Limboni Niketan vs Chief Executive Officer And 3 Ors
2021 Latest Caselaw 10818 Bom

                                                               15.4655.21-conpwl.odt


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         Digitally
         signed by              ORDINARY ORIGINAL CIVIL JURISDICTION
         BASAVRAJ
BASAVRAJ GURAPPA
GURAPPA PATIL
PATIL    Date:
         2021.08.18
                                   CONTEMPT PETITION (L) NO.4655/2021
         18:15:24
         +0530
                                                   IN
                                        WRIT PETITION NO.57/2009


                      Limboni Niketan                           ..... Petitioner

                             Vs.

                      The Chief Executive Officer
                      SRA & Ors.                                ..... Respondents


                      Mr. Pradeep J. Thorat a/w. Ms. Aditi Naikare for the
                      Petitioner
                      Mr. Vijay D. Patil for Respondent Nos.1 to 4


                                     CORAM:     K.K.TATED &
                                                PRITHVIRAJ K. CHAVAN, JJ.

                                     DATED :    AUGUST 11, 2021

                      P.C.

                      1      Heard.       By this Contempt Petition, the Petitioner

submits that the Respondent / contemnor be held guilty of civil contempt and be dealt with and/or punished in exercise of the provisions of Article 215 of the Constitution of India and the provisions of section 12 of the Contempt of Courts Act 1971 with such fine and imprisonment or in such other manner in accordance with law as this Hon'ble Court may deem fit for the wilful and deliberate breach of the judgment and order dated 16th February 2010 passed by this Court in Writ Petition 57/2009.

                      Basavraj G. Patil                                                1/12
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2      The learned counsel for the Petitioner submits that

the Petitioner was conducting primary school in the vicinity of Sanjay Gandhi National Park, Borivali. He submits that the said school was demolished by the Authority, as it was on forest land. The Petitioner had filed Writ Petition No.742/2006 before this court for alternate accommodation to start the school. He submits that this court, by order order dated 07.04.2006 had directed the Petitioner to apply to the Conservator of Forest with necessary documents and evidence in support of their case that they are entitled to rehabilitation. Para 3 of the said order reads thus:

"3. We do not propose to go into the merits of the matter. The Petitioner to apply to the Conservator of Forests with necessary documents and evidence in support of its case that it is entitled to rehabilitation. If the Conservator of Forests comes to the conclusion that the petitioner is so entitled, the Conservator of Forests should forward the case of the Petitioner to Respondent No.3 who will thereafter take steps, in accordance with law."

3 The learned counsel for the Petitioner submits that pursuant to the order dated 07.04.2006 passed by this court in Writ Petition No.742/2006, the Petitioner made an application to the Conservator of Forest, Borivli, Mumbai for entitlement of school premises in redeveloped project. He submits that the Conservator of Forest, by his order / letter dated 12.05.2006 held that the Petitioner is entitled for permanent alternate accommodation.

4 As the Respondents have failed and neglected to take appropriate steps for allotment of school premises, the

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Petitioner had filed Writ Petition No.57/2009 before this court on 22.12.2008 with following prayers:

"(a) That this Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or directions in the nature of mandamus thereby mandatorily ordering and directing the C.E.O., Slum Rehabilitation Authority to forthwith allot a suitable plot of land at Village Chandivali, Mumbai Suburban District to the Petitioner Society to re-establish their school with at least 8 class rooms and office room in order to cater the needs of the students of the said locality: on such terms and conditions as this Hon'ble Court may deem fit and proper.

(b) That this Hon'ble Court be pleased to mandatorily direct all the Respondents including the C.E.O. Slum Rehabilitation Authority to identify and demarcate a suitable plot of land at Village of Chandivali, Mumbai Suburban District for establishment primary and secondary school in accordance of the schools by the Bombay Municipal Corporation for the purpose of allotment of the same to the Petitioner society, on such terms and conditions as this Hon'ble Court may deem fit and proper.

(c) This Hon'ble Court be pleased to call for the records and material before this Hon'ble Court in order to satisfy this Hon'ble Court about availability of a suitable plot of land in the Chandivali Village, Bombay Suburban District, where scheme of resettlement of affected persons from Sanjay Gandhi National Park are being rehabilitated.

(d) In the facts and circumstances and in the interests of equity and fair play, pending hearing and final disposal of the present Petition, the Respondent Nos.3 and 4 Authorities be ordered and injuncted and restrained by an Order and direction from this Hon'ble Court from allotting any plot of land to any third party or other interested party to establish a school in the said locality without first allotting appropriate area to the Petitioner society to establish their Primary

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School in the said Chandivli locality.

(e) Interim and ad-interim relief in terms of prayer

(d) above be granted.

(f) Respondents be ordered to pay the cost of the present Petition to the Petitioner.

(g) Such other Orders be passed and reliefs be granted in favour of the Petitioner as this Hon'ble Court may deem just, legal and proper."

5 The learned counsel for the Petitioner submits that this court, by order dated 16.02.2010 had decided Writ Petition No.57/2009 in which the Slum Rehabilitation Authority (SRA) had made a statement before this court that the plans were approved for two buildings and commencement certificate has been issued. Paragraph 4 and 5 of the said order reads thus:

"4. On behalf of the Respondents S.R.A., a rely has been filed by Y.R. Sarode, Sub Engineer of Respondent No.3. Our attention is invited to paragraphs 6 and 7 of the said affidavit. Considering the averments in para.7 which sets out that the petitioner will be accommodated in Building No.1 for which plans have been approved and the commencement certificate is issued they propose to rehabilitate the petitioner in the said building or another vacant area which will be made available for construction of the school building for the petitioner. It is also pointed out that the S.R.A., duly approved plan for two buildings and commencement certificate has been issued. Building S-2 consisting of 62 rooms is to be handed over to M.C.G.M. Another school on Building No.1 is the building in which the statement is made that the petitioners will be rehabilitated.

5. On a specific query to Counsel for S.R.A., learned Counsel on instructions from the officers who are present and considering the statement made on

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affidavit states that the petitioners will be accommodated in the building No.1 as soon as the building is completed. Statement made on behalf of the S.R.A., is accepted. The S.R.A., is directed as soon as the building is completed to hand over to the petitioner an area as per their entitlement."

6 The learned counsel for the Petitioner submits that as the Respondent has failed and neglected to comply with the order dated 16.02.2010 passed by this court in Writ Petition No.57/2009, they, through their Advocate's letter dated 29.01.2021 had called upon Respondent No.6 - Chief Executive Officer and Chief Engineer of the SRA to comply with the order dated 16.02.2010 passed by this court in Writ Petition No.57/2009 and instruct the concerned officer to take steps to hand over the possession of the building No.1 on plot CTS No.11/A(pt), 11A/191 to 402, 11D (pt), 16, 16/1 to 92, 19, 19/1 to 28, 20(pt), 25/1 to 32 and 50(pt) of village Chandivali, L Ward, Mumbai.

7 The learned counsel for the Petitioner submits that, in spite of legal notice dated 29.01.2021, the Respondents have failed and neglected to comply with the orders passed by this court, therefore, the Petitioner has filed the present Contempt Petition for taking action against the Respondents under the Contempt of Courts Act.

8 The learned counsel for the Petitioner submits that bare reading of the orders dated 07.04.2006 passed in Writ Petition No.742/2006, 16.02.2010 in Writ Petition No.57/2009 and notice / letter dated 29.01.2021 clearly show that the Respondents, intentionally failed and

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neglected to comply with the orders passed by this court by not handing over possession of the school building. He submits that for last more than 15 years, the Petitioner is waiting for the allotment of the structure so that they can start the school in the interest of public at large, in the said locality. Hence, in the interest of justice, this Hon'ble Court be pleased to take appropriate action against the Respondent for non compliance of the orders passed by this court. He submits that if action is not taken against the Respondent officers, it will be difficult for the Petitioner to get possession of the school building though time and again, this court held that the Petitioners are entitled to the same.

9 The learned counsel for the Petitioner submits that the Apex Court, in the matter of Sudhakar Mahadeorao Kawale Vs. State of Maharashtra 1994 CrLJ 735 held that all the orders passed by the Court are binding on the Contemnor, unless and until they are set aside by the Court of competent jurisdiction. Paragraph Nos.4 and 5 of the said judgment read thus:

"4. It is necessary to bear in mind that even though our original order in Writ Petition No. 917 of 1992 passed on 27-4-1992 or our order in Review Application decided on 14-10-1992 may be illegal, still the said orders are binding upon the contemner unless and until they are set aside by the Court of competent jurisdiction. It is not open to the contemner to justify his action of not complying with our orders on the basis of any new contention on merits. It is well settled that unless it is shown that the order of the Court about which non compliance is complained is without jurisdiction or void ab initio, the parties to the order are bound to comply with it even though it may

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be illegal. As already stated in Contempt jurisdiction, the orders are not examined on merits to determine whether they are legal or not. It is not therefore, open to the contemner to justify his action on the basis of the aforesaid new contention raised in this contempt Petition.

5. It is clear that the Contemner has persisted in not complying with or Original Order in Writ Petition No. 917 of 1992 decided on 29-4-1992, although a chance to rectify his mistake was given to him in previous Contempt Petition No. 173 of 1992 decided on 14-10-1992. He is, therefore, liable to be punished for contempt. However, the learned Counsel appearing for him has requested us not to take any action against him and that he would undertake to pay the enhanced compensation to the petitioner in compliance with our order dated 29-4-1992 in Writ Petition No. 917 of 1992 by making the payment of the difference of compensation between the enhanced compensation granted to the petitioner in his reference proceedings and the enhanced compensation granted to the other similarly situated persons by the Reference Court as per its order dated 17-41990 referred to in Writ Petition No. 917 of 1992 within 15 days from the date of this Order. He has also stated before us that the Contemner would file an undertaking to that effect in this Court."

10 On the other hand, the learned counsel for Respondent Nos.1 and 2 has vehemently opposed the Contempt Petition. He submits that they filed Affidavit in Reply dated 02.08.2021. He submits that there is no question of considering the present Contempt Petition in view of the subsequent development. He submits that as per the orders passed by this court, they have already reserved one structure for the Petitioner for allotment so that they can start the school immediately. He submits that to that effect, Respondent Nos.1 and 2 made a statement in their Affidavit

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in Reply dated 02.08.2021. In support of his contention, he relies on para Nos.6, 7, 8 and 15 of the Affidavit in Reply.

"6 I say that, at Sangharsh Nagar, Chandivili, Building No. 35, Ground plus three upper floors has been constructed and is kept reserved for a School as a Rehabilitation Built-Up Area. I say that, presently the building stands constructed but the Occupancy Certificate is not yet issued as the peripheral work and compound wall is not yet complete. I say that, in the said Rehabilitation Scheme at Sangharsh Nagar around 35 buildings are constructed and Occupancy Certificates have been issued in respect of around 11,666 tenements and allotments have been made to the eligible occupants through the Chief Conservator of Forest Sanjay Gandhi National Park to around 11,385 eligible Slum Dwellers.

7 I say that the Chief Executive Officer of Slum Rehabilitation Authority received a letter dated 21.03.2018 from the Chief Conservator and Director, Sanjay Gandhi National Park, Borivili to the effect that, the communication made by the Conservator's Office in pursuance of the Order passed in W. P. No. 742 of 2006 that the direction of eligibility of Petitioner was wrong and that therefore it was necessary to apply for a review before the Hon'ble High Court. The Conservator Forest Office therefore informed the Chief Executive Officer that, allotment be not made to Limboni Vidya Niketan i.e, the Petitioner herein till further orders from the Hon'ble High Court or the State Government. The Chief Conservator also informed that they have already started taking steps for applying for recalling of order in Writ Petition No. 742 of 2006. A copy of the said letter dated 21.03.2018 is annexed hereto and marked as Annexure-1. I say that similar such letter dated 20.02.2020 was further received by the Slum Rehabilitation Authority from Chief Conservator of Forest, Sanjay Gandhi National Park. A copy of the said letter dated 20.02.2020 is annexed hereto and marked as Annexure-2.

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8. I say that by a letter dated 09.03.2020, the Chief Conservator of Forest again reiterated that the opinion of his office holding the Petitioner as eligible was wrong. He therefore called upon SRA to submit information on the action taken. Copy of the said letter dated 09.03.2020 is annexed hereto and marked as Annexure-3. A reply was given by SRA on 14.03.2020 that the school was not yet transferred to Petitioner Institution as per his instructions and that further action will be taken on receipt of instruction from him. Copy of the said letter dated 14.03.2020 is annexed hereto and marked as Annexure-4.

15. I say that now the building in which the Petitioner is to be accommodated as per order of Hon'ble High Court dated 16.02.2010 in Writ Petition No. 57 of 2009 is near completion, however Occupation Certificate (O.C) is yet to be issued. Once the Occupation Certificate (0.C) is issued on the Developer completing all the formalities, the Respondent will hand over the premises to Petitioner in compliance of directions of Hon'ble High Court. The delay occurred in Rehabilitation of Petitioner is not deliberate on the part of Slum Rehabilitation Authority and its officers. I therefore, pray and submit that no action for contempt be initiated against the Respondents. I however submit that the Competent Authority having informed the SRA that it's earlier opinion that the Petitioner Institution is eligible, is wrong, the SRA reserves it's right to take action in accordance with law against the Petitioner institution if finally it is established that the Petitioner institution is not eligible."

11 The learned counsel for Respondent Nos.1 to 4 submits that bare reading of the Affidavit in Reply filed by the Respondents clearly shows that they are ready and willing to obey the orders passed by this court. He submits that just because the letters received from the Chief Conservator of Forest, the earlier decision taken by them holding that the Petitioners are entitled to the alternate

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land, is not correct, it remained on the part of the Respondents to comply with the orders passed by this court. He submits that it is specifically stated by the Forest Department in their correspondence that they have decided to file appropriate application to review the earlier orders passed by this court in which it is held that the Petitioner is entitled to the alternate accommodation.

12 The learned counsel for the Respondents submits that bare reading of the Affidavit in Reply filed by the Respondents clearly shows that there is no wilful default on their part. He submits that they are ready and willing to comply with the orders passed by this court, however, because of the objection raised by the Forest Department, it remained on their part to comply with the same.

13 The learned counsel for the Respondent submits that, apart from the Contempt Petition, the Petitioners have alternate efficacious remedy to take appropriate steps for execution of the order dated 16.02.2010 passed by this court in Writ Petition No.57/2009. He submits that when alternate efficacious remedy is available, there is no question of entertaining the Contempt Petition for the same cause of action. He submits that bare reading of the affidavit filed by them clearly shows that there is no wilful defiance of the order passed by this court. Therefore, in the interest of justice, this Hon'ble Court be pleased to dismiss the Contempt Petition with costs.

14 We heard both sides at length. It is to be noted that there is no dispute that this court, by order dated

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16.02.2010 in Writ Petition NO.57/2009 had directed the Respondent SRA to allot alternate structure to the Petitioner to start their school. Moreover, the Respondent SRA had made a statement before this court that the Developer has constructed the building to be handed over to the Petitioner in compliance of the order passed by this court from time to time. Similarly, the Respondents have specifically pointed out in the reply that they are ready and willing to comply with the orders passed by this court but because of the objection raised by the Forest Department, it is not possible for them to handover possession of the structure which is constructed for the Petitioner's school only.

15 Bare reading of the affidavit of the Respondents shows that there is no wilful default on the part of the Respondents to defy the orders passed by this court.

16 It is to be noted that the Apex Court, in the matter of Manish Gupta & Ors. Vs. Gurudas Roy (1995) 3 SCC 559 held that the dis-obedience of the courts' order constitute contempt only when wilful or deliberate. In the instant case, it is crystal clear that the reply filed by the Respondents shows that they are ready and willing to comply with the orders passed by this court but because of the objection raised by the Forest Department, it is not possible for them to do so.

17 Even the Apex Court, in the matter of P.K.Singh Vs. S.N.Kanungo & Ors. (2010) 4 SCC 504 held that the bona

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fide attempts made by the Government Officials on behalf of his Department to obey the orders passed by this court, such conduct cannot be held to be contemptuous. In the present proceedings, the Respondents have shown their willingness to comply with the order passed by this court, subject to clearance from the Forest Department.

18 The authority relied upon by the Petitioners in the matter of Sudhakar Kawale (supra) is not applicable in the facts and circumstance of the case in hand. Because, in that case also, the Apex Court held that, whether disobedience is wilful or not, is to be seen.

19 It is to be noted that the Petitioner can take appropriate steps other than the contempt to execute the order passed by this court for allotment of alternate accommodation to start the school.

19 In the above mentioned facts and circumstances of the case and the law laid down by the Apex Court, we are of the view that the Respondents have made out a case to show that there is no wilful disobedience on their part of the orders passed by this court, at all.

20     Hence, following order is passed:

       a.      The Contempt Petition stands dismissed.

       b.      No order as to costs.




(PRITHVIRAJ K. CHAVAN, J.)                  (K.K.TATED, J.)

Basavraj G. Patil                                                  12/12