Debarshi Chakraborty vs Dr. Manoj Panth
2022 Latest Caselaw 2818 Cal

           IN THE HIGH COURT AT CALCUTTA
                        Special Civil Jurisdiction
                            (Appellate Side)

                            C.P.A.N. 346 of 2020
                                    With
                           I.A. No. CAN 1of 2020
                        (Old No. CAN 3436 of 2020)
                                     In
                            W.P.A 10804 of 2013

                            Debarshi Chakraborty

                                      Vs.

                            Dr. Manoj Panth, IAS.

Before: The Hon'ble Justice Arijit Banerjee
                      &
        The Hon'ble Justice Kausik Chanda

For the petitioner                : Mr. Milan Kumar Bhattacharyya, Sr. Adv.
                                    Mrs. Sulagna Bhattacharyya, Adv.

For the alleged contemnor        : Mr. Amitesh Banerjee, Ld. Sr. Adv.
nos. 1&2                           Mr. Supratim Dhar, Adv.
                                   Mr. Dhananjay Nayak, Adv.

Heard On                           : 21.01.2022, 28.01.2022, 02.03.2022,
                                     07.03.2022 & 22.04.202

CAV On                            : 22.04.2022

Judgment On                       : 13.05.2022


Arijit Banerjee, J.:


1.

This contempt application has been filed alleging wilful violation of a

judgment and order dated August 9, 2019, whereby, a public interest

litigation numbered as W.P. 10804 (W) of 2013 was disposed of. The

operative portion of the said order reads as follows:-

"In the aforesaid format of facts, we also notice that the

so-called builders and real estate promoters, who have been

impleaded, have not responded to the notices issued by this

Court. Therefore, to conserve the property of the State, as may be

found to be involved out of 1.36 acres, referred to in paragraph

5(b) of the aforequoted portion of the affidavit of the Special

Secretary, it is directed that the Principal Secretary, Land & Land

Reforms Department to the Government of West Bengal, who is

also stated to be the Land Revenue Commissioner, will take due

action in accordance with law to consider all aspects relating to

the entire extent of 2.71 acres and ensure that there is clear

demarcation between the vested land of 1.36 acres and rayati

land of 1.35 acres. Thereupon, the extent, which has been

granted under lawful authority of the Government to different

persons out of 1.36 acres of vested land, shall also be

ascertained. After demarcating the boundary between the vested

portion and rayati portion, the vested portion will be subjected to

such further enquiry as is deemed necessary including

demarcation of the lands which have been given on lease by the

Government.

On conclusion of such enquiry with requisite notice to all

persons eligible to receive such notice, the Principal Secretary of

the Land & Land Reforms Department, who is also the Land

Revenue Commissioner, will ensure that due process of law is

invoked and requisite statutory proceedings are initiated to

remove the persons who are in unlawful occupation, illegal

possession or squatting over the land. Any unauthorized

construction and the construction over land which are not those

over which construction could be made, shall be ultimately

ensured to be pulled down and the land cleared thereof. The land

vested in the Government should remain in the Government

under its complete control and physical possession to be dealt

with by the Government, as may be enjoined by the laws.

Let such exercise be carried out by the Principal

Secretary, Land & Land Reforms Department / Land Revenue

commissioner within an outer limit of six months from the date of

receipt of a copy of this order. We clarify that all issues raised

intra-parties as also those which may arise between other

persons, who may be eligible to participate in proceedings before

the Land Revenue Commissioner, will be left open and the matter

shall be decided by the Land Revenue Commissioner

untrammelled by anything stated herein".

2. Appearing for the petitioner, Mr. Bhattacharyya, learned Senior

Counsel, submitted that with full knowledge of the said order, the Principal

Secretary of the Land and Land Reforms Department to the Government of

West Bengal, being the alleged contemnor no. 1, did not take steps for

complying with the order. He said that no demarcation between the vested

land of 1.36 acres and raiyati land of 1.35 acres has been made. Secondly,

whatever purported implementation of the said order has been undertaken,

the same has been at the instance of subordinate officers in the land and

land reforms department whereas the direction was on the Principal

Secretary to implement the order. The Principal Secretary had no business

to delegate his duties under the said order to his subordinate officers. It was

further submitted that there are substantial discrepancies between the

contents of the affidavit affirmed on March 21, 2017, by the Additional

Secretary of the Land and Land Reforms Department, referred to in the

order of which violation is alleged, and the affidavits filed on behalf of the

administration in the present contempt proceedings. Mr. Bhattacharyya

submitted that the order in question has not been complied with by the

alleged contemnors in its true spirit and intent or at all.

3. Learned Senior Standing Counsel appearing on behalf of the alleged

contemnors drew our attention to an affidavit affirmed by the alleged

Contemnor no. 1 on February 21, 2022. In the said affidavit the alleged

Contemnor no. 1 has stated in details the steps taken by him and at his

instance for complying with the order in question. The demarcation of the

plot has taken place. Steps are being taken for demolition of unauthorised

construction and for eviction of unauthorised occupants. Explanation has

also been furnished as to why the compliance has taken longer than it

should have. The primary reason was the outbreak of the Covid pandemic.

4. Our attention has also been drawn to an affidavit affirmed by the

alleged Contemnor no. 2 on April 12, 2022. In paragraphs 12, 15 and 16 of

the said affidavit which was affirmed in response to the affidavit in

opposition filed by the petitioner in respect of the affidavit of compliance, it

is stated as follows:-

"12. With reference to paragraphs 9 and 10 of the said affidavit,

save what are matters of record and save what appears there from,

I deny all allegations contrary thereto and/or inconsistent

therewith. I say that the steps taken towards the demarcation of

land in question has been stated elaborately in paragraph nos. 7-

10 of the affidavit filed earlier and without reiterating the facts

stated therein, I say that in compliance with the solemn order of

the Hon'ble Court, demarcation of the land in question has been

already done by February 2020. I say that the exercise of

demarcation was done on 22nd January, 2020 and 4th February,

2020, in the field after duly serving notices to the concerned

parties from the end of ADM & DL&L.R.O, South 24 Parganas. I

say that Officers of B.L. &L.R.O Kolkata were present on those

days along with the Amins. I say that this process was completed

on 12th February, 2020 and the report for the same was sent to the

District Office accordingly. I say that another re-assessment and

enquiry was additionally done on 3rd November, 2020 with

technical assistance from the DLR&S Office, Survey Section

through Electronic Total Station (ETC). I say that the A.D.M & D.L.

& L.R.O., South 24 Parganas was present on the subject plot along

with the B.L. & L.R.O., SRO-II, R.O. & T.A., and three field staff. I

say that fourteen (14) members of local public were present at that

time, which is on record and sketch map prepared on that basis is

enclosed hereto. A copy of the sketch map prepared to this effect is

enclosed hereto and marked "N".

15. With reference to paragraph nos. 15-17 of the said affidavit,

save what are matters of record and save what appears there from,

I deny all allegations contrary thereto and/or inconsistent

therewith. I say that during physical inspection on 25th March,

2022, it has been found that a boundary wall was under

construction on the vested portion of the land in question and

some portion of the boundary wall were already been made. I say

that however at the time of inspection, nobody related to the

construction work was found there. I say that the officer concerned

was under impression that the boundary wall has been

constructed over the vested portion of the land in question. To

protect the vested land immediately an FIR was lodged with the

concerned police station and a letter was also issued addressed to

the Kolkata Municipal Corporation seeking information, whether

any permission has been granted to any person to make any

construction on the plot in question. A copy of the FIR lodged and

the letter addressed to the Kolkata Municipal Corporation are

collectively annexed hereto and marked "P". I say that thereafter i)

Sudip Kr. Das S/o Lt Sudhanna Chandra das ii) Chandana Das

w/o Sudhanna Chandar Das iii) Mallicka Sarkar w/o Nilay Sarkar

appeared before the BL&LRO Kolkata and submitted that they are

the owner of the land over which the boundary wall have been

constructed. Accordingly, the Officer concerned decided to revisit

the issue for addressing the claim of the above named persons.

After considering all, a fresh sketch map was prepared. The total

area of the playground was reduced by 12 decimals and the total

area of the road was increased by that amount of land. The revised

break-up of the vested area of the said plot of land are stated

below:

a) Leased out portion: 0.33 acre

Break up - Bithika Guha Sazrkar 0.0811 acre

Satyajit guha Sarkar 0.0811 acre

Satyajit Biswas (Pal) 0.0495 acre

Shyamasree Biswas (Basu) 0.095 acre

Subrata Biswas 0.0660 acre

Total 0.3272 acre approximated to .33 acre

b) Leased out portion (Tapan Dutta & Ors.): 0.12 acre

c) Housing Board Portion: 0.14 acre

d) Vacant Portion Play: ground & others 0.27+0.03 acre

e) Road area: 0.47 acre

Total 1.36 acre

The Sketch map and report of BL&LRO

Kolkata are annexed herewith and marked as annexure 'Q'.

16. That the figures stated in para 15 above may kindly be taken

as correct and final. It is humbly submitted that the facts and

figures stated in para 15 are slightly different from the facts and

figures stated in the earlier contempt affidavits so far the area of

road and playground are concerned. Such changes have been

incorporated in view of the circumstances stated at para 15. The

revised sketch map has been prepared on the basis of physical

possession and survey done by the officials. There is no intention

of the alleged contemnors to suppress or mislead the Hon'ble

Court".

5. In view of the aforesaid we are satisfied that the plot in question has

been demarcated in compliance with the order in question.

6. As regards discrepancies in the affidavits filed on behalf of the alleged

contemnors, we are of the view that the same in no manner amount to

violation of the order in question. The facts and figures stated in the earlier

affidavit may have been in-accurate. In the subsequent affidavit, the correct

position has been stated as noted above. In Paragraph 16 of the affidavit of

the alleged Contemnor no. 2 affirmed on April 12, 2022, it has been stated

that the facts and figures stated in Paragraph 15 of the said affidavit are

slightly different from the facts and figures stated in the earlier affidavit filed

in the contempt proceedings so far as the area of the road and play ground

are concerned. However, a revised sketch map has been prepared on the

basis of physical possession and survey done by the officials which revealed

the correct position accurately. We find such explanation to be quite

acceptable.

7. As regards the grievance of the petitioner that the alleged Contemnor

no. 1 being the Principal Secretary of the concerned department, instead of

himself undertaking the exercise directed in the order in question, deputed

subordinate officers to carry out the order, we find such grievance to be

quite unreasonable. It was never the intention of the Court that the

Principal Secretary of the concerned department would go to the locale with

a measuring tape and demarcate the land himself. The obvious intention of

the Court was that the Principal Secretary would be responsible for ensuring

that the directions in the order in question are carried out. We find from the

documents annexed to the affidavits filed by the alleged contemnors that the

Principal Secretary being the alleged Contemnor no. 1, convened meetings

wherein other concerned officers participated and a plan was chalked out for

implementing the order in question. We are unable to accept the petitioner's

contention that the alleged Contemnor no. 1 was himself required to carry

out the exercise detailed in the order in question or that by getting the order

implemented through his subordinate officers, he has violated the order in

question. We also find that steps have been taken to remove illegal

constructions on Government land and to recover such land from

unauthorised occupants thereof. Needless to say, the Government Officers

including the alleged contemnors shall do everything necessary for

protecting and preserving Government land.

8. The jurisdiction of the High Court to punish a person for committing

contempt of Court is a special jurisdiction and quasi-criminal in nature. It

has to be sparingly exercised. Only in cases where it is absolutely clear that

with full knowledge of an order of the Court, a person has acted in wilful

violation thereof, will the Court exercise its jurisdiction to punish that

person for contempt of Court. It is a jurisdiction to be exercised to uphold

the Majesty of the Court and also to punish a person wilfully defying an

order of Court.

9. In the case of Patel Rajnikant Dhulabhai v. Patel Chandrakant

Dhulabhai, (2008) 14 SCC 561 the Hon'ble Apex Court held that

punishing a person for contempt of Court is indeed a drastic step and

normally such action should not be taken. At the same time, however, it is

not only the power but the duty of the Court to uphold and maintain the

dignity of Courts and Majesty of law which may call for such extreme step. If

for proper administration of justice and to ensure due compliance with the

orders passed by a Court, it is required to take a strict view under the

Contempt of Courts Act, it should not hesitate in wielding the potent weapon

of contempt.

10. In the present case, we do not find any wilful disobedience to or

violation of the order dated August 9, 2019 passed by the Division Bench.

From the facts brought on record, we are satisfied that the order has been

substantially complied with. We also accept the explanation for the delay in

complying with the order. We are taking judicial notice of the fact that the

outbreak of the Covid Pandemic disrupted normal functioning of life in not

only our country but all over the world. In our considered opinion this is not

a case where the alleged contemnors should be punished for having

committed contempt of Court.

11. The contempt proceedings are dropped. CPAN 346 of 2020 with IA No.

CAN 1 of 2020 (Old No. CAN 3436 of 2020) in WPA 10804 of 2013 are

accordingly disposed of.

12. There will be no order as to costs.

13. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(Kausik Chanda, J.)                                   (Arijit Banerjee, J.)