Shri Ashoke Ghosh vs Shri Shyamal Roy
2023 Latest Caselaw 6009 Cal

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

                              CRC 5 of 2023
                                    In
                              FA/316/2016
                                    +
                           IA No: CAN/2/2023
                         (This appln not in file)

                           Shri Ashoke Ghosh
                                  -Vs.-
                           Shri Shyamal Roy



Before:             The Hon'ble Justice Arijit Banerjee
                                  &
                    The Hon'ble Justice Apurba Sinha Ray


For the Appellant            : Mr. Milan Ch. Bhattacharya, Adv.
                               Ms. Sulangna Bhattacharya, Adv.


For the Contemnor            : Mr. K.K. Lahiri, Adv.


Judgment On                  : 08.09.2023



Arijit Banerjee, J. :-


1.    This contempt application has been filed for alleged willful violation of

an order dated November 28, 2018, whereby an application being CAN 1270

of 2017 filed in a first appeal being FA 316 of 2016 (Shyamal Ray @ Roy v.
                                          2




Sandip Das & Ors.), was disposed of. The relevant portion of the said order

reads as follows:-


          "The application is disposed of by directing the parties to maintain

          status as on today with regard to the possession, nature and

          character of the suit properties till the disposal of the appeal."

2.    The first appeal is still pending. Accordingly, the order of status quo

extracted above is still in force.

3.    Appearing for the petitioner, Mr. Bhattacharya, learned Senior

Advocate, submitted that with full knowledge of the status quo order, the

respondent started construction on the second floor of the building in

question. He submitted that various complaints were lodged by the

petitioner with the concerned Authorities including the Police, the local

councillor, the local member of the Legislative Assembly and the Kolkata

Municipal Corporation (KMC). Learned Senior Counsel, drew our attention to

copies of such complaints which are annexed to the contempt petition.

4. According to learned Senior Counsel, in spite of such complaints,

none of the authorities took any action excepting KMC which issued a stop

work noticed dated March 21, 2022, to the respondent herein under Section

401 of the KMC Act. This was after the petitioner lodged a written complaint

dated March 19, 2022, with the Executive Engineer (Building), Borough-V,

KMC. Mr. Bhattacharya also drew to our attention certain photographs

annexed to the contempt petition to substantiate the petitioner's contention

that the respondent has made new construction in breach of the status quo

order.

5. Appearing for the respondent, Mr. Lahiri, learned Counsel, submitted

that the aforesaid order of status quo has not been breached in any manner

by the respondent. The respondent is a law abiding citizen having highest

regard for orders of Court. The respondent never had nor now has any

intention of acting in breach of the Court's order.

6. Learned Counsel submitted that the building in question, like all other

buildings on Sashi Bhusan Dey Street, Kolkata, is very old. The building

suffered serious damage during cyclone 'Amphan'. The respondent and his

family reside in that building. It became absolutely essential to do certain

basic repairing works to keep the building in a habitable state. No new

construction work has been undertaken. The repairing works have also been

stopped upon receipt of notice under Section 401 of the KMC Act.

7. Being prima facie of the view that the respondent had made new

construction thereby changing the nature and character of the concerned

suit property, we had issued a Rule on January 30, 2023. Pursuant to

service of the Rule, the respondent personally appeared in Court and filed an

affidavit in response to the rule. The petitioner subsequently filed his

rejoinder to such response.

8. Our prima facie satisfaction that the respondent has acted in violation

of the order of status quo was based on the photographs annexed to the

contempt petition as also the notice under Section 401 of the KMC Act

which describes the unauthorized construction as "RCC slab casting partly

at 2nd floor roof along with new room at 2nd floor. Without sanction". It

appeared to us, what the respondent has done is more than repairing works

and included new construction.

9. In the affidavit filed by the respondent in answer to the Rule, the

respondent has consistently maintained that he has made no new

construction. Only repair works have been done. For such purpose some

masonry materials was stored at the said premises. No new room has been

constructed. The petitioner is in cahoots with the KMC Authorities. This will

appear from the fact that the KMC Authorities acted with unusual

promptitude by issuing stop work notice to the respondent on March 21,

2022, upon receipt of the petitioner's complaint dated March 19, 2022. The

respondent stated that only for the purpose of making some unavoidable

repairs to the severely damaged roof and cracked wall of the kitchen, some

masonry materials had been brought with the consent of all the inhabitants

of the building including the petitioner. The photographs which have been

annexed to the contempt application were allowed to be taken by him and

none of them shows any new construction of any additional room.

10. In other words, the respondent categorically denied having violated the

interim order of status quo. However, in paragraph 13 of his affidavit, the

respondent stated as follows:-

"13. That despite my statements as made hereinabove in support of my genuine and bona-fide cause, I hereby tender my unqualified apology before this Hon'ble Court if it is felt that I should not have

done whatever I have done as stated hereabove. While asserting again that there was no wilful disobedience on my part in respect of the order of the Hon'ble Court, I beg your Lordship pardon having undertaken the repairs inadvertently without seeking permission of this Hon'ble Court on the ground of exigency."

11. In his argument, learned Counsel for the respondent, in effect,

repeated what is stated in the respondent's affidavit filed in response to the

Rule.

12. Mr. Bhattacharya, learned Counsel for the petitioner, submitted that

the photographs and the notice issued under Section 401 of the KMC Act,

1980, leave no room for doubt that the respondent has made new

construction violating the status quo order. He further submitted that the

purported apology tendered in paragraph 13 of the respondent's affidavit

should not be accepted by the Court. It is not an unconditional apology. In

this connection learned Advocate referred to two decisions which are as

follows:-

(i) S. Venkataraman, v. P.V. Singri & Anr., reported at 1997

CRI. L. J. 1840: In this case a Division Bench of the Karnataka

High Court held, inter alia, as follows:-

"Even though it is always open to a party to defend a

contempt proceeding on merits and to show to the Court that

no contempt has been committed or to explain the conduct

away, that such a procedure involves an inherent risk in so

far as if the defence fails, the party cannot in the alternative

seek to tender an apology. This aspect of the matter is of some

importance because when a contempt notice is issued, the

Court is prima facie satisfied that a case of contempt has been

made out and it is a matter of propriety that if a party desires

to tender an apology at the earliest point of time, that it must

be unqualified and unconditional and furthermore, it must be

a genuine apology. It is not permissible under the law to plead

elaborate defences and to thereafter end the reply or the

explanation with a submission that in the event of the Court

holding that contempt has been committed, that an apology is

being tendered. The correct procedure is that the apology be

first tendered and it is certainly open to the party to request

the Court to consider the circumstances or the explanations

or even possible defence so that even if one fails in that

respect, the contempt will not be aggravated."

(ii) Ishwar Naidu & etc. v. Municipal Corporation of Greater Bombay & Ors., reported at 1997 CRI. L. J. 712: The Court

held that unless the apology tendered is found to be unconditional,

the same cannot be accepted.

13. We have given our anxious consideration to the rival contentions of

the parties.

14. Nobody is above the law. Rule of law must prevail at any cost.

Otherwise, there will be anarchy in the society. The power of the High Court

to punish for contempt inheres in the Court. It is an inherent power

recognized by Article 215 of the Constitution and the Contempt of Courts

Act, 1971.

15. When a Court of competent jurisdiction passes an order against a

person, that person is bound to obey the order, unless the order is recalled

by the Court on his prayer or is set aside by a higher forum. The person has

no choice but to act in accordance with the order, however much he may

dislike it. If with knowledge of the order that person violates the order

wilfully, he will be exposed to action under the Contempt of Courts Act.

16. The contempt jurisdiction of the High Court is exercised with two fold

objective. Firstly, to punish the person violating Court's order. Secondly, to

uphold the dignity and majesty of the Court. A person violating a competent

Court's order cannot be allowed to get away lightly. Unless that person is

taken to task, the confidence of the members of the society in the judiciary

will dwindle. As a corollary to punishing the violator of the order, the High

Court will ensure that the concerned person is not permitted to enjoy the

benefit he has derived by acting in violation of Court's order.

17. The High Court always exercises the jurisdiction to punish for

contempt of Court, very carefully and sparingly. It is a quasi-criminal

jurisdiction having severe consequences for a person who is held to be guilty

for contempt of Court. He is liable to suffer imprisonment and also to pay

fine or both. Hence, unless the Court is reasonably certain that the alleged

contemnor has willfully violated an order, the jurisdiction to punish for

contempt is not exercised. Any benefit of doubt is ordinarily given to the

alleged contemnor. However, when the Court is reasonably sure that the act

complained of amounts to willful violation of Court's order on the part of the

alleged contemnor, it is imperative that the alleged contemnor is held to be

guilty of contempt and punished accordingly. This is necessary to instill

confidence in the judiciary, in the minds of the members of the public and to

send the message to people at large that a citizen cannot flout Court's order

with impunity.

18. In the present case we find that Kolkata Municipal Corporation, the

statutory civic authority entrusted with the duty and function to ensure that

unauthorized constructions are not made by reckless or unscrupulous

builders, has issued a stop work notice under Section 401 of the KMC Act,

to the respondent. The unauthorized construction is described in such

notice as "RCC slab casting partly at 2 nd floor roof along with new room at 2 nd

floor. Without sanction". This, along with the photographs annexed to the

contempt petition, clearly shows new construction. From the annexures to

the respondent's affidavit filed in response to the Rule, which are copies of

letters written by the respondent to KMC Authorities as well as the Police, in

March 20, 2022, it appears that the respondent sought permission from the

civic Authorities to construct a washroom. This was with full knowledge of

the order of status quo.

19. Furthermore, the respondent does not dispute the authenticity of the

photographs annexed to the contempt petition. However, the respondent

maintains that he has only done repairing work and no new construction.

The photographs belie such stand.

20. We are therefore reasonably ascertain that the respondent has made

new construction, albeit not of a major proportion, but in willful violation of

the interim order of status quo. We hold the respondent guilty of contempt of

Court.

21. The purported apology tendered in paragraph 13 of the respondent's

affidavits, can hardly be said to be an unconditional apology. It does not

reflect to any extent that the respondent is sorry or contrite for having

violated this Court's order. The respondent has consistently tried to justify

his action and only as the last resort has tendered apology keeping in mind

that his attempted justification may not be acceptable to the Court. We are

not inclined to accept the so-called apology tendered by the respondent.

22. However, keeping in view the magnitude of the new construction and

the nature and extent of violation of this Court's order, we take a lenient

approach in so far as imposing punishment on the respondent is concern.

We impose a fine of rupees one thousand on the respondent for having

committed contempt of Court. The fine is to be paid within a week from date,

failing which, the respondent will stand to suffer simple imprisonment for 7

days.

23. Since, apart from the construction in question having been made in

breach of the status quo order, such construction also appears to be

unauthorized as is indicated in KMC's notice under Section 401 of the KMC

Act, KMC would be at liberty to take necessary steps in respect of such

alleged unauthorized construction, in accordance with law, observing the

principles of natural justice. With the aforesaid directions, the contempt

application practically stands disposed of.

24. However, this matter will be listed again one week hence under the

heading "To be mentioned" for ascertaining whether or not the respondent

has paid the fine and for further consequential orders, if necessary.

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

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(APURBA SINHA RAY, J.)                            (ARIJIT BANERJEE, J.)