TaxTMI 
TaxTMI 
1999 (8) TMI 1024
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....rs had challenged the notices given to them by the Vadodara Municipal Corporation by which they were required to remove the encroachment made by them within 15 days of the receipt of the notice, failing which the corporation informed them that it would remove their encroachments at their expenses. Shorn of the contentions on merits, the petitions were dismissed on merits. The learned single Judge refused to stay the operation of the order to enable the petitioners to approach the appellate forum and made the following order on request being made in that regard: "The learned counsel for the petitioners have submitted that the petitioners desire to approach the appellate forum against this decision and furthermore there is monsoon season going and therefore, operation of this order may be stayed for some days to enable the petitioners to approach the appellate forum. The matter has been sufficiently prolonged and any further prolongation would be contrary to the final scheme which is approved by the apex Court and in respect of which it has been observed that there should not be proceedings which thwart the scheme. Any further interim relief would run contrary to the direction....
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.... to be maintained. Regarding the demolition and/or present position the District Judge, Vadodara, will depute one of the officers of his Court, who will visit the place and prepare Panchnama, if necessary, by taking help of his subordinates and including a photographer. Mr. Vakil, learned counsel for the applicants states that the applicants will pay necessary expenses for taking photographs and for other incidental expenses. It is also directed that if any of the applicants wants to go to his cabin for the purpose of assessing the situation and/or to take anything belonging to him, he will not be prevented by the respondent authorities. It is also open to such applicant to do so by getting the panchnama prepared. However, it is clarified that no construction will be made till further orders. Mr. H.S. Patel, Dy. Commissioner and Mr. A.B. Thorat, Law Officer of the Vadodara Municipal Corporation, to remain present in the Court on the returnable date. The Registry will send a copy of this order by fax message and/or any other mode to the District Judge, Vadodara, at the costs of the applicants." The order further reveals that Mr. H.S. Patel, the Deputy Municipal Commissio....
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....ed his affidavit in first instance on 15.9.97 soon after tendering his unconditional apology to this court, set out the circumstances in which the cabins were removed under the orders of the Commissioner, detailing the background of the litigation in connection with the removal of the cabins and orders made in the previous litigation which ultimately culminated in directions from the Supreme Court for framing a scheme for the city of Vadodara providing for hawking and non-hawking zones. In accordance with the same a scheme was framed and approved by this court. About the incident which led to the filing of these applications it was stated in para 12 as follows: "I say that on 19th August 1997 the corporation-Advocate Shri P.G. Desai informed the Commissioner that representatives of the petitioners want to meet the Municipal Commissioner on 20th August 1997 and accordingly, the Commissioner agreed to meet the representatives of the petitioners. On 20th August 1997, the Commissioner remained in the office from 08.30 a.m. I was present before this Honourable Court and this matter was called out at 12.15 p.m. The learned advocate for the petitioners requested to keep this matter....
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....the orders of the Municipal Commissioner. I say that the Corporation officers including me and the Commissioner, have acted bonafide in good faith in the interest of city. I say that if anything taken otherwise, as we acted bonafidely in this case, we may kindly be excused. Further I say and submit that on 20th September no oral or written orders regarding status quo was passed by the Honourable Court and to my knowledge no proceedings was drawn by the Court to that effect. On the contrary, I respectfully submit that till date corporation has obeyed all the oral and written orders passed by the court in this regard and therefore, there is no question of willfully defying the orders of this Court." A rejoinder was filed on behalf of the applicant. 6. Respondent No. 2A at the first instance filed her affidavit on behalf of the corporation on 10.9.97. In this affidavit asserting that she holds this Honourable Court in high esteem submitted unconditional apology. It was further stated in the affidavit that all actions taken by her for the corporation and for the City of Vadodara were bonafide and in public interest. It was further stated that in view of the facts and circumstanc....
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....s tendered her unconditional apology for the breach of the aforesaid statement. In the later part of the affidavit expressing regret she explained her statement made in her earlier affidavits about the issue whether any undertaking was given to the court explaining the fact what made her to make the previous statement in the affidavit. It was averred, "I sincerely regret that the aforesaid actions were in breach of the statements made by the learned counsel on behalf of the Municipal Corporation that no action for demolition of cabins will be taken till 21st August, 1997 and I sincerely and unconditionally apologise for the breach of the aforesaid statement." 10. Mr. H.S.Patel respondent no. 1 in the affidavit dated 9.7.99. In this affidavit he has stated that " I regret that the action of 21.8.97 was breach of the statement made before this court by the learned advocate for the corporation and I sincerely and unconditional apologise for the same." 11. As noticed above respondent No. 5 B.S. Sarvaiya, District Supdt. of Police, Vadodara who was working at the relevant date as Assistant Commissioner of Police Baroda City filed his affidavit and in his affidavi....
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....ut of which these proceedings have arisen are amalgamation of different group of persons having cabins in different part of Vadodara city. Not all of them were parties in all of the previous proceedings but amalgam of different groups from previous litigation, numbering small or big, and also those who were themselves not party to any litigation but claim to be representatives of earlier litigating parties. The history of litigation, we shall be viewing in the present context without referring to any particular petitioner. In 1958 some suits were filed by erstwhile cabin holders challenging the right of Baroda Municipality to evict the plaintiffs alleging themselves to be tenants which resulted in dismissal at the level of the Trial Court. But they partly succeeded in appeal before the District Court which held the right of Municipality to evict the occupants under them. 19.8.1999 16. As illustration, Civil Suit No. 1773/58 filed in CJ (SD) in representative capacity alleging that Municipality Board has no right to invoke provisions of Municipal Boroughs Act as total area in question did not vest in municipality and it had no right to realise lease money from the occupants. The s....
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....roved by Supreme Court in Bombay Hawker's case (supra). The Corporations went in appeal before Supreme Court which were disposed of along with a group of petitions directly filed before the apex court on 2.5.86 in following terms: "1. The petitioners/appellants undertake to this Court that they shall remove their hand-carts and/or gallas, cabins, etc. on or before December 31, 1986. However, this undertaking by the appellants/petitioners will be subject to clause (2) below. Such undertakings should mention the exact places of their present trading. The undertakings to be filed by July, 1986. 2. The appellants/petitioners, however, will beat liberty to adopt appropriate proceedings in respect of locations of the area of the places in the trading zones where the appellants/petitioners and other hawkers will be permitted to carry on their trade in the final scheme. 3. The Municipal Corporation of Baroda shall give an opportunity to the appellants/petitioners to make their representations and will take them into consideration when it fixes hawking and non-hawking zones, the final scheme. 4. The Municipal Corporation, Baroda, should fix such zones expeditiously and in a....
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....ion (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner." The definition clause distinguishes the two categories of the contempt in the sense, whereas, civil contempt is primarily related to disobedience or defiance of an order or direction of court or dishonouring any undertaking given to a court which is treated at par with a breach of injunction, so far as consequences are concerned and aimed to seek enforcement of an order of the court which a party to the proceedings is directed to do or forbear from doing and acts in contravention thereof and the defiance of such direction is dealt with properly. The conduct which is brought within the purview of criminal contempt is one that affects adversely the very dignity of the court and the ....
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....id to cause prejudice or interferes or tended to interfere with the due curse of the judicial proceedings. We have already noticed, while referring to the history of the case, that in the long run, of proceedings at different stages, there are two orders of the Supreme Court. One requiring undertaking from the petitioners or appellants before the Supreme Court to remove their hand carts and/or gallas/cabins on or before 31.12.86. Other dubbing subsequent attempt by various persons to obtain interim order from the civil courts or other forums after the scheme providing hawking and non-hawking zones in the city of Vadodara as approved by this Court as an abuse of the process of the court for thwarting the scheme and holding such conduct to be contempt of court. The fact that the Supreme Court did not proceed against those suitors for committing them for contempt does not take away the message inherent into it that any attempt which affects the scheme approved for the traffic betterment of the city of Vadodara through indirect means is not to be viewed lightly. Thereafter when the present petitions were filed and precisely an issue was raised between the parties whether the petitioner....
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....t for the Union Territory, by an appropriate authority notified in that behalf or with his consent in writing. Obviously, in view of the order dated 21.8.97, it cannot be considered to be a case of suo motu initiation of proceedings. As it is apparent from the order, while the court noticed about statement having been made on 20.8.97 and a complaint having been made that in breach of that statement the cabins have been removed and also noticing that the removal of cabins having not been denied, it did not think fit to initiate proceedings suo motu but has expressly left the parties if they desired to take out appropriate proceedings. Further, after recording statement of Mr. H.S. Patel and Mr. Thorat on 27.8.97, it had still not thought it fit to initiate proceedings suo motu. It is also not the case of either of the parties that it fulfils any of the three conditions for taking cognisance of a criminal conduct as required u/s 15. But that, in our opinion, is of academic importance, firstly, because we have reached conclusion that this is not a criminal contempt and secondly, once an action for proceedings for contempt has been initiated vis-a-vis a particular action if that action....
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....ver, for reaching the conclusion that impugned acts amount to civil contempt, it must be established clearly with reasonable certainty that such a statement was made to court as an undertaking to court. What we have to consider from the material before us is that whether it can be said beyond reasonable doubt that statement was made as an undertaking to the court or statement was an assurance given to the opposite party. 20.8.1999 24. Undoubtedly, unconditional apology has been tendered by respondents abandoning any plea of justification before us. However, we are of the view that before we consider the question of acceptance of apology, it becomes imperative that we consider whether a case for breach of undertaking to court has been made out or not, inasmuch as an apology neither amounts to purging of contempt nor is a defence to contempt. The apology and its consideration stand on the premise that the case for civil contempt or criminal contempt has been made out and the accused is to be convicted for such contempt. The real remorseful apology showing contrition of the contemner is a factor relevant for considering whether the offence of committing contempt of court is mitigate....
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.... undertaking given to party, as distinguished from an undertaking given to a court, from the purview of the contempt proceedings. Notwithstanding that an act is in gross breach of assurance given by one party to another, may not be countenanced, and give rise to claim for damages to aggrieved party but that does not provide the foundation for the contempt proceedings. Another principle which governs the issue about breach of an undertaking in the context of contempt proceedings is that it is to be established beyond any reasonable doubt clearly what was the undertaking given, to whom the undertaking was given, and for what the undertaking was given. 28. It is to be borne in mind, notwithstanding that breach of undertaking carries with it same consequence as a breach of injunction, while the latter is embodied in directions issued by a court and there is no question about the terms in which it has been issued, as its contents emanate from the proceedings of the court, about the former the same thing cannot be said. The undertaking can be in writing as well as oral. In the case of an undertaking to the court in writing, there may not be any difficulty in ascertaining what the undert....
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....by forbearing to do something to obtain an order or ward off suffrage of an order which it would otherwise be subjected to or is likely to be subjected to. 31. In this connection reference may be made to Naraindas v. Government of Madhya Pradesh and others, AIR 1974 Supreme Court 1252. It was a case in which proceedings against one of the contemners were initiated on the ground that on 19th June 1973 when the applications for interim injunction and stay were heard by the learned vacation Judge, Mr. Y.N. Chaturvedi had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the Text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May 1973 by permitting the respondents to put in circulation and sale those 29 text books. It was alleged that a subsequent report published in 'Hitwad' containing alleged statement of State Minister Mr. Arjun Singh that reopening of schools have been postponed because of non-availability of the 29 text books for circulation and the interim orde....
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....he court sanctions a particular course of action or refrains from adopting a particular course of action. 33. The first and the most important material in the absence of any record of proceedings of 20th August 1997 is the order of the Division Bench hearing Letters Patent Appeal recorded on 21.8.97, relevant part of which reads as under: "It is complained that yesterday mention was made and matter was ordered to be kept today and to maintain status quo till today. In fact, at that time in presence of the learned counsel for the respondent-authorities it was stated that no demolition will be effected till today. Mr. S.N. Shelat, learned counsel appearing for Mr. P.G. Desai confirms that such a statement was made and that it was conveyed by him to Deputy Municipal Commissioner Mr. H.S. Patel." The aforesaid statement of facts in order dated 21.8.97 have three limbs. Firstly, it was complained by the present applicants that "yesterday a mention was made and the matter was ordered to be kept today and to maintain status quo till today." This limb suggests that it was contention of the applicants then, that it was an order of the court that status quo be maintai....
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....ssed to respondent No. 2A reads as under: "We the undersigned request you that today in Hon. Court at the time of hearing of cabins leave petition it was decided not to take any forceful action to remove the cabins till the next hearing which is kept for tomorrow. This was agreed by your advocate Mr. Pranav Desai and Attorney Journal Mr. Shelat." From the tenor of this telegram, it appears that this telegram has been given in consultation with their advocates as it also records, "we have consulted our advocate Mr. S.B. Vakil and your advocate Mr. Pranav Desai." 36. The telegram sent to Mr. H.S. Patel, respondent No. 1, by very those persons who sent above-referred telegram to respondent No. 2A, is identical in its expression. So also the telegram to respondent No. 3, proceedings against whom have since been dropped, carried the same contention. 37. Yet another telegram was sent on 21.8.97 to respondent No. 2A, by another group, the relevant part of which reads: "the matter is on board and there is consent statement given orally before court not to disturb our possession till further hearing which is fixed for tomorrow" This telegram was given b....
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....he facts recorded by the court on 21.8.97 regarding the confirmation from Mr. Shelat that such a statement was made and conveyed to Mr. H.S. Patel, Dy. Commissioner. This also accords with the statement made in telegrams to various authorities that consent was made by the Corporation through their counsel that cabins will not be demolished and Deputy Commissioner was informed about it. 23.8.1999 39. Another facet of these proceedings may be taken note of. There is no dispute between the parties in substance that on 20.8.97 neither of the party was seeking adjournment but it was due to ongoing business of the court it was not possible for the court to take up the matter on that date when the mention was made by the petitioners at 2.45 p.m. for the purpose of taking up the matter for hearing. There is also no dispute that in first session of hearing the petitioners were awaiting outcome of the meeting of the petitioners' representatives with the Municipal Commissioner for which a request has been made through the counsel for the Corporation on 19.8.97 and the opportunity of hearing was not availed when the matter was called out in the first session of hearing. It has been state....
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....sai, whether opponents Nos. 1 and 2 would maintain status quo for a day, that is, till 21st August 1997. At that time, the respondent No. 1 Shri H.S. Patel was present. Mr. S.N. Shelat stated to the Honourable Court that no demolition would be effected for the next day. The same was also conveyed to respondent No. 1 by Shri S.N. Shelat." 40. From the aforesaid one thing is clear that the respondents were not seeking any order in their favour or against the applicants for which they needed to make any statement or offer any undertaking. As we have already noted above, one of the ingredients which is essential for the purpose of making a breach of undertaking as a ground for initiating proceedings for civil contempt, the same must be with a view to obtain an interim order or a relaxation was absent. As is apparent from the facts, in fact it was the applicants who were in need for obtaining an interim order in view of rejection of their prayer for a stay during the interregnum period of filing their right of appeal, with clear directives that they have to remove voluntarily within specified period if they want to avoid an enforced eviction. Coupled with this, court having expres....
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....With these conclusions, we are of the opinion that the action of the respondents which took place between the hearing of 20th August 1997 and 21st August 1997 strictly does not fall within the scope of civil contempt. 42. It is to be kept in view that proceedings of the contempt of court are quasi-criminal in nature and the alleged act or conduct must be strictly brought within the four corners of requirement of 'contempt' before the accused can be held guilty and punished for the same. Benefit of any reasonable doubt, on consideration of the probabilities, if any, goes to the accused. 43. Though taking note of facts in totality we have reached this conclusion in favour of the respondents, we be not understood to have approved the action of respondents No. 1 to 2A and 4. We cannot resist from observing that the respondents have acted in a most irresponsible and unreasonable manner. The respondent Corporation is a local authority and exercises sovereign power of the State. Its officers acting on its behalf are responsible for its conduct. The duty to act fairly is ingrained in all spheres of activity and is first obligation of any limb of the State. Acting in derogation of....
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.... clearly to the Municipal Commissioner and avoided in the first instance to make a straight forward statement about statement made by the counsel in the court. Instead, he gave impression in his statement on 27.8.97 as if the statement by the lawyer was made in his absence and he was later on informed, and failed to make any effort, which as an officer of the responsibility of Dy. Commissioner he was bound to make to impress upon his superior to desist from insisting on removing of cabins contrary to what has transpired in court during the day. He too is responsible for the act of breach of faith. However, the same cannot be said about respondent No. 4 Mr. Bipin Shah who is a Ward Officer and was in no position to act contrary to directions of his superiors, respondent Nos.1 and 2A, merely on the say of petitioners. He was not connected in any way with the court proceedings. He has acted merely on the orders of respondent No. 2A. 44. Ordinarily, in such circumstances, restoration of status quo ante could have been considered. However, we find that in the circumstances of the case, the same cannot be granted at this stage particularly keeping in view the findings reached by learned....
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....nt. The precedents serve as guidelines. 47. In the facts and circumstances of the case at hand, for the reasons to be presently stated, we are satisfied that the apology has come with a sense of genuine remorse and with contrition notwithstanding initial reply affidavits show that in almost undisputed fact situation a justification is sought to be made for the acts of demolition. Yet we find that unconditional apology by abandonment of plea of justification including technical pleas about an undertaking at all having been given to the court or it being not advantageous to the parties, the same have been offered before commencement of arguments without any effort being made to justify the acts and again reiterated the same before expression of opinion of court about 'contempt' on merit. But that is not the only reason which has prevailed with us. We have noticed from the facts stated above, firstly, that the respondents' plea right from the beginning has been that the applicants are not entitled to stay at the site in any manner in view of the decisions of the Supreme Court dated 2nd May 1986 and another order dated 3rd May 1989 where the Supreme Court denounced the att....
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....t at any point of time the applicants had given up their right to continue with the Letters Patent Appeal. The fact that Sevakram who was present in court and was not with Commissioner during talks on 20.8.97 has denied making of any such statement, does not militate against the credibility of statement as noted above. It merely reflects denial of any agreement having been reached for the removal of cabins forcibly on their failure to remove them voluntarily. Nonetheless when there was agreement about shifting to the site and the Commissioner having principally agreed to do whatever in her power to recommend the case for acceptance of the demand for pucca construction as well, the probability of holding such belief bona fide, howsoever grossly incorrect or erroneous it may be, about the outcome of negotiations, though cannot justify the action, certainly could be considered while considering the apology in the totality of circumstances. 48. In this connection, reference may be made to Hoshiar Singh and another v. Gurbachan Singh and others, AIR 1962 SC 1089. It was a case of disobedience of a prohibitory order. On initiation of contempt proceedings defence was taken that the order....
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....stances, even on assumption that case for wilful breach of undertaking given to court is made out, would accept the unconditional apology tendered by respondent No. 2A and respondent No. 1 before commencement of hearing and expression of opinion abandoning all pleas of justification assuming that the alleged acts of demolition of cabins amounts to breach of undertaking by respondents No. 1 and 2A as persons responsible for conduct of business of the Corporation. 50. Respondent No. 4 Mr. Bipinbhai Shah has not been shown in any manner to be responsible for the conduct of business of corporation independent of acting under the orders of respondent Nos. 1 and 2A. He therefore cannot be found guilty of contempt of court. Merely acting as subordinate to carry out directions of superiors without anything more cannot render a subordinate responsible as abetting or aiding the breach of undertaking given to the court. Proceedings against him are liable to be dropped. 51. Respondent No. 5 has merely discharged his duty to deploy police force at the site when an operation of such magnitude was being undertaken to keep control over the law and order situation. As we have found, no intimation....