Bombay High Court
Shri.Bhaskar Walku Meher vs State Of Maharashtra on 6 October, 2023
Bench: B.P. Colabawalla, M. M. Sathaye
2023:BHC-AS:29378-DB
CP-314-2023 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 314 OF 2023
IN
WRIT PETITION NO. 1176 OF 2020
Shri. Bhaskar Walku Meher )
Age : 71 Years, Occu.: Retired )
Residing at Deep Darshan, )
Post Eranjad, Taluka Ambernath )
Dist. Thane ) ...Petitioner
Versus
1. State of Maharashtra )
2. Jagatsingh Rajesingh Girase )
The then Competent Authority )
Being Sub Divisional Officer , )
Ulhasnagar, Tal. Ambernath, )
Dist. Thane ) ...Respondents
Mr. Prathamesh Bhargude a/w. Mr. Sharad Dhore and Mr. Sumit
Sonare, for Petitioner.
Mr. A.I. Patel, Addl. GP and Ms. M.S. Bane, AGP, for
Respondent/State.
Mr. G.S. Godbole, Senior Counsel a/w. Ms. Ashwini B. Jadhav
i/b. Mr. Abhijit, Patil, for Respondent No.2.
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CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
RESERVED ON : SEPTEMBER 25, 2023
PRONOUNCED ON : OCTOBER 6, 2023
JUDGMENT (Per M.M. SATHAYE, J.) :
1. This Contempt Petition is filed complaining breach of
Order dated 17/09/2020 in Writ Petition No. 1176 of 2020 (hereinafter
"the said Order' and "the said Petition" for short). The Petitioner inter
alia prays to declare and hold that Respondent No. 2 (Mr. Jagatsingh
Rajesingh Girase, the then Competent Authority under National
Highways Act, 1956 / S.D.O. Ulhasnagar, Taluka Ambernath, District
Thane) has willfully disobeyed the said Order. The Petitioner further
prays for punishing the said Respondent No. 2 under the Contempt of
Courts Act, 1971 r/w. Article 215 of the Constitution of India. The said
Respondent No. 2 (alleged Contemnor) has appeared in this matter even
before pre-admission notice was issued by this Court.
2. Heard Mr. Bhargude, the learned counsel appearing for the
Petitioner and Mr. Godbole, the learned senior counsel for Respondent
No.2/Contemnor. Also heard Mr. Patel, Learned AGP for
Respondent/State. Perused the record.
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3. In the above Contempt Petition, Respondent No. 2
(Jagatsingh Rajesingh Girase) has filed an affidavit in reply affirmed on
25/07/2023. The Collector of Thane has also filed an affidavit dated
08/09/2023 on behalf of the State.
4. Mr. Bhargude submitted that the present Respondent No.
2, who was Respondent No. 1 in the above Writ Petition, was directed
under the Order dated 17/09/2020 to consider the application of the
Petitioner for referring the dispute of title and apportionment to the
Civil Court in respect of compensation receivable for acquisition under
the National Highways Act, 1956. He further submitted that when the
said Order was passed, the learned AGP appearing for the present
Respondent No. 2 stated that he will not distribute the compensation to
anybody until the competent court decides the issue of title and
apportionment of the amounts or any part thereof. This statement has
turned out to be a false statement because it has now transpired that the
amounts were already disbursed in favour of the opposite party in the
said Petition, by the present Respondent No. 2. Also the direction to
decide the Petitioner's application dated 30/08/2019 was disobeyed.
Mr. Bhargude further submitted that not only Respondent No. 2
committed contempt as narrated above, he himself as a plaintiff, had
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filed a civil Suit being Special Civil Suit No. 154 of 2020 seeking a
declaration that the disbursal made by him to the other co-owners is
legal and valid. Mr Bhargude however, fairly conceded that the plaint in
this suit has been rejected by Civil Jude, Senior Division Kalyan under
Order dated 02/01/2023. He submitted that this act of Respondent No.
2 to file a civil suit himself seeking to justify his own orders is brazen
and must be taken serious note of by this Court.
5. Mr. Godbole, the learned senior counsel appearing for
Respondent No. 2/Contemnor submitted that Respondent No. 2 has not
willfully breached the said Order dated 17/09/2020 or any of the
directions contained therein. He urged that it is a case of lack of proper
communication, because on 11.05.2020 itself Respondent No. 2 had
signed an affidavit in reply and had sent it to the Office of the
Government Pleader for filing in the said Petition. He submitted that
the rejection of the Petitioner's objection on 22/11/2019 as well as the
disbursal of the amount to the co-owners was already disclosed in the
said affidavit. He submitted that apparently, the said affidavit in reply
was either missed or was not brought to the notice of the concerned
AGP and therefore, a factually incorrect statement was made before the
Court on 17/09/2020. He submitted that though the factually incorrect
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statement was made by the concerned AGP, there is no element of
suppression or falsity involved. He submitted that at the relevant time
i.e. on 11/05/2020, the Covid Pandemic was going on and legal
procedures were disrupted, and therefore Respondent No. 2 had signed
on the affidavit in reply and had sent it across. The copy of the said
affidavit in reply dated 11/05/2020 is annexed to the reply filed in this
Contempt Petition. He submitted that since the Petitioner's objections
were already rejected and the amount of compensation was already
disbursed, way back in November 2019 itself, there was no question of
considering the Petitioner's application and passing necessary orders, as
directed in paragraph 4 of the said Order. Further he urged that, in any
case, Respondent No. 2 has tendered an unconditional written apology
in the present Affidavit in Reply as he has the highest regards for the
Orders passed by this Court. He further submitted that during the
pendency of this Contempt Petition, the present incumbent in the post
of Competent Authority, has already referred the dispute between the
Petitioner and co-owners to the Civil Court and Order dated
28/08/2023 is already passed by this Court in Writ Petition No. 4518 of
2023. He submitted that under this Order, a sufficient amount to secure
the Petitioner's claim has been directed to be deposited in the Civil
Court. So far as the filing of the suit by Respondent No. 2 is concerned,
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Mr. Godbole repeatedly clarified that he is not justifying this action of
Respondent No. 2 but pointing out that Respondent No. 2 had acted on
legal advice he received from the concerned Govt. Pleader at Kalyan,
which is clearly stated in his present Affidavit in Reply. The learned
Senior Counsel was thus at pains to point out the factual position
leading to present Contempt Petition. He submitted that in the aforesaid
facts and circumstances, a sympathetic and a lenient view be taken by
the Court considering the fact that Respondent No. 2 is a Government
Officer who was doing his duty and had acted on legal advice.
6. In rejoinder, Mr. Bhargude argued that the Petitioner was
never given any notice about the so called rejection of his objections on
22/11/2019 and further submitted that if the notice was given, the
Petitioner could have challenged the rejection of his objection
independently.
7. We have carefully considered the submissions and perused
the affidavit in Reply filed by Respondent No. 2 in the present contempt
petition. Respondent No. 2 has tendered an unconditional apology for
failing to file an application to seek clarification of the said Order. It is
stated by Respondent No. 2 that he was under a bone fide impression
having sought legal advice from the concerned Government Advocate at
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Kalyan that the correct mode of implementing the said Order was to file
proceedings in Civil Court. It is further stated that he had issued the
letter on 22/11/2019 disposing of / rejecting the objection raised by the
Petitioner and thereafter, the compensation amount was disbursed to
the co-owners as per their shares on 25/11/2019 and thereafter he was
directed to file an affidavit in reply on 12/02/2020 in the said Petition.
It is further stated that an affidavit in reply duly signed on 11/05/2020
by Respondent No. 2 was sent to the Office of Government Pleader for
filing in the said Writ Petition. It is further stated that though
Respondent No. 2 had forwarded his affidavit in reply, the same was not
brought to the notice of the concerned AGP representing Respondent
No. 2 and as a result thereof, the concerned AGP failed to communicate
the correct factual position to the Court. It is stated that on account of
lack of communication and omission to notice the affidavit in reply
already sent by Respondent No. 2, the concerned AGP failed to point out
to the Court that the Petitioner's objection was already decided and
rejected by letter dated 22/11/2019. It is further stated that immediately
on receipt of the said Order, Respondent No. 2 brought this fact to the
notice of the concerned AGP that inadvertently a wrong submission had
been made about the disbursement of compensation. However, the
concerned AGP suggested that nothing can be done now as the Order
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has already been passed. Thereafter Respondent No. 2 took legal advice
from the Government Advocate in charge of Civil Court, Senior Division,
Kalyan and filed the suit. It is stated that the said suit has been rejected.
It is stated that in the plaint of the suit also there is a reference to the
affidavit in reply filed by Respondent No. 2 in the said Writ Petition.
8. It is not disputed factually, that way back in November
2019 itself Respondent No. 2 had disbursed compensation in favour of
co-owners. It also appears from the record that the affidavit in reply
signed by Respondent No. 2 on 11/05/2020 discloses this factual
position about the rejection of the Petitioner's objection as well as
disbursement of the amount. If we consider the date on which the
Respondent No. 2 signed on his affidavit in Reply, it is apparent that at
the relevant time, Covid Pandemic was ongoing and strict requirements
of affidavits on oath and its filing were in suspension. It is also a fact
that in paragraph 11 of the plaint in the suit which Respondent No. 2
filed, albeit on erroneous advice, it is stated that he had filed an affidavit
in reply in the said Petition. The date of filing of the suit by Respondent
No. 2 is 28/09/2020, which is immediately after the said Order was
passed on 17/09/2020.
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9. The statement made by the concerned AGP (when the said
Order dated 17/09/2020 was passed) appears to be made without
considering the reply signed by Respondent No. 2. Perhaps the
concerned AGP did not have the benefit of getting the said reply on
time. The Courts were undergoing disruption of normal working due to
the Covid 19 Pandemic at the relevant time and there is a possibility that
the reply sent by Respondent No. 2 had not reached the concerned AGP
and due to lack of communication, an incorrect statement was made.
We therefore find this to be a fit case to give benefit of such doubt to
Respondent No. 2.
10. So far as the argument of the Petitioner that the rejection of
his objection on 22/11/2019 was not known to him, and if any notice
was given to him, he could have challenged the said rejection, we do not
propose to go into this aspect. We say so because we are conscious of the
fact that now the Petitioner's dispute about title and apportionment of
compensation with the co-owners, has been duly referred to the Civil
Court and by our separate Order dated 28.08.2023 passed in Writ
Petition No. 4518 of 2023. The Petitioner's claim has been sufficiently
secured under this Order.
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11. One more aspect needs to be mentioned. Under the said
order dated 17/09/2020, this Court had directed the concerned
authority, to whom the present respondent No. 2 reports, to issue a
warning that Respondent No. 2 shall do his duty with due diligence. We
had directed the state on 28/08/2023 to place on affidavit whether any
such warning has been issued to Respondent No.2. Learned AGP
pointed out that pursuant to our said direction, the present Collector of
Thane has filed an affidavit dated 08/09/2023 and informed that on
06/09/2023, a warning letter has been issued to Respondent no. 2. In
this affidavit, the Collector has also tendered an unconditional apology
for delay in issuing the said warning. The copy of the "Strict Warning"
letter dated 06/09/2023 is also placed on record.
12. Considering the facts narrated earlier and taking an overall
view of the matter, we do not find this to be a fit case to hold
Respondent No. 2 guilty of any Contempt. The Contempt Petition is
accordingly dismissed.
13. Before parting, however, we must note that the action of
Respondent No. 2 of filing a suit himself as plaintiff and seeking a
declaration from the Civil Court justifying his actions taken in discharge
of his official duty, is not befitting of the post he holds. It is almost
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unheard of. We agree with Mr. Bhargude that this action of Respondent
No. 2 is brazen. Since rejection of plaint of the suit filed by Respondent
No. 2 is not the subject matter before us in this Contempt Petition, we
are refraining from saddling Respondent No. 2 with costs. However, we
expect that the superiors of the Respondent No. 2 will monitor his
functioning in the future and take necessary corrective action, if the
occasion so arises. We leave it at that and say nothing more.
14. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this order.
[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
OCTOBER 6, 2023
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Signed by: Husen Nadaf
Designation: PA To Honourable Judge
Date: 06/10/2023 18:14:44
