Gujarat High Court
Lh Of Sarojben Kiritbhai Shah vs Amitaben Hemantbhai Jariwala, ... on 25 February, 2025
Author: A. S. Supehia
Bench: A.S. Supehia, Gita Gopi
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Reserved On : 18/02/2025
Pronounced On : 25/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 1829 of
2024
In R/LETTERS PATENT APPEAL NO. 1075 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 15801 of 2024
In
R/LETTERS PATENT APPEAL NO. 1075 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
√
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LH OF SAROJBEN KIRITBHAI SHAH & ORS.
Versus
AMITABEN HEMANTBHAI JARIWALA, CHAIRMAN OF SWAMI
VIVEKANAND NAGAR COOPERATIVE HOUSING SOC & ORS.
=============================================
Appearance:
MS MEGHA JANI, ADVOCATE for
MR MEET THAKKAR, ADVOCATE for the Applicant(s) No. 1,1.1,1.2
MR SHALIN MEHTA, SENIOR ADVOCATE with
MS VISHWA G PATEL(8610) for the Opponent(s) No. 1,2
MR JAL S. UNWALA, SENIOR ADVOCATE with
MR. RAHIL P JAIN(7305) for the Opponent(s) No. 3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present captioned applications are filed by the
applicants praying for initiating the contempt proceedings,
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both civil as well as criminal under Sections 2(b) and 2(c) of
the Contempt of Courts Act, 1971, against the respondents.
2. The proceedings emanate from the judgment and order
dated 21.06.2022 passed by the learned Single Judge in
Special Civil Application No.8530 of 2019 and the judgment
and order dated 23.01.2023 passed by the Division Bench of
this Court in Letters Patent Appeal No.1075 of 2022, which was
filed against the aforesaid judgment and order dated
21.06.2022 passed by the learned Single Judge in SCA No.8530
of 2019.
3. It is the case of the applicants, who are the legal heirs of
Sarojben Kiritbhai Shah (original respondent No.9.1), that the
respondents - Developer and the Society have committed civil
contempt by not following their commitment of paying
monitory benefits to the applicants arising from the
Memorandum of Understanding (in short, "the MoU") dated
02.04.2019, and criminal contempt by obtaining the orders
from this court through misleading and false inducement.
4. Learned advocate Ms.Megha Jani, assisted by the learned
advocate Mr.Meet Thakkar, appearing for the applicants has
invited our attention to the various abstracts / averments of
the captioned Special Civil Application and also the
observations made by the learned Single Judge and the
Division Bench, in order to prove inducement of the
respondents. It is submitted that after the applicants have
handed over their property i.e. the flat in question to the
respondents, pursuant to the observations and directions
issued by the learned Single Judge and as confirmed by the
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Division Bench, the respondents have thereafter demolished
their flat and have not extended the monitory benefits as per
the MoU. It is submitted by her that as on today, the re-
development work is going-on in full swing. It is submitted that
the flat of the deceased owner was of 58 sq. yards and as per
the MoU, the members, who had 58 sq. yards are to be
provided a flat of 99 sq. yards and till re-occupation is possible,
a rent of Rs.15,000/- per month and an additional cash royalty
of Rs.12,00,000/- is to be paid by the Developer.
5. Learned advocate Ms.Jani, has submitted that the
applicants are singled out by the respondent - Society and
they are not paid the amount, as mentioned in paragraph
No.11 of the present application, only for the reason that the
respondent - Society, after convening the Special General
Meeting on 30.04.2023 has decided that because of the
applicants and one Mr.Kaushik B. Patel, who opposed the writ
petition, and the re-development got delayed and since the
Society has incurred expenditure of Rs.52,00,000/- to pursue
the litigation, such amount is required to be recovered from
them. She has further submitted that the litigation on behalf of
the Society is funded by the developer, and in case they intend
to recover the amount, they have to institute a civil suit, and it
cannot be done by resorting to Clause 18 of the MoU.
6. While referring to the pleadings on record and the
contentions recorded by the learned Single Judge and the
Division Bench of this Court, it is contended that this Court has
allowed the writ petition primarily on two grounds i.e. (i) on the
assurances and the representations made by the Society,
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assuring that the development is for the benefit of all,
including the applicants, and such benefit would be available
to all, including the present applicants and the members of the
Society; and (ii) that the writ petition was not filed for eviction,
but it was for temporary shifting and the contesting
respondents i.e. the flat owners would be allotted the flat after
they are constructed. It is, thus, submitted that the
respondents have obtained the orders from this Court by giving
false assurances and by inducing the Court to believe the
same. She has submitted that in case, the Society or the
Developer had clarified before this Court that dissenting
members will not be given any benefit of re-development then,
in all probabilities, the outcome of the writ petition would have
been different. Thus, it is submitted that pursuant to the false
assertion and inducement at the behest of the Developer and
the Society, this Court had passed the orders of permitting the
re-development.
7. Learned advocate Ms.Jani, has further submitted that the
applicants had filed R/Misc. Civil Application (for Recall) No.17
of 2004 in R/Letters Patent Appeal No.1075 of 2022 for
recalling of the order, however the same was withdrawn with a
view to take recourse to avail appropriate remedy, which was
granted by this Court vide order dated 12.02.2024, and hence,
the present applications for initiation of contempt proceedings
both civil and criminal have been filed. Thus, it is urged that in
wake of the aforesaid facts and since the Court was
misdirected, appropriate proceedings may be initiated.
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8. While placing reliance on the judgment of the Supreme
Court in the case of Balwantbhai Somabhai Bhandari vs. Hiralal
Somabhai Contractor, 2023 SCC Online SC 1139, she has
submitted that the undertaking or promise, which is given at
the Bar, on instructions from the clients; the willful breach of
such assurance before this Court amounts to "civil contempt"
which is defined under Section 2(b) of the Contempt of Courts
Act, 1971.
9. Reliance is also placed by the learned advocate Ms.Jani,
on the recent judgment of the Supreme Court in the case of
Celir LLP vs. Sumati Prasad Bafna & Ors., [decision dated
13.12.2024 passed in Contempt Petition (C) Nos.158-159 of
2024 in Civil Appeal Nos.5542-5543 of 2023], 2024 SCC Online
SC 3727, and has submitted that even if the parties have not
filed any undertaking before this Court, but if the Court is
induced to sanction a particular course of action or inaction, on
such representation made by the party, and ultimately, when
the Court finds that the party never intended to act on the said
representation or such representation was false, the party
would be guilty of committing the Contempt of Court. It is
submitted that in the present case also, this Court has been
induced by the respondents to take a particular course of re-
development of the Society and on the assurance given by the
Developer and members of the Society to extend the monitory
benefit and since such course has not been adopted by them,
it would amount to "criminal contempt" defined under Section
2(c) of the Contempt of Courts Act, 1971. Thus, it is urged that
the respondents may be prosecuted for civil as well as criminal
contempt.
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10. Vehemently opposing the submissions advanced by the
learned advocate Ms.Jani, appearing for the applicants, learned
Senior Advocate Mr.Shalin Mehta assisted by the learned
advocate Ms.Vishwa G. Patel, appearing for the respondent
Nos.1 and 2, at the outset, has submitted that the present
applications seeking initiation of contempt proceedings both
civil and criminal are not maintainable as neither there is any
breach of undertaking nor the respondents have deviated from
their stand, which was taken before the learned Single Judge
as well as before the Division Bench.
11. At the outset, learned Senior Advocate Mr.Mehta, has
pointed out the application being Misc. Civil Application (for
Recall) No.17 of 2024, which has been filed by the applicants
to recall the judgment and order passed by the Division Bench
in Letters Patent Appeal No.1075 of 2022. While referring to
the prayers made in the said application, it is submitted that in
fact, the applicants have prayed for a direction on the
respondents - Developer and the Society to act in accordance
with the MoU dated 02.04.2019 and to grant all monitory
benefits. It is submitted that the said application was
withdrawn with a view to avail alternative remedy and was
disposed of by the order dated 12.02.2024.
12. Learned Senior Advocate Mr.Mehta, has also referred to
the communication dated 01.02.2024 written by the applicant-
Kirtibhai M. Shah and has submitted that they are ready and
willing to sign the MoU without Clause 28 being binding on
them and without prejudice to their right to challenge any
recovery from them. It is submitted that as on today, the
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applicants have not signed the MoU and hence, they cannot
claim the monitory benefits arising from the MoU. While
referring to the directions issued by the learned Single Judge,
learned Senior Advocate Mr.Mehta, has submitted that in fact,
the directions were issued to the present applicants - original
respondent No.9.1 to handover the possession of their flat,
which they did and accordingly, the flats were demolished for
re-development. He has submitted that as assured by the
respondents, the name of the applicants are also entered in
the list of ownership, as required under Rule 19(2) of the
Gujarat Ownership Flats (Amendment) Rules, 2019, before the
Gujarat Real Estate Regulatory Authority (the RERA). He has
referred to the RERA Bank A/c. and has submitted that the
names of the applicants also figure in the same and as and
when, the flats are ready, the same shall be allotted to the
applicants only after they signed the MoU. It is submitted that
at this stage, the applicants cannot raise objection to Clause
28 of the MoU, as the same is binding upon them. He has
submitted that all the members have singed such MoU and
unless the applicants agree to sign the MoU, the benefits
arising from the MoU cannot be extended to them.
13. Learned Senior Advocate Mr.Mehta has submitted that all
the consenting members of the Society and the dissenting
members of the Society, who turned around and gave their
consent, have time and again supported the re-development of
the Society by signing various documents like affidavit,
consent letters, declaration, MoU etc., as may have been
requisitioned by the Society and / or Developer as a part of the
re-development process and only after the MoU is signed, the
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members have to get their title and ownership proof of their
respective flats inspected and they are required to follow the
legitimate title clearance process as well, clearing of any dues
on their flats of Bank, AMC etc. It is submitted that in the
present case, the applicants have miserably failed from
entering into any contract with the Society and / or the
Developer for reaping the benefits from such a scheme of re-
development and hence, they cannot compel the respondents
to face the contempt proceedings.
14. In support of his submissions, learned Senior Advocate
Mr.Mehta, has placed reliance on the judgment of the Supreme
Court in the case of The Bengal Secretariat Cooperative Land
Mortgage Bank and Housing Society Ltd., vs. Sri Aloke Kumar &
Anr., 2022 LiveLaw (SC) 849 and has submitted that as per the
decision of the Supreme Court, the decision of the General
Body of the Society to process the re-development of its
property, cannot be curtailed and it is not open to the Court to
sit over the commercial wisdom of the General Body as an
Appellate Authority. It is submitted that the Supreme Court has
held that merely because one single member in minority
disapproves of the decision, that cannot be the basis to delay /
negate the decision of the General Body, unless it is shown
that the decision was the product of fraud or misrepresentation
or was opposed to some statutory prohibition. It is finally
submitted that the applicants have been creating hurdles in
the development projects right from the inception, and even
after they have lost in the proceedings challenging the re-
development project, the present application is filed for
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harassing them. Hence, it is urged that a cost of Rs.1,00,000/-
may be imposed on them.
15. We have heard the learned advocates appearing for the
respective parties at length. We have also perused the
documents on record.
16. We are confronted with the present applications levelling
atypical allegation of committing contempt of court by the
respondents i.e. the Developer and the Society. The present
applicants, are the legal heirs of the deceased Sarojben
Kiritbhai Shah, who owned Flat No.K/1 in block of Apartments
known as "Swami Vivekanand Nagar Cooperative Housing
Society, Jodhpur, Ahmedabad.
17. The case of the applicants in nutshell is that the
respondents - Developer and the office bearers of the Society
are not extending the monitory benefits arising from the MoU
dated 02.04.2019 by singling them out. It is also their case
that they have obtained the orders passed by this Court, both
from the learned Single Judge and the Division Bench, by false
assertion and inducement. Thus, it is their case that the first
action would fall under the provisions of Section 2(b) of the
Contempt of the Courts Act, 1971, which defines "civil
contempt" and the second act of inducing the Court and
obtaining the orders, would fall under Section 2(c) of the
Contempt of the Courts Act, 1971, which defines "criminal
contempt."
18. The entire issue of re-development of the aforesaid
apartment was subject matter of consideration in the
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captioned Special Civil Application No.8530 of 2019. The
present applicants were the original private respondent
Nos.9.1 and 9.2. After hearing all the respective parties, the
learned Single Judge by the CAV judgment dated 21.06.2022
allowed the writ petition filed by the petitioner - Society. The
cause for filing the writ petition by the petitioner - Society was
the objection taken by the respective private respondents
against the development. The learned Single Judge, after
examining the provisions of the Gujarat Ownership Flats Act,
1973, ultimately, held thus against the present applicants :-
"37. In the aforesaid backdrop, let us examine the
prejudice, if any caused to the private respondents
or that they are deprived of any rights or their
property rights is violated. If one is to assess, in
the opinion of this Court, facilities and amenities
which would be provided by the respondent no.4 are
not, in any way, disadvantageous. Perceptibly, 60
units of flats are admeasuring 94 sq.yrds. and 18
units of 58 sq.yrds. Now, the area which is proposed
to be offered against 94 sq.yrds. would be 158
sq.yrds., i.e. 68% more and 99 sq.yrds. for the units
of 58 sq.yrds. that would also be 68% more. In
addition to this, the members would be getting Rs.17
lacs and Rs.12 lacs royalty and rent of Rs.20,000/-
and Rs.15,000/- per month respectively, incorporating
other benefits. Considering the advantages, benefits
and amenities, that will be provided to the members
of the petitioner - society, including the private
respondents, this Court is of the firm opinion that
neither of the rights of the private respondents is
violated. In fact, the rights of the members have
been taken care of, to the fullest extent. 38. So far
as the private respondent no.9.1 is concerned, it has
been declared before this Court that he is not averse
to the redevelopment; however, he is aggrieved by the
pre-determined and biased manner in which, the
allotment or redevelopment work has been entertained.
As has been rightly pointed out by Mr Shalin Mehta,
learned Senior Counsel that the respondent no.9.1 has
been changing his stand and possibly, only with a
view to creating impediment in the redevelopment
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work. Possibly, for the reason that the respondent
no.9.1 is using his residential premises also for
commercial purpose which has led to filing of the
lavad suit against him before the learned Board of
Nominees. 39. Moreover, the private respondent no.9.1
has raised the contention that the Rules mandate the
appointment of the project management
consultant/architect which is the first step towards
the redevelopment process for buildings, fulfilling
the conditions for redevelopment project/work,
followed by preparation of the project report by the
project management consultant etc. It is also the
stand of the respondent no.9.1 that the proceedings
cannot be validated post facto to claim adherence to
the rules more particularly, when the society's
application for redevelopment with the Corporation is
made after the notification of the said Rules. The
contention would not be in a right earnest for the
following reasons.
xxxx....
55. In view of the aforementioned discussion, the
petition, deserves to be allowed and is accordingly
allowed. The petitioner-society is permitted to act
as per the development permission dated 5.3.2022 and
the private respondents are directed to handover the
possession of the respective flats for the purpose of
redevelopment within a period of eight weeks from the
date of the receipt of copy of this CAV judgment.
Rule is made absolute to the aforesaid extent. No
order as to costs."
19. The aforesaid judgment and order of the learned Single
Judge was further assailed before the Division Bench by filing
Letters Patent Appeal No.1075 of 2022 by the present
applicants. By the judgment dated 23.01.2023, the Division
Bench rejected the Letters Patent Appeal, by recording thus : -
"52. At the outset, it requires to be noticed that by
calling upon the occupant (respondent No.9) to vacate
the premises by issuance of writ of mandamus, there
is no order of eviction is passed. The resolution of
the general body of members passed by the majority
(now all the members having consented for
redevelopment except respondent No.9) would indicate
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that during the period of redevelopment taking place,
all the occupants of the existing property who are in
occupation of their respective flats would be
provided alternate accommodation in a rented premises
and rent of the such premises would also be paid by
the developer himself. Thus, there is no eviction or
dispossession. Eviction in terms of the prevalent
rent laws or ejectment of occupant from the suit
property as contemplated under the Transfer of
Property Act would mean to dispossess a person in
occupation of a premises under the authority of law
by putting an end to such right. In other words,
eviction means right to reside or occupy ceasing or
such right getting terminated by operation of law. In
the instant case, respondent No.9 is neither
dispossessed nor evicted but has only been directed
to be shifted to an alternate premises which she/they
would continue to reside till redevelopment takes
place. Temporary shifting of residents of a premises
in redevelopment project would not amount to
dispossession or eviction as sought to be contended.
In fact, appellant is not deprived of the property
viz. residential accommodation at all.
53. It would not be out of context also to refer to
the fact that appellant has not challenged the
development permission dated 5.3.2021 (Raja Chitthi).
In fact, she has given her consent for redevelopment
and has affixed her signature also to the resolution
of the general body of the members dated 16.6.2019
(Annexure-C at Sr.No.18). In the special general
meeting held on 7.10.2018 which was specifically
convened for the purpose of discussing the
redevelopment project, appellant herein participated
in the said meeting and has affixed her signature to
the minutes of the meeting at Sr.No.23, whereunder
the issues relating to appointment of legal adviser
for the redevelopment project, finalising the builder
from the offers received for redevelopment and other
incidental works came to be discussed and resolution
passed thereon. xxx.....
54. Having affixed their signatures to the
resolutions and having not questioned the resolutions
so passed by taking appropriate steps, respondent
Nos.5 to 8 herein as well as the appellant are
estopped from contending contrary to the same,
inasmuch as they are bound by resolutions for which
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they have affixed their signatures. Hence, we are of
the considered view that no prejudice is caused to
the appellant or similarly placed persons as
discussed in detail by the learned Single Judge vide
paragraph 37. In that view of the matter, we are
unable to accept the contentions raised by learned
Senior Advocate appearing for the appellant."
20. Thus, the Division Bench has categorically held that the
appellants are estopped from contending contrary to the
resolution, which they had signed and they are bound by the
resolution, as they had affixed their signatures on it. Such
resolution was passed by the Body of the members by the
majority and has recorded in paragraph No.52 of the said
judgment that all the members have consented for re-
development, except the respondent No.9. Thereafter, the
applicants filed an application seeking recall of the judgment of
the Division Bench being Misc. Civil Application No.17 of 2024,
with following main prayer(s) : -
"16. (A) That this Hon'ble Court be pleased to
recall the order dated 23.01.2022 passed by this
Hon'ble Court in Letters Patent Appeal No.1075 of
2022 confirming judgment and order dated 21.06.2022
passed in Special Civil Application No.8530 of 2023
Alternatively ,
The Respondent No.4 - Excel Life Space LLP and
Respondent No.1 - Swami Vivekanand Nagar Cooperative
Housing Society be directed to act in accordance with
the MoU dated 02.04.2019 and to grant all monitory
and other benefits mentioned therein to the
applicants along with interest."
21. The review application was dismissed as withdrawn by
the order dated 12.02.2024 by the learned advocate appearing
for the applications, on the instructions of the applicants
(appellants) to avail appropriate remedy available under the
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law. Thereafter, it appears that the present applications
seeking initiation of contempt proceedings have been filed on
the grounds, as mentioned hereinabove.
22. It is very curious to note that in the recall application,
the applicants have prayed for a direction on the housing
Society to act in accordance with the MoU dated 02.04.2019
and to grant all monitory benefits, whereas it is an established
fact that the applicants have not signed the MoU dated
02.04.2019. The applicants have projected themselves as
destitute victims due to the orders passed by this Court and
the inaction of the respondents in paying the monetary benefit
arising from the MoU.
23. It is not in dispute that as on today, the flats are still
under construction and the name of the applicant no.1 is also
registered before the RERA and hence, as and when such flats
are completed, they would be handed over to the respective
flat after completion of all formalities. It is also not in dispute
that all the members, who have signed the MoU, are extended
the benefits as agreed upon by the flat owners and the
Developer.
24. The present applicants have not signed the MoU and they
have objection to Clause 28 of the MoU. The translated Clause
28 of the MoU, reads as under : -
"28. As per this Memorandum of Understanding, for
the purpose of executing the redevelopment
agreement, all members of the society have given
their consent by signing the agreement. Even so, if
any member raises any objection, dispute, or claim
during the ongoing redevelopment project, all such
objections, disputes, or claims shall be resolved by
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the members of the society (i.e. those raising the
issue) at their own expense, with mutual
cooperation. Such objections, disputes, or claims
shall be considered illegal and null and void.
Moreover, if the other party (i.e. the developer or
other society members) incurs financial losses due
to such actions, the members raising the objection
shall be responsible for compensating those losses.
In such circumstances, the deadline agreed-upon
shall be automatically extended."
25. As per the Clause 28, it is agreed upon that any member,
who objects to the re-development scheme and initiates any
legal proceedings, the same shall be declared as "illegal" and
any financial loss, incurred due to such objection raised by the
member of the society, then such loss has to be compensated
by him or her. It is asserted before us that the present
applicants are not bound by such condition of the MoU and
hence, they cannot be compelled to pay the litigation costs. On
one hand in the recall application, they have prayed before this
Court that the Society may be directed to act in accordance
with the MoU dated 02.04.2019 and simultaneously, they are
not signing the MoU and have objected Clause 28. This internal
conflict between the parties cannot be delved into by this
Court in the present proceedings.
26. It is contended before us by the learned advocate
Ms.Jani, that the aforesaid orders were obtained on
misrepresentation and inducement of the respondents as in
case, it was clarified that the dissenting members will not be
extended any benefits arising from the MoU, then the outcome
of the writ petition as well as Letters Patent Appeal would have
been different. This submission is not only ill-conceived, but
also misleading and is in direct conflict to the judgments and
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orders passed by this Court and is also contumacious. The
applicants have availed all the legal remedies, and have failed
before this Court. An attempt is also made to get the order of
the Division Bench recalled on the same ground, but they have
failed.
27. We do not even remotely find that the learned Single
Judge or the Division Bench have passed the order(s) on the
inducement of the respondents. All the contentions, which
were raised by the flat owners, more particularly by the
applicants have been taken care of and have been answered
accordingly. The legality and validity of the re-development
scheme is already examined by this Court; both by the learned
Single Judge and the Division Bench, and the objections raised
by the present applicants against the re-development scheme,
has been negatived. It is not the case of the applicants that the
respondents have backed-off or resiled from the offering the
flat and monetary benefits as per the MoU even after the
members have put their signatures. The applicants though
have shown their willingness to sign the MoU and also want the
benefits to be extended but by ignoring Clause No.28. It is
impermissible for us to examine this issue in the present
contempt proceedings. The Supreme Court in the case of
Prithawi Ram vs. State of Jharkhand, 2004 (7) S.C.C. 261 has
elucidated the powers of the Court while dealing contempt
proceedings. It is held thus:
"5. While dealing with an application for contempt,
the Court is really concerned with the question
whether the earlier decision which has received its
finality had been complied with or not. It would not
be permissible for a Court to examine the correct-
ness of the earlier decision which had not been as-
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sailed and to take the view different than what was
taken in the earlier decision. A similar view was
taken in KG. Derasari and Anr. V. Union of India &
Ors. (2001(10) SCC 496). The Court exercising con-
tempt jurisdiction is primarily concerned with the
question of contumacious conduct of the party who is
alleged to have committed default in complying with
the directions in the judgment or order. If there
was no ambiguity or indefiniteness in the order, it
is for the concerned party to approach the higher
Court if according to him the same is not legally
tenable. Such a question has necessarily to be agi-
tated before the higher Court. 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 Judgement or or-
der. Though strong reliance was placed by learned
counsel for the State of Bihar on a three-Judge
Bench decision in Niaz Mohammad and Ors. V/s. State
of Haryana & Ors. (1994(6) SCC 352), we find that
the same has no application to the facts of the
present case. In that case the question arose about
the impossibility to obey the order. If that was the
stand of the State, the least it could have done was
to assail correctness of the Judgement before the
higher Court. State took diametrically opposite
stands before this Court. One was that there was no
specific direction to do anything in particular and,
second was what was required to be done has been
done. If what was to be done has been done, it can-
not certainly be said that there was impossibility
to carry out the orders. In any event, the High
Court has not recorded a finding that the direction
given earlier was impossible to be carried out or
that the direction given has been complied with.
6. On the question of impossibility to carry out
the direction, the views expressed in T.R. Dhanan-
jaya V/s. J. Vasudevan (1995(5) SCC 619) need to be
noted. It was held that when the claim inter se had
been adjudicated and had attained finality, it is
not open to the respondent to go behind the orders
and truncate the effect thereof by hovering over the
rules to get round the result, to legitimize legal
alibi to circumvent the order passed by a Court.
7. In Mohd. Iqbal Khanday V/s. Abdul Majid Rather
(AIR 1994 SC 2252), it was held that if a party is
aggrieved by the order, he should take prompt steps
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to invoke appellate proceedings and cannot ignore
the order and plead about the difficulties of imple-
mentation at the time contempt proceedings are ini-
tiated.
8. If any party concerned is aggrieved by the or-
der which in its opinion is wrong or against rules
or its implementation is neither practicable nor
feasible, it should always either approach to the
Court that passed the order or invoke jurisdiction
of the Appellate Court. Rightness or wrongness of
the order cannot be urged in contempt proceedings.
Right or wrong the order has to be obeyed. Flouting
an order of the Court would render the party liable
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 direction or delete any
direction. That would be exercising review jurisdic-
tion while dealing with an application for initia-
tion of contempt proceedings. The same would be im-
permissible and indefensible. In that view of the
matter, the order of the High Court is set aside and
the matter is remitted for fresh consideration. It
shall deal with the application in its proper per-
spective in accordance with law afresh. We make it
clear that we have not expressed any opinion regard-
ing acceptability or otherwise of the application
for initiation of contempt proceedings."
28. Thus, the Supreme Court has cautioned that while
dealing with an application for contempt, the Court is really
concerned with the question whether the earlier decision,
which has received its finality had been complied with or not,
and if there is no ambiguity or indefiniteness in the order, it is
for the concerned party to approach the higher Court if
according to him the same is not legally tenable. Such a
question has necessarily to be agitated before the higher
Court. It was held that when the claim inter se had been
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adjudicated and had attained finality, it is not open to a party
to go behind the orders and truncate the effect thereof by
hovering over the rules to get round the result, to legitimize
legal alibi to circumvent the order passed by a Court. The Apex
Court has held that the correctness or otherwise of the order or
give additional direction or delete any direction is
impermissible and it would amount to exercising review
jurisdiction while dealing with an application for initiation of
contempt proceedings. The applicants have tried to raise a
new issue relating to Clause 28 of the MoU. We cannot delve
into the conflict of Clause 28 of the MoU while examining the
present applications. There cannot be any cavil on the
proposition of law, as enunciated by the Apex Court in the
decisions relied upon by learned advocate Ms.Jani but the
same do not connect with the facts of the case. As previously
opined by us, we do not find any inducement in the form of
assurance, on which the judgements and orders of the learned
Single Judge and the Division Bench are premised.
29. In fact, the applicants have tried to mislead this Court by
conflating the issue of objecting to Clause No.28 of the MoU
with the alleged contumacious conduct of the respondents. On
the pretext of objecting this condition, they have not signed
the MoU and concurrently, they also want to reap the fruits of
the MoU by obtaining the monitory benefits. By filing these
applications and dragging the respondents in contempt
proceedings, yet another effort has been made by the
applicants to derail the process of re-development. Having
failed in both the proceedings and also review, on the pretext
of objection of Clause 28 of the MoU, they have attempted to
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resurrect the entire issue, which has been laid quietus by this
Court.
30. Hence, the present applications are not only
misconceived, but misdirected and are only filed with an
oblique motive to scuttle the re-development process by
alleging that the respondents have "obtained", the orders by
inducement. By filing the present applications, the applicants
have in fact made an attempt to demean this Court. By filing
and contesting these frivolous applications, the applicants
have wasted precious judicial time.
31. Hence, we dismiss the present applications with a cost of
Rs.10,000/- (Ten Thousand). The same shall be deposited
before the Gujarat State Legal Services Authority, within a
period of 02 (two) weeks, failing which, the Registry is directed
to list the matters before us or before the Bench assigned the
present roster.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(GITA GOPI,J)
MAHESH/1
