Calcutta High Court (Appellete Side)
Sri Paramananda Mukherjee vs Kaberi Das & Anr. ...Contemnors on 6 September, 2023
IN THE HIGH COURT AT CALCUTTA
SPECIAL CIVIL JURISDICTION
(Appellate Side)
Present: THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
W.P.C.R.C 89 of 2018
With
CAN 1 of 2023
In
WPA 25296 of 2014
Reserved on : 28.08.2023
Pronounced on: 06.09.2023
Sri Paramananda Mukherjee
...Applicant
-Vs-
Kaberi Das & Anr. ...Contemnors
Present:-
Mr. Sankha Subhra Ray
... for the Applicant
Mr. Tapash Kr. Dey,
Ms. Saswati Ghosh Sinha
....for the Contemnors
Rajarshi Bharadwaj, J:
1. The instant contempt application has been preferred against the alleged
contemnor for violation of order dated 06.07.2015 passed by the Learned
Single Judge in W.P No. 25296 (W) of 2014 (Paramananda Mukherjee versus
The State of West Bengal & Ors).
JWPCRC 89 of 2018- -2- - -
2. The applicant is one Paramananda Mukherjee and the alleged
contemnor is the Prodhan, Garal Gacha Gram Panchayat, Hooghly. The two
plots of land in question are Plot No. C-3 in Dag No. 783, Khatian No LR 810,
JL No. 90 measuring about 1 cottah 8 chittacks under Mouza Garal Gacha
Gram Panchayat, Hooghly belonging to the applicant and Plot No. C-2 , Dag
No. 783, Khatian Nos 2118 and 2119 under Mouza Garal Gacha Gram
Panchayat, Hooghly belonging to one Sri Krishnendu Banerjee and one Smt
Putul Banerjee herein respondent Nos. 6 and 7 respectively where a
residential house along with pakka boundary wall surrounding the building
has been constructed.
3. The genesis of the case is that the applicant moved a writ petition
bearing W.P No. 25296 (W) of 2014 which the Learned Single Judge was
pleased to dispose of by solemn order dated 06.07.2015. The operative part of
the order is extracted hereinbelow for convenience:
"The Pradhan of the concerned Gram Panchayet to take necessary follow-up
action strictly in accordance with law and the procedure laid down therefor and
shall conclude the same as per the statutory provision within a period of eight
weeks from the date of communication of the order."
4. As there was no necessary follow up action by the alleged contemnor,
the applicant proceeded to file contempt application being CPAN 1857 of 2015
alleging intentional and wilful violation of the order dated 06.07.2015.
5. The Learned Counsel for the applicant presents that the contemnor
acted in wilful, deliberate and contumacious violation of the order dated
06.07.2015 by not taking appropriate steps for knocking down the
unauthorised pakka boundary wall that encroaches his plot of land. Such
boundary wall was constructed by respondent Nos. 6 and 7 after purchasing
the land without taking legal permission from the Garal Gacha Gram
Panchayat.
JWPCRC 89 of 2018- -3- - -
6. It is further submitted that the contemnor vide letter dated 05.06.2014
admitted to the applicant that "As per verbal discussion we can know from him
that Sri Krishnendu Banerjee purchased old residential building. So he has no
sanction plan in his own custody. But he has constructed new boundary wall
after purchase residential house without taken legal permission from this Gram
Panchayat". Thus, the contemnor should have demolished the same as per the
provision of Section 23 of the West Bengal Panchayat Act as well as Rule 19(3)
of the West Bengal Gram Panchayat Administration Rule, 2004.
7. Instead of taking suitable measures to demolish the structure as
expressed in the solemn order dated 06.07.2015, the contemnor made an
endeavour to intentionally misinterpret the order by issuing notices for a
hearing on 16.06.2023 to effect a compromise between the applicant and
respondent Nos. 6 and 7. The contemnor acting as mediator in the present
case has acted without jurisdiction.
8. The Learned Counsel for the alleged contemnor submits that there has
been no error in understanding the true spirit behind the order/judgment
dated 06.07.2015 passed by the Hon'ble Court and that no wilful or deliberate
disobedience of the order/judgment was committed by him. Due to pending
civil proceedings being Title Suit No. 522 of 2015 before the Learned 1st Civil
Judge, Junior Division, Serampore, subsisting order of injunction being M.P
No. 199 of 2013 remaining in force at the relevant point of time and another
suit filed by the applicant subsequently dismissed for non-prosecution, no
steps were taken to give effect to the order dated 06.07.2015.
9. It is respectfully stated that the said boundary wall had already been
constructed before the plot was purchased by respondent Nos. 6 and 7 in
2007 by the erstwhile landowner on the basis of a proper sanction plan. The
applicant who partly purchased the adjacent plot of land in 2009 failed to
prove the illegality of the construction by producing relevant evidences and
JWPCRC 89 of 2018- -4- - -
admissions as he was absent on 16.06.2023 which was fixed for personal
hearing despite service of notice on 12.06.2023.
10. The pakka boundary wall built for residential and safety purposes and
the decision to treat it as legal and valid has been arrived at after careful on
spot inspection by the alleged contemnor. As no old records of permission and
sanction plan for construction of the wall in favour of respondent Nos. 6 and 7
have been found despite thorough search by officials, a personal hearing was
preferred wherein documents and submissions provided by respondent Nos. 6
and 7 were scrutinised.
11. Heard learned counsel for the respective parties and on perusal of the
records this court is of the view that in exercise of the contempt jurisdiction a
different view on the merits of the case cannot be taken. The court is only
concerned with the wilful or deliberate noncompliance of the directions issued
in the original judgment and it would not be permissible for the court to issue
any supplementary or incidental directions which are not to be found in the
original judgment and order. In the instant case, the omission to appear on
the date fixed for hearing to decide the validity of the structure indicate
latches on part of the applicant.
12. It is a settled principle of law that while dealing with an application for
contempt, the court is concerned with the question whether the earlier
decision which has received its finality had been complied with or not. The
order of the Court of which a breach is complained of, has to be read and
interpreted as it is and not as it should be. If an order is capable of more than
one interpretation giving rise to variety of consequences, non-compliance with
the same cannot be held to be wilful disobedience of the order so as to make
out a case of contempt entailing the serious consequence including imposition
of punishment.
JWPCRC 89 of 2018- -5- - -
13. The Hon'ble Supreme Court in Ex. Chief Executive Officer & Ors. Vs.
Assam Roller Flour Mills Association & Anr. reported in (2022) 1 SCC 101
held that: -
"8...The Contempt of Courts Act, 1971 explains a civil contempt to mean a wilful
disobedience of a decision of the Court. Therefore, what is relevant is the "wilful"
disobedience. Knowledge acquires substantial importance qua a contempt
order.... When two views are possible, the element of wilfulness vanishes as it
involves a mental element. It is a deliberate, conscious and intentional act. What
is required is a proof beyond reasonable doubt since the proceedings are quasi-
criminal in nature. Similarly, when a distinct mechanism is provided and that
too, in the same judgment alleged to have been violated, a party has to exhaust
the same before approaching the court in exercise of its jurisdiction under the
Contempt of Courts Act, 1971. It is well open to the said party to contend that
the benefit of the order passed has not been actually given, through separate
proceedings while seeking appropriate relief but certainly not by way of a
contempt proceeding. While dealing with a contempt petition, the Court is not
expected to conduct a roving inquiry and go beyond the very judgment which
was allegedly violated. The said principle has to be applied with more vigour
when disputed questions of facts are involved and they were raised earlier but
consciously not dealt with by creating a specific forum to decide the original
proceedings."
14. In the case of Director of Education, Uttaranchal and others vs. Ved
Prakash Joshi and others reported in (2005) 6 SCC 98, the Hon'ble Supreme
Court made the following observation:
" 7......The court exercising contempt jurisdiction cannot take upon itself power
to decide the original proceedings in a manner not dealt with by
the court passing the judgment or order. Right or wrong the order has to be
obeyed. Flouting an order of the court would render the party liable
JWPCRC 89 of 2018- -6- - -
for contempt. While dealing with an application for contempt, the court cannot
traverse beyond the order, non-compliance of which is alleged. In other words, it
cannot say what should not have been done or what should have been done. It
cannot traverse beyond the order. It cannot test correctness or otherwise of the
order or give additional directions or delete any direction. That would be
exercising review jurisdiction while dealing with an application for initiation
of contempt proceedings. The same would be impermissible and indefensible."
In the instant case, the applicant is not aggrieved by the direction issued in
the judgment or order but instead is aggrieved by a separate cause of action.
The order dated 06.07.2015 does not prescribe any definite measure to be
taken, the choice of personal hearing adopted by the alleged contemnor to
reach a settlement forming basis for the contempt constitutes to be a separate
legal claim.
15. In such view, the contempt application being WPCRC No. 89 of 2018
would not be maintainable as no case of contempt has been made out. Hence,
the contempt application lacks merit and the same is dismissed, all pending
applications are accordingly disposed of.
16. There will be no order as to costs.
17. Urgent certified copies, if applied for, be issued by the department on
compliance of all requisite formalities.
(RAJARSHI BHARADWAJ, J)
Kolkata
06 .09.2023
PA (BS)
