Bombay High Court
Patil vs Shri Jagatrao Dinkarrao Deshmukh on 30 November, 2011
Bench: K.U. Chandiwal
1 CP 122 & 169/2010
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CONTEMPT PETITION NO.122 OF 2010
in
WRIT PETITION NO.3137/2000
Mahatma Gandhi Taluka Shikshan
Mandal, Tq. Chopda, Dist.
Jalgaon, Through its
President - Shri Sandeep Suresh
Patil, Age; 46 Yrs., occu.lawyer,
R/o Chopda, Dist.Jalgaon.
ig = PETITIONER
versus
Smt. Mankarnabai D. Deshpande
(since deceased) through her
legal heirs :
1) Shri Jagatrao Dinkarrao Deshmukh
Age: 58 Yrs., occu. Agril.
R/o Patilgadhi, Chopda,
Dist. Jalgaon.
2) Smt. Nirmalabai Vasantrao Deshmukh
Age: 50 Yrs., occu. Household,
R/o C/o Vasantrao Kashinath Deshmukh
A/p Shindi, Tq.Chalisgaon,
District Jalgaon.
3) Smt. Kusum Mahale
Age: 42 Yrs., occu. Household,
R/o Anandrao Mahale,
Librarian, ASC College, Kannad,
District Aurangabad.
4) Shri Umakant Kashinath Deshmukh
Age: 51 Yrs., occu. Service,
R/o Mauli, 12, Suyog Colony,
Jalgaon, Dist. Jalgaon.
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2 CP 122 & 169/2010
5) Shri M.M.Gujar,
Then Chief Officer of Chopada
Municipal Council,
At present - Chief Officer,
Kopargaon Municipal Council,
Kopargaon, Dist. Ahmednagar.
6) Shri S.D. Landge,
Then Director, Town Planning,
Maharashtra State,
Age:Major, occu. Service,
At present, Director of Town Planning,
Central Building Pune.
7) Shri P.G.Bhukte,
Then Asstt.Director,
Town Planning, Maharashtra State,
Age:Major, occu.Service,
At present, Director of Town
Planning, Central Building,
Pune.
8) The State of Maharashtra,
Through AGP (Revenue Deptt.,
Mantralaya, Mumbai.)
9) Pratapsing s/o Abhimanyu Patil,
Age: 47 Yrs., occu.Service,
R/o Desmukhnagar, Chopda,
Dist. Jalgaon. = RESPONDENTS.
.......
Advocate for Petitioners : Mr.B R Warma
AGP for Respondent/State: Mr.KJ Ghute-Patil.
Advocate for Respondents 1 to 4 : Mr.SB Yawalkar.
Advocate for Resp.No.5 : Mr. YB Bolkar, Adv.h/for
Mr. DS Bagul.
Advocate for Respondent 9 : Mr.PB Patil
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3 CP 122 & 169/2010
with
CONTEMPT PETITION NO.169/2010
in
WRIT PETITION 3137/2000
Mahatma Gandhi Taluka Shikshan
Mandal, Tq. Chopda, Dist.
Jalgaon, Through its
President - Shri Sandeep Suresh
Patil, Age; 46 Yrs., occu.lawyer,
R/o Chopda, Dist.Jalgaon. = PETITIONER
versus
Smt. Mankarnabai D. Deshpande
(since deceased) through her
legal heirs :
1) Shri Jagatrao Dinkarrao Deshmukh
Age: 58 Yrs., occu. Agril.
R/o Patilgadhi, Chopda,
Dist. Jalgaon.
2) Smt. Nirmalabai Vasantrao Deshmukh
Age: 50 Yrs., occu. Household,
R/o C/o Vasantrao Kashinath Deshmukh
A/p Shindi, Tq.Chalisgaon,
District Jalgaon.
3) Smt. Kusum Mahale
Age: 42 Yrs., occu. Household,
R/o Anandrao Mahale,
Librarian, ASC College, Kannad,
District Aurangabad.
4) Shri Umakant Kashinath Deshmukh
Age: 51 Yrs., occu. Service,
R/o Mauli, 12, Suyog Colony,
Jalgaon, Dist. Jalgaon.
5) Shri M.M.Gujar,
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4 CP 122 & 169/2010
Then Chief Officer of Chopada
Municipal Council,
At present - Chief Officer,
Kopargaon Municipal Council,
Kopargaon, Dist. Ahmednagar.
6) Shri S.D. Landge,
Then Director, Town Planning,
Maharashtra State,
Age:Major, occu. Service,
At present, Director of Town Planning,
Central Building Pune.
7) Shri P.G.Bhukte,
Then Asstt.Director,
Town Planning, Maharashtra State,
Age:Major, occu.Service,
At present, Director of Town
Planning, Central Building,
Pune.
8) The State of Maharashtra,
Through AGP (Revenue Deptt.,
Mantralaya, Mumbai.)
9) Anita w/o Sanjay Patil,
Age: 32 Yrs., occu.Household,,
R/o Desmukhnagar, Chopda,
Dist. Jalgaon. = RESPONDENTS.
Advocate for Petitioners : Mr.B R Warma
AGP for Respondent/State: Mr.KJ Ghute-Patil.
Advocate for Respondents 1 to 4 : Mr.SB Yawalkar.
Advocate for Respondent 1 : Mr.BS Shinde, Adv.
h/for Mr. VP Latange
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5 CP 122 & 169/2010
CORAM : K.U.CHANDIWAL, J.
DATE OF RESERVING JUDGMENT : 21st NOVEMBER, 2011.
DATE OF PRONOUNCING JUDGMENT: 30th NOVEMBER, 2011.
JUDGMENT:
1) Heard finally. The petitioner has filed
the present contempt proceedings under Article
215 of the Constitution of India and under the
provisions of Contempt of Courts Act, seeking to
punish the Respondent Nos.1 to 7 and 9 for
willful violation of order of injunction dated 6th
August, 2004 passed by this Court in Writ
Petition No.3137/2000.
2) In the writ petition, the petitioner has
questioned propriety of the letter dated
29.5.2000 of the Director of Town Planning, MS,
Pune and the Division Bench of this Court, on
6.8.2004 considered it for admission and Rule was
granted along with interim relief in terms of
prayer clause (D). Prayer clause (D) reads as
under:
"(D) Pending and final hearing and
disposal of this writ petition in
this Hon'ble High Court, Respondent
Nos. 1 and 2, or their servants,
agents, anybody claiming through or
under them be restrained by an order
of injunction, not to give effect or
take any action pursuant to the
letter dated 29.5.2000 being number -
Chopada/Section-47/Gat No.1155(1 and
6 CP 122 & 169/2010
2) T.P.V.-4/3344."
3) Learned Counsel for petitioner submits,
in spite of such restraint to the letter dated
29.5.2000, construction permission was granted on
5.6.2006. However, no occupancy certificate is
issued in favour of the respondents, the
construction permission would be treated as alive
and the breach of the order dated 6.8.2004 is
continuous.
4)
Respondent Nos. 1 to 4 are owners of the
property. Mr.Patil, learned Counsel for
Respondent No.9 submits that his client was not
party to the writ petition. His client has
purchased the property on 29.12.2003 while
interim relief was subsequently granted. It was
prohibition against Respondent Nos.1 & 2.
Respondent No.9 was not aware till he was served
with the notice. He carried construction
activities based on permission granted by the
Municipal Council. The petitioner was in slumber
for six years and then prosecuted. He
reiterates, there is no reasonableness on the
part of the petitioner.
5) Respondent No.5, in both the contempt
petitions, submits that he had no role in issuing
the letter dated 29.5.2000 or subsequent action,
as he joined the duties on 12.6.1997, he was
7 CP 122 & 169/2010
relieved on 20th October, 1999.
6) The respondents raised a basic question
about maintainability of the contempt petition
since there is bar of Section 20 of the Contempt
of Courts Act, 1971.
7) Mr.Warma submits, the contempt petition
is maintainable under Article 215 of the
Constitution of India as the bar contemplated
under Section 20 of the Act, would not be
available. To stress his point, he has placed
reliance to the following reported judgments :-
a) Mh.L.J. 1993 (2) 1331 - Usman Gani Vs.
State of Maharashtra and Anr.;
b) A.I.R. 1992 SC 904 - Pritam Pal Vs. High
Court of Madhya Pradesh, Jabalpur through
Registrar.
c) AIR 1970 SC 1767 - The Aligarh Municipal
Board and Ors. Vs. Ekka Tonga Mazdoor Union
and Ors.
d) AIR 1997 SC 1186 - High Court of
Judicature at Allahabad through its Registrar
Vs. Raj Kishore and Ors.;
e) AIR 1989 SC 2285(1) - Firm Ganpat Ram
Rajkumar Vs. Kalu Ram and Ors.
(f) AIR 2001 SC 2763(1) - Pallav Sheth Vs.
Custodian and Ors.
8) In the matter of Usman Gani, the learned
8 CP 122 & 169/2010
Single judge (as then he was) has considered the
Contempt of Courts (Bombay High Court) Rules,
1975, Rule 19(a) and Article 215 of Constitution
of India. In the said case, the controversy
revolved to several proceedings injuncting the
Corporation, making a statement by officials not
to demolish the structure, still they demolished
the structure, in spite of High court's orders.
A notice of motion was moved in Original Side
proceedings on the illegal acts of Municipal
Corporation. It was a continuous process of
breaches. It was observed in paragraph 13, as
under:
"13. Apart from this, as the power is
being exercised under Article 215,
there is no question of any limit
being laid down within which the High
Court may commit a person for
contempt of itself. There is no
question of section 20 of the
Contempt of Courts Act in any manner
prescribing either a pre-condition or
a time limit within which the High
Court may exercise its powers under
Article 215 of the Constitution of
India. Therefore, even presuming that
the filing of the Notice of Motion
did not amount to initiation of the
proceedings and it is only when the
Court really hears the Notice of
Motion, that there is initiation of
proceedings, still so long as the
alleged Contemnor is made aware of
the charge and is given full
opportunity to meet the charge, this
Court can commit for contempt at any
time. Section 20 can in no trammel
9 CP 122 & 169/2010
or curtail the inherent power of this
Court."
9) In Pritam Pal's case, the Hon'ble
Supreme Court (decided on 19-2-1992)observed,
that power of Supreme Court and High Court to
punish contempt is not restricted or trammeled by
ordinary legislation. However, the power to be
used sparingly and procedure should be fair. The
Supreme Court further observed, summary
procedure is to be followed. In that case, a
Advocate made libelous allegations against
sitting judges of the High Court, which the
Supreme Court felt, amounts to interference with
administration of justice and in that context,
discussion in respect of Section 20 of criminal
contempt arose. This judgment, would not be
applicable, as the contemnor in that case sought
action even against the sitting judges of the
High Court and consequently, the Supreme Court
observed in paragraphs 41 and 42 as under :
"41. The position of law that
emerges from the above decisions is
that the power conferred upon the
Supreme Court and the High Court,
being Courts of Record under Articles
129 and 215 of the Constitution
respectively is an inherent power and
that the jurisdiction vested is a
special one not derived from any
other statute but derived only from
Articles 129 and 215 of the
Constitution of India (See D.N.Taneja
v. Bhajan Lal, [1988] 3 SCC 26) and
10 CP 122 & 169/2010
therefore the constitutionally vested
right cannot be either abridged by
any legislation or abrogated or cut
down. Nor can they be controlled or
limited by any statute or by any
provision of the Code of Criminal
Procedure or any Rules. The caution
that has to be observed in exercising
this inherent power by summary
procedure is that the power should be
used sparingly, that the procedure to
be followed should be fair and that
the contemner should be made aware of
the charge against him and given a
reasonable opportunity to defend
himself."
42. If we examine the facts of the
present case in the backdrop of the
proposition of law, the contentions
raised by the appellant challenging
the procedure followed by the High
Court do not merit any consideration
since the appellant has been served
with a notice of contempt and
thereafter permitted to go through
the records and finally has been
afforded a fair opportunity of
putting forth his explanation for the
charge levelled against him.
Incidentally, we may say that the
submission of the contemner that the
impugned order is vitiated on the
ground of procedural irregularities
and that Article 215 of the
Constitution of India is to be read
in conjunction with the provisions of
Sections 15 and 17 of the Act of
1971, cannot be countenanced and it
has to be summarily rejected as being
devoid of any merit."
Thus, this judgment deals with a different
11 CP 122 & 169/2010
situation, where, an advocate was making
scurrilous, offensive and malicious allegations
which were beyond condonable limits. This would
be of no avail to the petitioner. This judgment
is being of 2 Hon'ble Judges of the Supreme
Court, the later judgment dated 10.8.2001 in
Pallav Sheth's case (AIR 2001 SC 2763) will hold
the field.
10) In Pallav Sheth's case - AIR 2001 SC
2763, it was observed : provisions of Section 20
of the Contempt of Courts Act, cannot be taken to
abrogate constitutional powers in filing of
applicability by a party or issuance of suo motu
notice by Court. Section 20 of Contempt of Courts
Act, 1971 has to be harmonized with
constitutional provisions. The three-judges
Bench overruled the judgment in the matter of
Omprakash Jaiswal Vs D.K.Mittal - 2000 AIR SCW
722, and observations in AIR 1974 SC 2255 were
held obiter.
11) The Hon'ble Supreme Court also held in
the said case, there would be application of
Section 17 of the Limitation Act, as the
contemnor, who was restrained by the court from
alienating, transferring of his assets, found to
have set up benami companies and transferred his
12 CP 122 & 169/2010
assets despite restraint order. Fraud
perpetrated by contemnor revealed in Income-tax
raid conducted 3 years after restraint order.
Application for initiating contempt proceedings
filed immediately on becoming aware of fraud. The
Supreme Court held Section 17 of the Limitation
Act would be applied and the provisions embodied
fundamental principles of justice and equity.
12) The observations in the matter of Pallav
Sheth, reading from any angle deals with the
legal position vis-a-vis the Contempt of Courts
Act 1971 and powers of High Court under Article
215 of Constitution. The Honourable Supreme
Court has observed, Section 20 deals not only
with criminal contempt, but also with civil
contempt. It applies not only to the contempt
committed in the face of the High Court or the
Supreme Court but would also be applicable in the
case of contempt of the subordinate court. The
procedure which is to be followed in each of
these cases is different. Section 20, as framed,
is not happily worded. The heading of the
section, however, indicates what it was to
provide for "Limitation for actions for
contempt". The wording of the section are
negative but it is clear that terminus ad quem is
the initiation of proceedings for contempt. The
crucial question that arise as to how or when are
13 CP 122 & 169/2010
the proceedings for contempt initiated. The
Honourable Supreme Court, in paragraph 38 of the
said judgment observed that, "The Rules so framed
by all the Courts in India do show that
proceedings are initiated interalia with the
filing of an application or a petition in that
behalf. If, however, proceedings are not
initiated by filing of an application within a
period of one year from the date on which the
contempt is alleged to have been committed then
the Court shall not have jurisdiction to punish
for contempt. If, on the other hand, proceedings
are properly initiated by the filing of an
application, in the case of civil contempt like
the present before the Court within the period of
limitation then the provisions of Section 20 will
not stand in the way of the Court exercising its
jurisdiction."
13) The observations of the Honourable
Supreme Court expressly illustrate scope, ambit
and applicability of Section 20 vis-a-vis civil
Contempt and essentiality of filing an
application. The situation, as desired by the
petitioner herein need not be dissected to mean
that his petition being under Article 215 of the
Constitution, the effect of provisions of
Contempt of Courts Act, 1971 are defused or
deflated or non est. The theme in the language
14 CP 122 & 169/2010
of the Apex Court in the matter of Pallav Sheth
illustrates both the provisions i.e. Article 215
and Contempt of Courts Act, 1971, is to be read
harmoniously. This is more so, from Section 20 of
the said Act. In the situation, I hold that even
for a petition purported to be under Article 215
of Constitution of India, since the body of the
petition itself inform contempt of particular
orders of the Court, and it is filed under
Contempt of Courts Act, it would attract
provisions of Section 20 of the Contempt of
Courts Act, 1971. The High court has not
initiated suo-motu action under Article 215 of
the Constitution of India.
14) The action complained of injuncted in WP
No.3137/2000 was dated 6.8.2004 while the
contempt, allegedly committed by the respondents
is after more than six years of the said orders.
The petitioner did not venture to explain as to
what he was doing for all these years when the
alleged contemnor were developing the property,
property changed hands by sale-deed executed by
Respondent Nos.1 to 4 in favour of other
respondents. One of the principles underlying the
law of limitation is that a party has to act
deligently and not sleep over its rights. It is
quite clear, the acts of Respondents were not
hidden to create an anomaly and hardship for
15 CP 122 & 169/2010
petitioner not to be aware of developments.
15) Each of the respondents has tendered
unconditional apology to this Court. It is
informed, there is no willful act or disobedience
of contempt or breach of the order of this Court.
16) Considering overall effect, the impact
of Section 20 of Contempt of Courts Act will not
be diluted even if petition is styled under
Article 215 of Constitution of India, I do not
see any breach of the orders to cause issuance of
notice and action under Contempt of Courts Act.
Notice discharged. Respective Contempt Petitions
dismissed.
sd/-
(K.U.CHANDIWAL)
JUDGE
bdv/
fldr.21.11.11
