Full Judgment Text
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PETITIONER:
BOMBAY ENVIRONMENTAL ACTION GROUP AND ANR.
Vs.
RESPONDENT:
THE MUNICIPAL CORPN. OF PUNE & ORS.
DATE OF JUDGMENT: 07/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
JT 1996 (2) 470 1996 SCALE (2)312
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard the counsel on both sides.
The contempt proceedings sought to be taken out
against the respondents-builders/developers on the
ground that the order passed by the High Court on
23.3.1992 in Writ Petition Nos.923/92 and 5710/91 has
been violated on the premise that in spite of the
injunction order granted in terms of para (f) extracted
in the impugned order, the developer is proceeding with
the construction in plot No.57, the prayer was turned
down by the High Court. It is an admitted fact that two
civil suits came to be filed by the owner, R.M. Mulla
Trust, in the civil Court and those suits now stand
decreed. As at present the decrees are not subject
matter of any appeals. Under these circumstances, the
High Court proceeded on the footing that when there is
a valid decree passed by civil Court to proceed with
the construction of the flats in plot No.57, the action
taken by the builder is not in violation of the order
of the High Court. Which so holding the Division Bench
in the impugned order also pointed out thus:
"We are, however, not inclined to
hold that there is any contempt or
that any restraint order is
necessary."
In view of that finding the contempt proceedings
were closed holding that whatever construction is done
would be subject to the final orders in the writ
petitions.
Shri Gopal Subramaniam, learned senior counsel,
contended that though the owner of the land, namely,
M/s. R.F. Mulla Trust, has been given the right to the
developer to construct the building in accordance with
law, yet the construction, is in violation of law. The
appellants approached the High Court that the builders
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are causing environmental degration and the matter is
pending. Interim injunction was issued restraining the
builders to proceed with the construction except in
accordance with the certificate issued by the Collector
and the rules contained in Appendix ’S’ to the
Development Control Rules for Pune. The owner had
secured injunction in the civil suit by way of a
declaration on a misrepresentation that the writ
petition pending in the High Court were disposed of and
that there was no stay granted by the High Court to
proceed with the construction in plot No.57. It is
contrary to the record, namely, writ petitions are
pending and injunction order is still subsisting.
Though the appellant is not a party to the proceedings
in the suit, the developer, who got his right from the
owner and proceeded pursuant thereto, is also bound by
the orders of the High Court where he is eo-nominee
party respondent. The High Court ought to have taken
serious view of the matter as the procedure adopted in
the civil suit is nothing but to circumvent the orders
of the High Court. In that perspective, the High Court
ought to have taken serious note of the violation of
its orders and proceeded for contempt in accordance
with law.
May be, as contended by Shri Gopal Subramaniam
the view is possible. But the High Court was not
inclined to pursue further action against the developer
and held that it was not in violation of the High
Court’s orders. In the view the High Court had taken,
we do not think that it is a case for us to interfere.
However, it would be open of the appellants to seek
such remedy as is available under law to have the
decrees of the civil court assailed in an appropriate
forum and seek such directions as may be deemed
necessary to be consistent with the orders of the High
Court so long as the writ petitions are pending. We do
not make any further observations in this regard.
Shri Baroocha, the learned Senior counsel
appearing for the respondents, in fairness has stated
that the High Court did not intend to vary the order of
interim injunction granted in terms of prayer (f)’. He
contended that the respondent is proceeding only in
accordance with the rules contained in appendix ’S’ to
the Development Control Rules for Pune and the
certificates given by the Collector and that his
proceeding with the matter is not in violation of the
order granting injunction on 23.3.1992. We are not
concerned with that controversy in this case. If there
is anything, appropriate action would be in the High
Court itself.
It is made clear that so long as the order of
injunction granted by the High Court on 23.3.1992 is in
force and is allowed to remain in force, no
construction can be made contrary to the directions
contained therein. Any construction should be only
consistent with the order and no further order.
We also make it clear that the observation made by
the High Court that "we are, therefore, prima facie of
the opinion that initiation of the buildings on plot
No.57 does not appear to be in breach of the rules"
does not warrant such a finding in the contempt
proceedings.
The appeal is disposed of with the above
observations. No costs.
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