer acting in the course of his duties. However, I am unconvinced by the defence raised by any of the Contemnors. The order of 5th November 2001 on a plain reading of it would indicate that the Division Bench of this Court had found that the shop of the Petitioners was supposed to be of 390 sq.ft. on the ground floor. It is for this reason that the next sentence of the order directed the Bombay Municipal Corporation to remove everything outside that 390 sq.ft. which encroached upon the adjoining open area. In addition, the Division Bench also gave the Corporation liberty to remove all protrusions made by the adjoining shop owners as this was the complaint of the Petitioners. However, the Division Bench cautioned the Corporation that this action was to be taken in accordance with building plan. Therefore, it is obvious that the Division Bench had come to the conclusion, prima facie at least, on 5th November 2001 that the Municipal Corporation was entitled to remove all extensions made by Petitioners beyond the 390 sq.ft. in their occupation. In all probability, this order was passed because of the statement made in the earlier Writ Petition No.1524 of 1989 by the Secretary of Respondent No.1 that the Petitioners were entitled to occupy 390 sq.ft. Therefore, as it stands, the order of the Division Bench was required to be followed by Respondent No.2 while passing the interim order. The clarificatory order was obtained much later, only in October 2002 that too on an application made by the Corporation. Obviously, therefore, when Respondent No.2 decided Exhibit 5 filed in the Dispute pending before him, he was expected to restrain the Petitioners from putting up any extension unauthorisedly beyond 390 sq.ft. instead of 282 sq.ft. The clarificatory order cannot be looked into in order to justify the action of Respondent No.2 while deciding the interim application as is sought to be done by Mr.Sawant for Respondent No.2.

14.At first blush, it would appear that Contemnor No.2 merely misread the order of the Division Bench of 5th November 2001 and passed the order of 20th August 2002 according to his own interpretation of the order of this Court. However, on a complete perusal of the record and proceedings of the matter pending before the Co-operative Court (which were called for in the Contempt Petition), I am convinced that this order has been passed not because of a mere misreading or misunderstanding of the High Courts order, but in order to over-reach the order of the High Court at the instance of Contemnor Nos.1 and 4.

15.The first indication of Contemnor No.2 acting in collusion with Contemnor Nos.1 and 4 is found from a perusal of the roznama of 2nd May 2002 and that of 18th May 2002. The roznama recorded on 2nd May 2002 has three different entries in three different handwritings. Normally, it would be one Bench Clerk who would record the roznama on a particular date. There is nothing stated in the affidavit of Contemnor No.2 that the Bench Clerk changed throughout the day and, therefore, the roznama was recorded by three different persons. Further, the roznama for that date shows that the entries have been cramped in order to fit into that particular page. Mr.Sawant, learned Government Pleader for Contemnor No.2, sought to explain this away by stating across the bar, that it was because of the stationery not being available that this was done. However, such an explanation is not forthcoming in the affidavit of Contemnor No.2.

16.The next indication that the action of Contemnor No.2 being motivated is that, on 18th May 2002, witness summons was issued to the Corporation to produce the sanctioned plan on the basis of an application made by Contemnor No.4. It is stated in the affidavit of the Contemnors that consent of the Advocate appearing for the Petitioners was obtained and only thereafter the witness summons was issued. If this be so, where was the need to obtain consent from the junior of the Counsel appearing for the Petitioners, when he was in no way concerned in the matter, especially when the roznama shows that at 3.00 p.m. both the Petitioner No.2 and his Advocate on record were present in Court. Further, consent obtained from an Advocate who is not appearing in the matter at all is meaningless and, therefore, the witness summons which was issued on 18th May 2002 on the basis of an application made by Contemnor Nos.1 and 4 ought not to have been issued on that day. Again, if the witness summons was in fact issued on that day, where was the need for Contemnor No.2 to take on record affidavits of the Petitioners in reply to the application for witness summons, rejoinder to that filed by Contemnor No.4, sur-rejoinder and sur-sur-rejoinder. Contemnor No.2 should have discarded all these affidavits in view of the fact that he had already issued witness summons on 18th May 2002. In fact, the affidavit of the Petitioners in reply to the application for witness summons shows that the Petitioners at all the relevant times objected to such a witness summons being issued and it was only when the Corporation appeared and produced the sanctioned plan, that the Petitioners realised that the witness summons had in fact been issued.

17.The next circumstance which indicates that the order of Contemnor No.2 was not sheer mis-reading or mis-interpretation of the order of this Court is that after dictating the judgment in open Court and the same endorsed by the respective Advocates for the parties, changes were made in the judgment with white ink and over-typing is done. Contemnor No.2 has stated that he has a right to change his orders especially when there are typographical mistakes. Undoubtedly so. But the suspicion arises because Contemnor No.2 directed the Advocates for the parties to append their signatures to the judgment. This is unheard of. In fact, Mr.Sawant, in answer to my query whether this was the practice adopted in the Co-operative Courts, candidly answered in the negative and in fact stated that this was merely an aberration on the part of Contemnor No.2 and could not be termed as a contempt. All these factors lead me to the conclusion that the Contemnors have sought to deliberately and wilfully disregard the order of the High Court of 5th November 2001. The actions of the Contemnors are calculated to undermine public respect of the higher judiciary and preservation of law and order.

18.The submission made on behalf of the Contemnors, is that the clarificatory order justifies the stand taken by the Contemnors and the order passed by Contemnor No.2. As held in the judgment in B.Mishra, (supra), a subordinate Court must follow the decisions of the higher Court and disobedience of even interim orders of superior Courts would amount to contempt. Till such time the clarificatory order was passed by the Division Bench, the Contemnor No.2 ought to have taken it as binding on him that 390 sq.ft. was the area which was allotted to the Petitioners. As held by the Apex Court in B.Mishra (supra) when an order is passed by a higher Court, it has to be obeyed by the lower Court even if the order has been passed without jurisdiction. Until the higher Court takes the view that it has no jurisdiction, all orders passed by it are expected to be obeyed and complied with by the inferior Courts. A similar view has been taken in Sessions Judge, Meerut, (supra), where it has been held thus :

"6. It is not for the superior courts to say under what law they have issued the directive. The subordinate courts should presume for the time being, unless the contrary appears, that the order is lawful. If it appears to them that the order is without jurisdiction, they may not comply with it but this will be at their own peril. If it turns out that the order was passed within jurisdiction they will be disobeying it at the cost of being punished for contempt of court. Even when they refuse compliance with an order passed without jurisdiction, they must do so in courteous language. Any discourtesy shown by them to a superior court is again bound to involve them in proceedings for contempt. No subordinate court is entitled to demand of the superior court the law under which the order has been passed before complying with it. They must find the law for themselves if they intend to question the order; otherwise they should strictly comply with it before both in letter and in spirit. It must be understood by all concerned that any discourtesy or disobedience shown to the orders of superior courts will be visited by this Court with the severest penalties"

19. In Baradakanta Mishra (supra), while deciding what is Contempt of Court, the Apex Court (vide paragraphs 11 and 12) has observed thus :

"11.Contempt of Court is disobedience to the court, by acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of the courts order; it also signifies such conduct as tends to bring the authority of the court and the administration of law into disrepute. (vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939) Edn. page 14, Oswalds Contempt of Court (1910) Edn. pages 5 and 6).

12. It is a commonplace that where the superior courts order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court, for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeopardise the preservation of law and order. The appellants case is to be examined in the light of the foregoing principles and analogy."

20.While considering the Tribunals refusal to follow the decision of the High Court because a Special Leave Petition to the Supreme Court was pending against the decision of a High Court, the Apex Court (vide paragraphs 15-16 and 17) held thus :

"15-16.The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior courts disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.

17.Our view that a deliberate and mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bona fide act of distinguishing the binding precedent, even though it may turn out to be mistaken."

21.The contention of Contemnor No.2 and the averments made in his affidavit that a Contempt Petition has been filed only to intimidate him and demoralise him as a Judge in discharging his judicial duties without fear is utterly baseless. The averment that such an action has been taken against him by the Petitioners only to defile his reputation is also without any merit.

22.Contemnor Nos.2s contention raised in the affidavit that it is apparent from the order of this Court that the High Court merely noted from the contents of the Petition that the shop was supposed to be 390 sq.ft. and that the High Court has not come to any conclusion on a finding on the area of the suit shop is belied by a mere reading of the said order. There is in fact no scope for misunderstanding or misinterpreting the scope of the order of this Court of 5th November 2001. In fact, Contemnor No.2 does not claim to have misinterpreted or misunderstood the order. Instead, he insists that the clarificatory order of the Division Bench supports his interpretation of the order. The attitude of Contemnor No.2 shows that he certainly had more than a judicial interest in the dispute pending before him. Assuming that Contemnor No.2 is right, that the clarificatory order is to be considered, the Division Bench in fact has stated that since the proceedings were filed before the Co-operative Court, the proceedings would decide what is the authorised area of the Petitioners shop. However, as held by the Apex Court in the judgments aforestated, Contemnor No.2 was bound to follow the order of 5th November 2001 passed by this Court in his order of 20th August 2002 and Contemnor No.2 had no business to place any other interpretation on the order. The action which was to be taken in accordance with the building plan was in respect of the action which the Division Bench gave liberty to the Corporation to take against Contemnor No.4. Obviously, therefore, while deciding the interim application, Contemnor No.2 ought to have complied with the order of the Division Bench where it was found that any encroachment beyond the area of 390 sq.ft. made by the Petitioners would be removed. In complete defiance of this order, Contemnor No.2 has directed the Petitioners to remove all encroachment beyond 282 sq.ft.

23.In Pratap Singh (supra), the Apex Court considered whether issuance of a Government Circular stating that it is improper for a Government servant to take recourse to the Court of law before exhausting normal official channels of redress was a contemptuous act on the part of the officers who were acting on that Circular. The Apex Court while considering what is Contempt of Court, quoted from Oswalds Contempt of Court, 3rd Edition, page 6 as under:-

"To speak generally, contempt of the Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation."

The Apex Court found that the disciplinary action initiated against the employee having initiated proceedings in a Suit in the Court of Senior Subordinate Judge, Amritsar was only in order to pressurise the employee to withdraw his suit or face the consequences of disciplinary action. This, according to the Apex Court, amounted to Contempt of Court and the Apex Court observed thus :

".... There are many ways of obstructing the Court and "any conduct by which the course of justice is perverted, either by a party or a stranger, is a contempt; thus the use of threats, by letter or otherwise, to a party while his suit is pending; or abusing a party in letters to persons likely to be witness in the cause, have been held to be contempts." (Oswalds Contempt of Court, 3rd Edn., p 87). The question is not whether the action in fact interfered, but whether it had a tendency to interfere with the due course of justice. The action taken in this case against the respondent by way of a proceeding against him can, in our opinion, have only one tendency, namely, the tendency to coerce the respondent and force him to withdraw his suit or otherwise not press it. If that be the clear and unmistakable tendency of the proceedings taken against the respondent, then there can be no doubt that in law the appellants have been guilty of contempt of Court, even though they were merely carrying out the instructions contained in the circular letter."

24.There is no doubt that the law as enunciated by the Apex Court in the case of Rizwan-Ul-Hasan (supra) cited by Mr.Sawant is clear that the jurisdiction in contempt is not to be invoked unless there is a real prejudice which can be regarded as a substantial interference with the due course of justice. The Apex Court has also observed that the Court will not exercise its jurisdiction upon a mere question of propriety. However, the Apex Court has categorised three different categories of contempt known to law being as under :

"...One kind of contempt is scandalizing the Court itself. There may likewise be a contempt of the Court in abusing parties who are concerned in causes in that Court. There may also be a contempt of Court in prejudicing mankind against persons before the cause is heard. The act of the appellant could not fall in either of these three categories. "

25.In the present case, there is no manner of doubt that Contemnor No.2 had acted in a manner to interfere with the due course of justice by coming to the conclusion that all articles belonging to the Petitioners which encroached in an area beyond 282 sq.ft. should be removed. Mr.Sawants attempt to suggest by relying on S.S.Roy (supra) that Contemnor No.2 was not actuated by any corrupt or dishonest motive cannot be accepted for the reasons aforestated. The reliance placed on the judgments in the case of Bombay Environment and Vishal Jeet (supra) is misplaced.

26.Mr.Sawant also relied on the judgment of Charity Commissioner (supra). In this case, the Apex Court found that the Charity Commissioner was discharging his quasi-judicial functions in exercise of his statutory power vested in him in the light of his own independent perspective. The Apex Court took the view that the Deputy Charity Commissioner acting under the Bombay Public Trusts Act can take a view different from a tentative view of a Single Judge of a High Court taken in an interlocutory proceedings while an Appeal was pending before the Division Bench. However, the present case is not an order passed in any interlocutory proceedings, but the Writ Petition itself was disposed of by the order of 5th November 2001 and, therefore, reliance placed on this case is of no avail to Contemnor No.2. By observing that by the order of 20th August 2002, the Petitioners are only entitled to 282 sq.ft. in the face of the order of this Court of 5th November 2001, Contemnor No.2 has committed Contempt of Court under Section 16 of the Contempt of Courts Act, 1971. There is no doubt that the action of the Contemnors have substantially interfered with or in any event had the tendency to interfere with the due course of justice.

27.A perusal of the original judgment dated 20th August 2002 passed by Contemnor No.2, surprisingly reveals that although Contemnor No.2 was concerned about taking the signatures of the respective Advocates representing the parties, he has not cared to initial the changes made in the body of the judgment indicating that they were made on his instructions. It is significant that in this order of Contemnor No.2, the Advocate for the Petitioners has been shown as one Shri Haridas who has not endorsed the copy of the witness summons showing that he had no objection to the witness summons being issued to the Corporation. Nor is the consent of the Counsel for the Petitioners obtained. Therefore, the submissions made on behalf of the Contemnors that the Petitioners had consented to the witness summons being issued to the Corporation is baseless.

28.Contemnor No.4 has been the initiator and instigator in the entire process which has resulted in the order of 5th November 2001 being flouted. The Contempt Application filed by Contemnor No.4 in the Co-operative Court in April 2002 was preferred with the ultimate design to over-reach the orders of this Court. The application made for witness summons and the order passed thereon have apparently been made with that end in view. All these factors besides others led to the order of 20th August 2002. Therefore, the role played by Contemnor No.4 in the entire matter is equally blameworthy.

29.There is, therefore, no doubt that there has been a disobedience of the order of 5th November 2001. It cannot be said that it was a mere misinterpretation of the order. The action and conduct of Contemnor Nos.1,2 and 4 shows that it was a deliberate and wilful act to over-reach the order of this Court. When a Judicial Officer acts evidently at the behest of one of the parties before him and shows utter disdain for the order of this Court, his conduct is certainly alarming and condemnable and stern action will have to be taken against him. The apology tendered by Contemnor Nos.1 and 4 does not appear to be bonafide and cannot absolve them of their deliberate act of defiance. Contemnor No.2 has not even cared to tender an apology nor shown any contrition and instead has sought to justify his stand.

30. As a result, the Contempt Petition and the Show Cause Notice are made absolute. Contemnor Nos.1, 2 and 4 are guilty of having committed contempt. Imposing a fine of Rs.2,000/- (Rupees Two Thousand only) on each of them would meet the ends of justice. In default, Contemnor Nos.2 and 4 shall undergo simple imprisonment in Civil Prison for one week.

31.Learned Counsel for Respondent Nos.1 and 4 and the learned Government Pleader for Respondent No.2 seek for stay of this judgment. Stay granted for four weeks. Certified copy expedited.

Parties to act on an authenticated copy of this judgment.