consider the whole material and the documents on record including
the action and conduct of the parties. Mere nonfiling of affidavit
immediately with regard to the structure in no way can be stated to be
a reason to punish the officers as done in the present case. The law
with regard to the “unauthorized structure” and the action which
required to be taken by the Corporation and or its officers is very well
reflected in various judgments and so also in the provisions of the Act.
The procedure which ought to have and/or should be followed by the
Corporation and/or its officers, therefore, need no further discussion.
It is quite settled, but the issue still remains whether noncompliance
of the statutory provisions, even if any, that itself amounts to contempt
of Court as observed by the Court. As noted already, such illegal
action, even if any, taken, the remedy is elsewhere. The parties always
at liberty to take out the proceedings for compensation and/or
damages if case is made out.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 742 OF 2005
The Municipal Corporation of Gr. Bombay Vs Laxman Mahadeo Mohite
CORAM: ANOOP V . MOHTA, J.
DATE : September 02, 2013
Citation; 2014(2) ALLMR 704 Bombay
None for the Respondent. The Appeal is against Order
dated 5 February 2005 whereby the Judge of the City Civil Court, held
three officers of the Appellant/Corporation, guilty for breach of
injunction order and thereby punished for one month civil
imprisonment and also imposed fine of Rs.2500/ each. By the same
order, permission was granted to the Plaintiff/Respondent to reerect
the structure if already demolished, though there is a statement made
that the suit structure is “reerected and reconstructed and the
structure is in existence today”. The same position stands today. It is
relevant to note that the basic Suit was filed in view of the issuance of
notice under Section 351 of Mumbai Municipal Corporation Act, 1888.
However, liberty was granted and after following the due procedure
on 22 April 1998, the structure was demolished. The injunction was
obtained by the Plaintiff on 5 January 1999 by suppressing the fact of
demolition. The Plaintiff unable to produce the court papers at the
time of basic action. The exact location of the structure was never
placed on record. The Suit itself was for restrainment order against
the Corporation from demolishing the suit structure. By subsequent
averment, submission was made that the structures were demolished
on 21 August 2000 again.
2
This Court admitted the matter on 29 August 2005. The
said order also permitted the parties to settle the matter. The
Appellants deposited the amount of Rs.2500/ each and the same is
invested. None appears for the Respondent though the matter is listed
from time to time. The demolition, even if any, of the portion of the
premises, without due notice, in no way, can be stated to be in breach
of order of the Court. The breach of principle of nature justice and the
Corporation must follow the due procedure of law having different
facets. The concerned person/aggrieved party may file Suit for
compensation, but we are concerned at this stage with the finding that
the the officers of the Corporation have committed the contempt of
court by not obeying the uncommunicated order of the Court. There
is no finding that the concerned person, who demolished the
unauthorized construction/structure had personally received the
notice, still they proceeded to demolish the structure. The
communication gap from officer to officer just cannot be overlooked.
However, this in no way means a green signal and/or permissible
modes for offices of the Corporation to demolish the structure without
due notice and/or inspite of preventive order from the Court. The
Corporation and/or its officers are bound by the orders passed by; the
Court. But the issue is the proper and correct communication of the
order. Punishing only these officers in such fashion on the basis of
finding that there was no proper notice given and/or they must follow
the due procedure of law before eviction, in my view, is not what
contemplated under Order 39, Rule 2(a) of Code of Civil Procedure
(CPC).
3
The issue of notice under Section 527 of the Mumbai
Municipal Corporation Act, 1888 also just cannot be overlooked only
on the finding that the Defendant's officers were not discharging the
duties as per the law. To file Suit without due/statutory notice on a
finding that the action was not in good faith that itself cannot be the
reason to overlook the case of the Appellants with regard to the
submissions revolving around the contempt action so initiated by the
learned judge. The nonfiling of immediate affidavit and/or reply by
the officers concerned, with regard to the existence of the structure in
question which, in my view, is also a matter which require
reconsideration during the trial and cannot be the reason to punish
the offices of the Corporation. Before punishing, it is necessary to
consider the whole material and the documents on record including
the action and conduct of the parties. Mere nonfiling of affidavit
immediately with regard to the structure in no way can be stated to be
a reason to punish the officers as done in the present case. The law
with regard to the “unauthorized structure” and the action which
required to be taken by the Corporation and or its officers is very well
reflected in various judgments and so also in the provisions of the Act.
The procedure which ought to have and/or should be followed by the
Corporation and/or its officers, therefore, need no further discussion.
It is quite settled, but the issue still remains whether noncompliance
of the statutory provisions, even if any, that itself amounts to contempt
of Court as observed by the Court. As noted already, such illegal
action, even if any, taken, the remedy is elsewhere. The parties always
at liberty to take out the proceedings for compensation and/or
damages if case is made out. In the present case, as noted above, the
Court, while disposing of the contempt petition, has permitted the
Plaintiff/Respondent to erect the structure if not already erected. This
itself, in my view and as rightly done, sufficient to dispose of the
matter so far as the issuance of contempt Notice No.462/2000 in
question. The Suit as decreed in favour of the Plaintiff and against
the Corporation and as permission is already granted to reerect the
structure, in my view, needs no interference. However, this does not
take away the Corporation's right to initiate eviction proceedings in
accordance with law if case of unauthorized construction is made out.
4
So far as fine deposited by the Appellants in Court, it is
directed to refund to the Appellant, as liberty is also granted to the
Respondent/original Plaintiff to claim for damages and/or
compensation in accordance with law.
5
Impugned order dated 5 February 2005 is modified
accordingly. The Contempt Notice No.462/2000 is quashed and set
breach of injunction as observed.
aside by holding that the officers of the Respondent are not guilty for
The Appeal from order is accordingly partly allowed.
6
There shall be no order as to costs, with liberty.
(ANOOP V
. MOHTA, J.)
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