Bombay High Court
Vilas Bhikaji Salave vs The State Of Maharashtra Through ... on 2 February, 2021
Bench: V. V. Kankanwadi
921-CP-812-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
921 CONT. PETITION NO.812 OF 2019
VILAS BHIKAJI SALAVE
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE MINISTRY OF
REVENUE AND FOREST MANTRALAYA, MUMBAI AND ORS.
...
Advocate for Petitioner : Mr. Bhandari Anand P.
AGP for Respondent No.1 - State : Mr. S. B. Narwade
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 2nd February, 2021
ORDER :-
. Heard learned Advocate for the petitioner.
2. Petitioner is the original plaintiff, who had filed Regular
Civil Suit No.457 of 1991 before the Civil Judge Junior Division,
Newasa, District Ahmednagar for partition and separate possession,
which was decided on 13-09-2000. Objection was taken by the
defendant that land Gut No.3156/1-2-3 was a government land, but the
point has been decided in the said suit. The said suit was decreed.
Plaintiff was held to be entitled for 4/15 th share in the suit scheduled
properties. So also, the share of the defendants was carved out and the
precept was directed to be sent to the Collector. The said decree was
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further challenged by original defendant No.1 in Regular Civil Appeal
No.167 of 2000 before the learned Additional District Judge,
Shrirampur. The said appeal was dismissed on 15-01-2005. Thereafter,
there appears to be another round of litigation in respect of execution
i.e. Regular Civil Suit No.190 of 2016, however, it appears that the
appeal arising out of the order below Exhibit-58 i.e. Miscellaneous Civil
Appeal No.05 of 2018 has been decided by the learned District Judge-1,
Newasa on 21-07-2018. In the said judgment, there is reference of
dismissal of the Second Appeal No.1104 of 2005 by this Court on
08-01-2015, which was challenging the judgment and decree passed in
Regular Civil Appeal No.167 of 2000 referred earlier. In the meantime,
it appears that the Final Decree Application No.01 of 2014 has been filed
and the learned Executing Court allowed the application and directed
that the decree be sent to the Collector for partition and separate
possession. The documents which are filed here would show that the
learned Tahsildar, Newasa has carried out the measurement and allotted
the shares and put the respective parties in possession. Mutation Entry
No.648 appears to have been taken and thereafter, as per the procedure,
it has been sanctioned. 7/12 extract to that extent appears to be
prepared. Thereafter, the matter carried to the Sub Divisional Officer,
Ahmednagar by the present respondents and it appears that the said
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appeal has been allowed.
3. Learned Advocate appearing for the petitioner submits that
though it was already decided in the suit i.e. Regular Civil Suit No.457
of 1991 as to the nature of the property in which the partition was to be
effected, yet, the Sub Divisional Officer intentionally went back and took
note of the order passed by the District Collector on 08-07-1988,
wherein it was mentioned that the land was forest land. When the
matter is already decided by the Civil Court, then the revenue authority
cannot have a contrary finding and, therefore, this is contempt of Court.
4. It is to be noted that the Civil Court has taken note of the
7/12 extract of the said land and still suit came to be decreed. The
shares of the respective parties have been carved out and the said
decision has been confirmed up to this Court. Now, as regards the
observations and then decision by the Sub Divisional Officer is
concerned, definitely, the present petitioner has every remedy to
challenge the said order as per the procedure of law. Whatever order
was passed by the Sub Divisional Officer appears to be the judicial order
or a quasi judicial order. Under such circumstance, it cannot be said that
it was an intentional order and further, when there is scope for
correcting it by way of challenge and the said remedy is available to the
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petitioner, it does not amount to contempt. Reference can be made to
the recent decision of the Hon'ble Supreme Court in Rama Narang Vs.
Ramesh Narang and others, [Contempt Petition (Civil) No.92 of 2008 in
Contempt Petition (Civil) No.148 of 2003 in Civil Appeal No.366 of
1998] dated 19-01-2021, wherein it is held that unless there is mens
rea, it will not constitute contempt of Court. Further, it has been
observed :-
"47. It would be apposite to refer to Section 2(b) of the Contempt
of Courts Act, 1971, which reads thus :-
"2. Definitions. - .....
(b) "civil contempt" means wilful disobedience to
any judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given
to a court."
48. It is thus clear that for bringing an action under the ambit of
civil contempt, there has to be a wilful disobedience to any
judgment, decree, direction, order, writ or other process of a court
or wilful breach of an undertaking given to the court..."
5. Further, reference can be made to the decision of the
Hon'ble Supreme Court in Hukum Chand Deswal Vs. Satish Raj Deswal,
[AIR 2020 SC 2100 : AIROnline 2020 SC 492], wherein it has been
observed :-
"16. At the outset, we must advert to the contours delineated by
this court for initiating civil contempt action in Ram Kishan vs.
Tarun Bajaj & Ors., (2014) 16 SCC 204. In paragraphs 11, 12 and
921-CP-812-2019.odt
15 of the reported decision, this Court noted thus:-
"11. The contempt jurisdiction conferred on to the law courts
power to punish an offender for his wilful
disobedience/contumacious conduct or obstruction to the
majesty of law, for the reason that respect and authority
commanded by the courts of law are the greatest guarantee to
an ordinary citizen that his rights shall be protected and the
entire democratic fabric of the society will crumble down if
the respect of the judiciary is undermined. Undoubtedly, the
contempt jurisdiction is a powerful weapon in the hands of the
courts of law but that by itself operates as a string of caution
and unless, thus, otherwise satisfied beyond reasonable doubt,
it would neither be fair nor reasonable for the law courts to
exercise jurisdiction under the Act. The proceedings are quasi-
criminal in nature, and therefore, standard of proof required
in these proceedings is beyond all reasonable doubt. It would
rather be hazardous to impose sentence for contempt on the
authorities in exercise of the contempt jurisdiction on mere
probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4
SCC 697, Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530,
Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of
Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, Sahdeo
v. State of U.P., (2010) 3 SCC 705 and National Fertilizers Ltd.
v. Tuncay Alankus, (2013) 9 SCC 600.
12. Thus, in order to punish a contemnor, it has to be
established that disobedience of the order is "wilful". The
word "wilful" introduces a mental element and hence, requires
looking into the mind of a person/contemnor by gauging his
actions, which is an indication of one's state of mind. "Wilful"
921-CP-812-2019.odt
means knowingly intentional, conscious, calculated and
deliberate with full knowledge of consequences flowing
therefrom. It excludes casual, accidental, bona fide or
unintentional acts or genuine inability. Wilful acts does not
encompass involuntarily or negligent actions. The act has to
be done with a "bad purpose or without justifiable excuse or
stubbornly, obstinately or perversely". Wilful act is to be
distinguished from an act done carelessly, thoughtlessly,
heedlessly or inadvertently. It does not include any act done
negligently or involuntarily. The deliberate conduct of a
person means that he knows what he is doing and intends to
do the same. Therefore, there has to be a calculated action
with evil motive on his part. Even if there is a disobedience of
an order, but such disobedience is the result of some
compelling circumstances under which it was not possible for
the contemnor to comply with the order, the contemnor
cannot be punished. "Committal or sequestration will not be
ordered unless contempt involves a degree of default or
misconduct." (Vide S. Sundaram Pillai v. V.R. Pattabiraman,
(1985) 1 SCC 591, Rakapalli Raja Ram Gopala Rao v.
Naragani Govinda Sehararao, (1989) 4 SCC 255, Niaz
Mohammad v. State of Haryana, (1994) 6 SCC 332, Chordia
Automobiles v. S. Moosa, (2000) 3 SCC 282, Ashok Paper
Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, State of
Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and Uniworth
Textiles Ltd. v. CCE, (2013) 9 SCC 753.
xxx xxx xxx
15. It is well-settled principle of law that if two interpretations
are possible, and if the action is not contumacious, a contempt
proceeding would not be maintainable. The effect and purport
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of the order is to be taken into consideration and the same
must be read in its entirety. Therefore, the element of
willingness is an indispensable requirement to bring home the
charge within the meaning of the Act. [See Sushila Raje
Holkar v. Anil Kak, (2008) 14 SCC 392 and Three Cheers
Entertainment (P) Ltd. v. CESC Ltd., (2008) 16 SCC 592."
Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik & Ors.,
(2000) 4 SCC 400, this Court expounded in paragraph 7 as
follows: -
"7. We may reiterate that the weapon of contempt is not to
be used in abundance or misused. Normally, it cannot be
used for execution of the decree or implementation of an
order for which alternative remedy in law is provided for.
Discretion given to the court is to be exercised for
maintenance of the court's dignity and majesty of law.
Further, an aggrieved party has no right to insist that the
court should exercise such jurisdiction as contempt is
between a contemner and the court. It is true that in the
present case, the High Court has kept the matter pending
and has ordered that it should be heard along with the first
appeal. But, at the same time, it is to be noticed that under
the coercion of contempt proceeding, appellants cannot be
directed to pay the compensation amount which they are
disputing by asserting that claimants were not the owners of
the property in question and that decree was obtained by
suppressing the material fact and by fraud. Even presuming
that the claimants are entitled to recover the amount of
compensation as awarded by the trial court as no stay order
is granted by the High Court, at the most they are entitled to
recover the same by executing the said award wherein the
State can or may contend that the award is a nullity. In such
a situation, as there was no wilful or deliberate disobedience
of the order, the initiation of contempt proceedings was
wholly unjustified."
Keeping the settled legal principle expounded in the
aforesaid decisions, in mind, we may now proceed to
consider the three stated violations of the order dated
22.2.2019 by the respondent to ascertain whether the same
is intentional and wilful disobedience of the order/direction
921-CP-812-2019.odt
passed by this Court."
6. Therefore, no case is made out to issue any notice. So also,
the petition itself is liable to be dismissed at the threshold. Hence, the
petition stands dismissed.
[SMT. VIBHA KANKANWADI, J.]
scm
