Bombay High Court
Gulam Hazrat Abdul Rehman vs Alka Sasane And 6 Ors on 4 September, 2024
Author: M S Sonak
Bench: M. S. Sonak
2024:BHC-OS:13588-DB Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
Digitally signed
by LAXMIKANT conpw.13-2018-2 (F).doc
LAXMIKANT GOPAL
GOPAL CHANDAN
CHANDAN Date:
2024.09.04
14:43:58 +0530
Lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO. 13 OF 2018
IN
WRIT PETITION NO. 1940 OF 2017
1. GULAM HAZRAT ABDUL REHMAN,
Aged : 75 years, Occ : Business,
R/o. Room No.9, Mehboob Chawl,
Kalina Donger, Santacruz (East),
Mumbai - 400 029.
Having shop Address as (till
09.09.2017) BL/Serve, 175 Part N.
C.S.T. Road, Opp Gold Star
Apartment, Kalina
Santacruz (East),
Mumbai - 400 029 ...PETITIONER
~ versus ~
1. ALKA SASANE,
Assistant Commissioner,
H/East ward, MCGM, Prabhat
Colony, Santacruz (East),
Mumbai - 400 055
2. PRAVIN PARGANE,
Deputy Engineer,
H/East ward, Prabhat Colony,
Page 1 of 25
::: Uploaded on - 04/09/2024 ::: Downloaded on - 05/09/2024 15:21:03 :::
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
Santacruz (East),
Mumbai - 400 055
3. KARTIK GANDHI,
Assistant Engineer,
H/East ward, Prabhat Colony,
Santacruz (East),
Mumbai - 400 055
4. KALPANA Y. GADEKAR,
Senior Inspector of Police,
BKC Police Station,
Bandra (East),
Mumbai - 400 051
5. ARUN S. MANE,
Assistant Commissioner of Police,
Kherwadi Division, BKC Police
Station, Bandra (East), ...RESPONDENT
Mumbai - 400 051 NOS.1 TO
5/CONDEMNERS
6. MUNICIPAL CORPORATION OF GREATER
MUMBAI,
Through its Municipal
Commissioner,
MCGM Head Office,
Mahapalika Marg, Mumbai CST,
Mumbai - 400 001
7. STATE OF MAHARASHTRA,
Through Chief Secretary, ...RESPONDENT
State of Maharashtra, Mantralaya NOS.6, 7/NECESSARY
Mumbai - 400 032 OR FORMAL PARTIES
Page 2 of 25
::: Uploaded on - 04/09/2024 ::: Downloaded on - 05/09/2024 15:21:03 :::
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
A PPEARANCES
FOR THE PETITIONER Adv Bushra Sayed, a/w Adv Trupti
Gaikar, i/b Adv. Devendra Mishra.
FOR RESPONDENT-BMC Mr Anil Sakhare, Senior Advocate,
a/w Ms Sujata Puri, i/b Mr S. K.
Sonawane.
FOR RESPONDENT-STATE Mr Himanshu Takke, AGP.
CORAM : M. S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 30 August 2024
PRONOUNCED ON : 04 September 2024
JUDGMENT (Per M S Sonak J):
-
1. Heard Ms Bushra Sayed a/w Ms Trupti Gaikar i/by Mr
Devendra Mishra, learned counsel for the Petitioner, Mr Anil
Sakhare learned Senior Counsel a/w Ms Sujata Puri i/by Mr.
S. K. Sonawane for Respondent Nos. 1 to 3 and 6 ("BMC and
BMC officials) and Mr. Himanshu Takke, learned AGP for the
Respondents - State.
2. The Petitioner was the occupant of a 400 sq. ft.
commercial premises situated at Opp. Gold Star Apartment,
CST Road, Kalina, Santacruz (East), Mumbai--400 098 on the
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
land bearing CTS No.7246 (E) of village Kolekalyan, Taluka
Andheri, Mumbai Suburban District ("the said premises").
3. The Petitioner has pleaded that on 10 April 2003, the
BMC issued a notice under Section 314 of the Mumbai
Municipal Corporation Act, 1888 ("the MMC Act") for the
demolition of the said premises. After the Petitioner instituted
Writ Petition No.2209 of 2014 challenging the notice dated 10
March 2013 under Section 314 of the MMC Act, the BMC did
not act on this notice.
4. Instead, on 20 January 2015, the BMC issued a second
notice under Section 56(1) of the Maharashtra Regional and
Town Planning Act, 1966 ("the MRTP Act") for the demolition
of the said premises. The Petitioner challenged this notice
dated 20 January 2015 by appealing to the State Government
under Section 56(2) of the MRTP Act.
5. While the appeal was pending, the BMC issued yet
another notice dated 27 October 2016 under Section 56(1) of
the MRTP Act. The Petitioner pointed out that a notice dated
20 January 2015 had already been issued under Section 56(1)
of the MRTP Act, and the appeal against it was pending with
the State Government under Section 56(2) of the MRTP Act.
6. The learned counsel for the Petitioner contended that
there was no justification for issuing the third notice dated 27
October 2016 under Section 56(1) of the MRTP Act and that
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
such issuance was only to demolish the Petitioner's premises
unlawfully. Even the Petitioner filed a reply to the third notice
dated 27 October 2016 on 09 November 2016, protesting its
issue.
7. The Petitioner has alleged that on 08 July 2017, the
BMC demolished the neighbouring premises at the instance of
private builder M/s. Sunteck Realty, which was setting up a
project just behind the Petitioner's premises. On 12 July 2017,
Writ Petition No.2209 of 2014 was disposed of after recording
the statement of the BMC that it does not desire to take any
action against the Petitioner under Section 314 of the MMC
Act since notice under Section 56(1) of the MRTP Act was
already issued and even appealed by the Petitioner.
8. On 13 July 2017, the BMC officials came to demolish
the said premises, forcing the Petitioner to file Writ Petition
(L) No.1859 of 2017. On 13 July 2017, the Division Bench of
this Court, comprising A. S. Oka (as His Lordship then was)
and Smt. Vibha Kankanwadi, J, granted interim protection
restraining demolition and directed the State Government to
decide the Petitioner's appeal against the notice under Section
56(1) of the MRTP Act within two weeks.
9. The Petitioner has pleaded that despite the above order,
the first Respondent came to the site in August 2017 and, in
rude tones, orally warned the Petitioner and his son to vacate
the suit premises, failing which the BMC would forcibly
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
demolish the premises and confiscate all the goods. The
Petitioner has pleaded that he informed the first Respondent
about the pendency of the appeal before the State
Government under Section 56(2) of the MRTP Act, upon
which the first Respondent rudely replied that she would not
consider any stay order. After the demolition she would
happily tender apology before the High Court and that no
further action would be taken against her. The Petitioner has
pleaded that the first Respondent told the Petitioner to come
and meet her in the office at H/East ward. He pleaded that
she spoke on mobile with the builder "Sunteck Realty" and
insisted that the Petitioner negotiate with the builder by
surrendering the shop premises.
10. The Petitioner has pleaded that despite this Court's
order dated 13 July 2017 directing the State Government to
decide the Petitioner's appeal within two weeks and for
restraint on the demolition of the said premises during this
period, the State Government failed to decide the Petitioner's
appeal or even the application for interim relief. Therefore,
the Petitioner was forced to file another Writ Petition (L)
No.2067 of 2017 seeking urgent protection.
11. On 02 August 2017, the Division Bench of this Court,
comprising A. S. Oka (as His Lordship then was) and Smt.
Vibha Kankanwadi, J, once again directed the Appellate
Authority (State Government) to decide the Petitioner's
application for interim relief in the pending appeal as
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
expeditiously as possible and in any event, on or before 06
September 2017. This Court directed that till the
communication of the order on the application for interim
relief, the ad-interim relief granted on 13 July 2017 in Writ
Petition (L) No. 1859 of 2017 would continue to operate.
Further, if the application for interim relief were rejected, the
ad-interim relief would continue to operate for two weeks
from the date the order of rejection was communicated to the
Petitioner.
12. This Court's order dated 02 August 2017, of which
contempt is alleged, is transcribed below for the convenience
of reference:-
". Not on board. Taken on board.
2. Heard the learned counsel appearing for the
petitioner, the learned counsel for respondent no.1
and the learned AGP for respondent no. 2. The
learned AGP, on instructions, states that the
application for interim relief in the appeal preferred
by the petitioner could not be decided within the time
provided under order dated 13 th July, 2017 in view of
the fact that monsoon session of legislature is going
on, which is expected to end on 17th August, 2017.
3. Hence, we need not keep this Petition pending
and the same is disposed of by passing the following
order :
ORDER
I. We direct the appellate authority to decide the
application for interim relief in the pending appeal as
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
expeditiously as possible and in any event on or
before 6th September, 2017.
II. Till the date of communication of the order on
the application for interim relief, the ad-interim relief
granted in terms of clause (I) of paragraph 3 of the
order dated 13th July, 2017 in Writ Petition (L) No
1859 of 2017 will continue to operate. If the
application for interim relief is rejected, the said ad-
interim relief will continue to operate for a period of
two weeks from the date on which the order of
rejection of the application for interim relief is
communicated to the petitioner.
III. We make it clear that we have made no
adjudication on merits of the pending appeal and the
application for interim relief. The same shall be
decided on merits without being influenced by grant
of ad-interim relief by this Court."
13. The Petitioner's appeal against the notice under Section
56(1) of the MRTP Act and the application for interim relief
was rejected by the State Government on 06 September 2017.
In terms of this Court's order dated 02 August 2017, the
interim relief granted by this Court on 13 July 2017 in Writ
Petition (L) No.1859 of 2017 was to operate for two weeks
from the date of communication of such order.
14. Since the date of communication of this order is unclear,
it is taken as 06 September 2017, i.e. date of the order. The
BMC was expressly restrained from demolishing the premises
for two weeks from this date.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
15. Still, on 09 September 2017, i.e. within hardly three
days from the order dated 06 September 2017, the second
and third Respondents, on the instructions of the first
Respondent, reached the site at about 12 noon with two JCBs,
15-20 labourers and heavy police protection provided by the
fourth and fifth Respondents. 09 September 2017 was a
second Saturday; therefore, it was impossible for the
Petitioner to rush to any Court and complain about violating
the Court's orders.
16. The Petitioner has pleaded that the above persons broke
open the lock of the premises, did not allow the Petitioner to
remove the goods in the said premises and, with the help of
two JCBs, labourers, and heavy police protection, demolished
the said premises. The Petitioner has pleaded that he showed
the copy of this Court's order dated 02 August 2017 to ACP
Mr. Arun S Mane, who was personally present at the site.
However, the said ACP refused to consider the order, and even
the corporation officers refused to consider the Petitioner's
request, so they demolished the premises.
17. The Petitioner has pleaded that an FIR was registered
against him, alleging that he had committed offences under
Sections 353, 341, 504, 506, and 34 of the Indian Penal Code.
The Petitioner and his son were arrested from the site at 2.20
p.m. and detained at Bandra Kurla Police Station until about
7.30 p.m. when they were released on bail.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
18. The Petitioner has pleaded that the Corporation and
police officials cleared all the goods from the said premises
and put up a board at the site stating that this was BMC's
property and that action would be taken against any
encroachers.
19. The Petitioner has placed on record the photographs
capturing the demolition by JCBs and the board put up at the
site. The Petitioner has alleged that the first Respondent
placed flower pots at the site, which were provided by the
builder. Even the photographs of said flower pots placed at the
demolished site have been produced along with this Petition.
20. The Petitioner has pleaded that this entire episode of
demolition was not only photographed but was also captured
by CCTV cameras of the road traffic police department
installed on the traffic signals located at the junction of CST
Road and BKC Road. The Petitioner has specifically pleaded
that the fifth Respondent himself, lathi, charged on the
gathering at the site during the demolition.
21. On 28 November 2017 this Court issued notice to the
Respondents returnable in the second week of January 2018.
Pursuant to the notice, the Affidavits in Reply have been filed
by Smt. Alka Sasane, Assistant Commissioner (Respondent
No.1), Shri Pravin Parghane (Respondent No.2) and Shri
Kartik Gandhi (Respondent No.3). Respondent Nos. 4 and 5
have not bothered to file any affidavits in this matter.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
22. Smt. Alka Sasane (Respondent No.1), in her affidavit
filed on 29 August 2024, claimed that she did not intend to
violate the order made by this Court on 02 August 2017.
However, "inadvertently in mass demolition at CST Road, the
action of demolition of the Petitioner's structure has been
taken along with other structures before the expiry of two
weeks which was not intentionally done but, as the CST Road
widening and Santacruz Chembur link road flyover over there
was on priority".
23. The above admission about violation of this Court's clear
and unambiguous order dated 02 August 2017 is contained in
paragraph 12 of the affidavit dated 29 August 2017 and is
transcribed below for the convenience of reference:-
"12. I say that these Respondent have no
intention to violate the orders passed by the Hon'ble
Court dated 02.08.2017. However, I say that
inadvertently in mass demolition at CST Road, the
action of demolition of the Petitioner's structure has
been taken alongwith other structures before the
expiry of two weeks which was not intentionally done
but, as the CST Road widening and Santacruz
Chembur Link Road flyover over there was on priority.
I say that CST Road is a part of Santacruz Chembur
Link Road which is major link connecting Western and
Eastern Suburbs. The said structures were located at
the Curvature of the BKC Junction which is a high
frequency traffic zone. The structures were causing
intensive congestion leading to huge traffic jam and
loss of valuable time of vehiclists. Also, the work of
construction of elevated corridor was in progress at
the center of the road due to which the center portion
is barricaded which has made the road very narrow. I
say that there is no any intention to disobey the orders
passed by the Hon'ble court."
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
24. Significantly, Ms Alka Sasane, a senior Municipal Officer,
has accepted the unambiguous pleadings in paragraph 5 (vii
and viii) by not denying the same in the affidavit filed. These
averments are transcribed below for the convenience of
reference:-
"5. (vii) Meanwhile, in the month of August 2017,
Respondent No. 1- Alka Sasane - Assistant
Commissioner, H/East Ward while taking action of
demolition in the vicinity, visited above said suit
premises and orally warned the Petitioner and his son
to vacate the suit premises and to remove all the
belonging, articles kept inside said shop premises
otherwise she would forcefully demolish the same
and confiscate all the goods, articles. At that time,
Petitioner and his son orally requested her not to take
law in her hand and to provide them suitable
alternate Accommodation as per law. At that time,
Petitioner showed Order of the Hon'ble High Court
and further informed her that their Appeal was
pending before the State Government, when she
rudely replied that she would not consider any stay
order and after demolition she would happily tender
apology before the High Court and no further action
would be taken against her.
(viii) Petitioner states that, looking at her rude
behavior, Petitioner and his son requested her to
consider their case, protection status and to provide
them suitable alternate Accommodation. Petitioner
also orally informed her that his premises was
situated on private property viz. CTS No. 7246 (E)
and that the Corporation had not acquired it.
However, she warned the Petitioner that the said
premises was on her radar and will be demolished at
any time. Respondent - Contemnor No. 1 told the
Petitioner to come and meet her in her office at
H/East ward. She also talked on mobile with the
builder Sunteck Realty and insisted us to negotiate
with the builder by surrendering the shop premises.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
Due to such behaviour of Contemner No. 1 - Alka
Sasane, Petitioner and his son were under
tremendous fear and tension and hence, attempted to
meet builder Sunteck Realty, however, the builder did
not respond."
25. Ms Alka Sasane has also not denied the clear and
categorical averments in paragraph 5(x) of the Contempt
Petition in which the Petitioner has pleaded that the second
and third Respondents reached the site on 09 September
2017, (second Saturday) at about 12 noon " as per instructions
of contemnor No. 1 i.e. Smt. Alka Sasane " and under police
protection and armed with two JCBs and 15 to 20 labourers,
demolished Petitioner's said premises. The petitioner has
pleaded that he showed the BMC officials and police officers
at the site this Court's order, but none of them were prepared
to consider the same and proceeded with the demolition.
26. Thus, Smt. Alka Sasane has admitted to the
disobedience of this Court's order dated 02 August 2017. Her
only plea is that such disobedience was not willful or
intentional but that the same was "inadvertent", given the
mass demolition that was carried out at the site on the said
date coupled with the necessity of carrying out such
demolition to ease traffic flow.
27. This defence, which a senior officer has very casually
raised, does not commend us and cannot be readily accepted.
The allegations about nexus with the builder - Sun Realty,
have not been denied. There is a specific allegation that Smt.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
Alka Sasane conversed with the builder on a mobile phone
and required the Petitioner and his son to settle the matter
with the builder. Even these allegations have not been denied.
There is no statement that Smt. Alka Sasane was unaware of
this Court's order dated 02 August 2017. There is more than
sufficient material about her knowing about this order dated
02 August 2017. In any event, the Petitioner has pleaded this,
and the affidavit filed by Smt Alka Sasane does not even deny
the same. The Petitioner pleaded with the officers and police
officers at the site not to demolish his premises because of this
Court's order dated 02 August 2017, which he showed them.
Still, the demolitions were carried out ruthlessly and in scant
regard for this Court's order dated 02 August 2017.
28. As noted above, very significantly, Smt. Alka Sasane has
not even bothered to deny the clear and definite averments in
paragraph 5(vii) of the Contempt Petition. These averments
referred to the Petitioner showing this Court's order to Smt.
Alka Sasane and she rudely replying that she would not
consider any stay order, and after demolition, she would
happily tender apology before the High Court and no further
action would be taken against her. This is precisely what Smt.
Alka Sasane has done by admitting the disobedience, giving
some flimsy justification, and tendering an unconditional
apology.
29. Mr Pravin Parghane (Respondent No.2) has also filed an
affidavit in this matter, the same as the affidavit filed by Smt.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
Alka Sasane. This officer admitted to his presence at the site
on 09 September 2017 and carried out the demolition of the
Petitioner's premises. In this affidavit, there is not even any
denial about the clear averments of how the Petitioner and his
son showed this officer, the third Respondent and the Police
officials this Court's order dated 02 August 2017 and how
they brushed aside this order and proceeded with the
demolition.
30. In paragraph 12 of his affidavit dated 29 August 2024,
Mr Pravin Parghane stated that "inadvertently in mass
demolition at CST Road, the action of demolition of the
Petitioner's structure has been taken alongwith other
structures before the expiry of two weeks which was not
intentionally done as the CST road widening and Santacruz
Chembur Link Road flyover over there was on priority".
31. Mr. Pravin Parghane has made the usual averments that
he has no intention to disobey the Court's orders and that he
is tendering his unconditional apology to the Court since he
has the utmost respect for this Court and the orders passed.
32. Again, the explanation offered by Mr Pravin Parghane
hardly commends any acceptance. The apology is far from
sincere. Significantly, there is no denial whatsoever of the
averments that this officer was shown this Court's order at the
site. Still, he proceeded with the demolitions by completely
disregarding this Court's order. The breach of this Court's
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
order is accepted by the second Respondent, and the
justification for the breach is far from satisfactory.
33. Mr Kartik Gandhi (Respondent No. 3) also filed an
affidavit on 26 April 2018. Again, even this affidavit is the
same as the affidavits filed by the first and second
Respondents. This officer was also present at the site and has
not denied the averments in the Contempt Petition that this
Court's order was shown to him, and despite this, he and
others proceeded with the demolition. In paragraph 11, Mr
Kartik Gandhi stated that he did not intend to violate this
Court's order dated 02 August 2017. However, "the action of
demolition has been taken before the expiry of two weeks is
not intentionally as the CST Road widening and Santacruz
Chembur Link Road flyover over there is on priority".
34. Thus, the first, second, and third Respondents filed
identical affidavits in which they admitted the breach of this
Court's order. The explanation offered for such a breach is
frivolous. In fact, there is an admission that road widening
was a priority, thereby meaning that obedience to the Court's
orders was only optional or, in any event, not a priority.
35. The apologies tendered by the BMC officials are far from
sincere and, in fact, the borders on casualness. Considering
the averments in paragraph 5(vii) of the Contempt Petition,
which averments have not even been denied by Smt. Alka
Sasane, we get the impression that even senior officers of the
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
BMC have no qualms about disobeying the Court's orders with
impunity. They seem to believe that once a fait accompli
situation is presented and an apology is tendered, the Courts
would take no action against them. In paragraph 5(vii), the
Petitioner has specifically quoted Alka Sasane as having said
so, and Alka Sasane, in her affidavit, has not denied this clear
and definite averment.
36. In any event, considering the circumstances, it is
apparent that the orders of this Court were disobeyed with
impunity, and the Petitioner's premises were ruthlessly
demolished with the help of the police. The police officials
have not even filed any replies in this Contempt Petition.
There are clear averments of how the Petitioner and his son
pleaded with the fourth and fifth Respondents, who are high-
ranking police officials, after showing them this Court's order.
Still, the demolitions continued in disregard of the explicit
orders of this Court.
37. The defence that the demolitions were carried out
"inadvertently" cannot be accepted. Nothing can be
inadvertent about the demolition, which proceeds even after
the stay order granted by this Court is specifically shown to
the officials at the site. Such officials insist on proceeding with
the demolition and carry it out ruthlessly.
38. Besides, this is a matter where the BMC, by issuing
repeated notices, forced the Petitioner to approach this Court
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
on several occasions. Initially, a notice was issued under
Section 314 of the MMC Act, forcing the Petitioner to file Writ
Petition (L) No.2067 of 2017. This was followed by notice
under Section 56(1) of the MRTP Act dated 20 January 2015,
forcing the Petitioner to appeal against the same to the State
Government under Section 56(2) of the MRTP Act. Pending
such Appeal, the BMC issued yet another notice dated 27th
October 2016 under Section 56(1) of the MRTP Act.
39. Apprehending that the latest notice would be enforced
by abandoning the previous notice, the Petitioner was forced
to institute Writ Petition No.2209 of 2014 and obtain urgent
interim reliefs on 13 July 2017 when the BMC officials were
at the site to carry out demolitions under the second notice
dated 27 October 2016.
40. Despite this Court's directions to the State Government
to dispose of the Appeal within two weeks, the Appeal was
not disposed of, and the BMC, once again, threatened to
demolish the Petitioner's premises. Therefore, the Petitioner
was again forced to institute Writ Petition (L) No.1859 of
2017 and obtain the order dated 02 August 2017 on the eve
of the demolition. It is this order that the BMC and its officials
have disobeyed with impunity.
41. Considering the history of litigations and the fact that
the Petitioner was forced to file several Petitions and
proceedings against the BMC regarding the said premises, the
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
defence that this demolition was "inadvertent" should never
have been taken by the senior BMC officials. In any event, this
defence is entirely frivolous and cannot be accepted.
42. The Petitioner has claimed losses of over
Rs.25,00,000/-. However, we do not have enough material to
accept this figure. However, since we are satisfied that the
BMC and its officials have intentionally, willfully and in utter
defiance disobeyed our orders and proceeded with the
demolition of the Petitioner's premises, the BMC must pay the
Petitioner an amount of Rs.5,00,000/- within four weeks from
today. The BMC must recover this amount from Respondents
1, 2 and 3 within eight weeks from today and file a
compliance report in this Court.
43. The above amount that we have ordered the BMC to pay
the Petitioner is without prejudice to the Petitioner's right to
file appropriate proceedings and recover damages. This
direction for payment is made because we are satisfied that
Respondents 1, 2 and 3 have willfully and intentionally
disobeyed our orders, thereby severely prejudicing the
Petitioner and requiring him to expend a considerable amount
only on Court litigations detailed above.
44. Recently in Ajay Kumar Yadav @ Ajay Rai & ors. Versus
State of Bihar & ors.1, the Hon'ble Supreme Court was
concerned with deliberate defiance of the interim order dated
1 Petition for Special Leave to Appeal (C) No. 7222 of 2024 decided on 5 March 2024.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
22 March 2024 made by the Hon'ble Supreme Court. In Ajay
Kumar Yadav (supra), the Bihar High Court issued directions
for the demolition of houses/buildings constructed by the
Petitioners allegedly on public land. The Petitioners
complained that such directions were issued in a tearing
hurry, and against this background, the Hon'ble Supreme
Court made an interim order on 22 March 2024, which read
as follows:-
"1. Issue notice, returnable on 17.05.2024.
2. Meanwhile, pending the statutory appeal, the
parties are directed to maintain status quo re:
demolition and further construction at the site.
3. The Appellate Authority-cum-District Magistrate,
Patna is directed to decide the pending appeal in
accordance with law within six weeks and submit a
compliance report to the High Court."
45. Despite the above order by the Hon'ble Supreme Court,
the statutory authorities, regardless of the directions to
maintain the status quo, continued the demolition drive
beyond 22 March 2024 and demolished all the constructions/
buildings. The only explanation rendered on behalf of the
statutory authorities was that the status quo order made by
the Hon'ble Supreme Court was subject to the pendency of the
statutory appeals, and such appeals had already been decided.
46. The Hon'ble Supreme strongly deprecated the conduct
of the statutory authorities in the following words:-
"4. We strongly deprecate the conduct of the Authorities
and their lame excuse. If the statutory appeals had
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
already been decided, it was imperative for them to
move an appropriate application and seek
vacation/modification of the order dated 22.03.2024. A
District Magistrate or the Municipal Authorities cannot
sit over the interim orders of this Court and continue
with an exercise despite the restraint order.
5. We are informed that the petitioners have meanwhile
filed writ petitions before the High Court challenging the
eviction orders and those passed by the Appellate
Authority under Section 11 of the Bihar Public Land
Encroachment Act, 1956.
6. Since the above-stated appeals are pending, we
dispose of this special leave petition without going into
merits of the case, with a request to the High Court to
decide those writ petitions objectively, without being
influenced by the directions passed by it in the PIL
Jurisdiction. Each writ petition shall be dealt with as per
its own merits and in accordance with law.
7. We further direct that the petitioners shall be entitled
to compensation/damages for the demolition of their
structures, irrespective of any result of the writ petitions.
We are granting this compensation in the peculiar facts
and circumstances of this case to maintain the majesty of
law as there is a willful and deliberate defiance of the
interim order dated 22.03.2024. The amount of
compensation, however, shall be determined by the High
Court. The Chief Secretary of the State is directed to
recover the amount of damages as may be paid to the
petitioners, from the officers of the Patna Municipal
Corporation or the District Administration, who are
found responsible for defying the order dated
22.03.2024."
47. In paragraph 7 of the Hon'ble Supreme Court order
quoted above, directions were issued to pay
compensation/damages for demolishing the Petitioners'
structures, irrespective of any result of the Writ Petitions. The
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
Hon'ble Supreme Court explained that this compensation was
being granted to maintain the majesty of law as there was
willful and deliberate defiance of the interim order dated 22
March 2024. The Chief Secretary of the State was directed to
recover the damages that may be paid to the Petitioners from
the officers of the Patna Municipal Corporation or the District
Administration who were found responsible for defying the
order dated 22 March 2024.
48. In Municipal Corporation of Greater Mumbai and others
Versus Sunbeam High Tech Developers Private Limited 2, the
issue involved whether, if a Municipal Corporation demolishes
a structure in exercise of its powers vested in it but in
violation of the prescribed procedure, the High Court could
direct the owners/occupiers of the building to reconstruct the
demolished structure.
49. The Hon'ble Supreme Court held that without verifying
whether the demolished structure was legal, the Court should
not usually issue directions permitting the re-erection of the
demolished structure. At the same time, the Hon'ble Supreme
Court, in paragraphs 16 and 17, held that it cannot approve
the action of the Municipal Corporation or its officials in
demolishing the structures without following the procedure
prescribed by law. If a structure is illegal, even though it has
been demolished illegally, it should not be permitted to come
up again. If the Municipal Corporation violates the procedure
2 2019 (20) SCC 781
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
while demolishing the building but the structure is totally
illegal, some compensation can be awarded and, in all cases
where such compensation is awarded the same should
invariably be recovered from the officers who have acted in
violation of law.)
50. In this case, Respondents 1, 2, and 3, i.e., BMC officials,
willfully and intentionally disobeyed this Court's order dated
02 August 2017. The explanation offered is frivolous and does
not commend any acceptance. The Petitioner was forced to
institute no less than 4 to 5 legal proceedings in a desperate
bid to protect his premises. Despite favourable orders, by
involving the police, the BMC officials ruthlessly demolished
the said premises. The apologies offered are far from sincere
and do not inspire any confidence.
51. Mr. Sakhare, learned counsel for the BMC, submitted
that Respondents 1, 2 and 3 are relatively young officers, and
therefore, no strict action may be taken against them under
the Contempt of Courts Act. In the fond hope that, at least in
future, these officers, who are high-ranking officers of the
BMC, do not act in such a high-handed manner or disregard
Court orders with impunity, we refrain from imposing any
punishment on them under the Contempt of Courts Act on
this occasion. However, these officers must rid themselves of
the impression that court orders can be disobeyed with
impunity and that no action will ever be taken against them
once they apologies.
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
52. Though we are not punishing Respondents 1, 2, and 3
for having willfully and intentionally disobeyed this Court's
order dated 02 August 2017, we leave it to the Commissioner
of BMC to consider inquiring into the conduct of these three
officials or making a suitable endorsement in their
confidential rolls following the rules.
53. Regards the fourth and fifth Respondents, we note that
they have not even bothered to file any reply in this Contempt
Petition. The role of the police is to uphold and protect the
rights of the Petitioners, rather than to misuse their powers to
arrest individuals who have sought redress for alleged
illegalities and wrongful actions by BMC officers. In this
instance, the Petitioners presented the High Court order to the
police officers, which appears to have been ignored. The
absence of any explanation from the Respondents concerning
the alleged arrests substantiates the Petitioner's claims, and
that is absolutely unacceptable and deserves a stringent
reprimand. In any event, we direct a copy of this order be
placed before the Commissioner of Police in Bombay so that
he can enquire into this incident within some reasonable time.
Mr Sakhare submitted that the petitioner had instituted a
Criminal Writ Petition against the police officials. Therefore,
we refrain from making any further observations on the
conduct of these police officials in this Petition.
54. This Contempt Petition is disposed of in the above terms
by directing the BMC to pay the petitioners Rs.5,00,000/-
Gulam Hazrat Abdul Rehman v Alka Sasane Assistant
Commissioner & ors.
conpw.13-2018-2 (F).doc
(Rupees Five Lakhs only) within four weeks from today, i.e. by
4 November 2024. This amount must be recovered from
Respondents 1, 2 and 3 within eight weeks of its payment to
the Petitioner. The Commissioner of BMC must file and serve a
compliance report in this court on or before 6 January 2025
on the action taken and the conclusions of the enquiry into
the conduct of the officers involved.
55. The Registry must list the matter for directions on 14
January 2025 to consider the compliance report.
56. All concerned must act on an authenticated copy of this
order.
(Kamal Khata, J) (M. S. Sonak, J)
