ORDER
1. The petitioners are pavement dwellers of Sophia Zuber Road, Nagpada, Bombay-400008. On 3rd November, 1988 their huts along the pavement of Sophia Zuber Road and 1st Peerkhan Street were demolished by the municipal Corporation or Greater Bombay. The Ward Officer of 'E' Ward and the Ward Officer, Removal of Encroachments, were in charge of the demolition. It is the case of the petitioner that while demolishing their hutments the officers and workers of the Bombay Municipal Corporation also took away some of their belongings.
2. A Voluntary Social Work Agency known as the Society for the Promotion of Area Resourves Center (SPARC) works amongst the pavement dwellers in 'E' Ward and in some other areas of Bombay. Sparc has an allied organisation known as Mahila Milan which works among women pavement dwellers. They help pavement dwellers in various ways such as obtaining ration cards, encouraging them to have savings and opening Savings Bank accounts for them etc. SPARC has an office in 'E' Ward at Jhula Maidan which is near Sophia Zuber Road. Sparc and Mahila Milan worked with the pavement dwellers of Sophia Zuber Road and 1st Peerkhan Street. They were in the process of negotiating for an alternate plot of land for these pavement dwellers when the demolition took place.
3. On 3rd November, 1988 when the petitioners and other hutment dwellers realised that their hutments are about to be demolished, they contacted SPARC. Some of the voluntary workers of SPARC were therefore present at the time of demolition and have given evidence in this Notice of Motion on behalf of the pavement dwellers.
4. It is case of the pavement dwellers that though some of their belongings were taken away by the Municipal officers and workers on 3-11-1988 in the course of the demolition, these were not returned to the pavement dwellers despite a request being made to the 'E' ward officer. Hence immediately on 4th November, 1988 the present Writ Petition No. 3381 of 1988 was filed by two hutment dwellers on behalf of themselves and 19 other pavement dwellers of Sophia Zuber Road whose belongings were so taken away. A list of these persons is annexed as Exhibit 'A' to the petition. The respondents to the petition are the Municipal Corporation of Greater Bombay, the Deputy Municipal Commissioner, Zone IV and Ward Officer, 'E' Ward. In para 3(b) of the petition the petitioners have set out the list of belongings which were taken away in the course of the demolition by the respondents. The particulars of these belongings are set out against the name of the petitioner concerned. The petitioner have prayed for a writ of mandamus or a similar writ directing the respondents to forthwith return to the petitioners their belongings as per the list in para 3(b). In the alternative, they have asked for compensation for the loss of their belonging caused by the respondents in the course of the demolition operation that took place on 3rd November, 1988.
5. The petition was filed on Friday 4th November, 1988. The next court working day was Monday, the 7th November, 1988 when the petition came up for admission. Pursuant to the notice which was served by the advocates of the petitioners on the respondents on 4th November, 1988 the advocate for the respondent was also present in Court on 7th November, 1988. My brother Ashok Agarwal, J. before whom the petition come up for admission granted a rule. By consent of both the parties the rule was made returnable forthwith. He passed the following order :
'...........
Whatever articles belonging to the petitioners are in possession of the Municipal Officers shall be returned to the Petitioners forthwith.
Rule absolute in above terms.
In the facts and circumstances of the case there shall be no order as to costs.
The respondents shall act on the uncertified copy of this order.'
He also recorded a statement made on behalf of the advocate for the respondents that he was disputing the allegations in the petition to the effect that the household belongings mentioned in para 3(b) of the petition had been taken away by the Municipal Officers after demolishing the huts of the petitioners. This order was passed at about 12 noon on 7-11-1988. Two workers of Sparc viz. Abdul Shakoor Moideen Kalwal (P.W. 5) and Brinda Dalal (P.W. 7) along with some of the hutment dwellers went at about 4.00 in the afternoon to the 'E' Ward Office and met Mr. Ghone the 'E' Ward Officer. They showed him the uncertified copy of the order which had been passed on that day by Ashok Agarwal, J. Ghone, however, informed them that belongings could be returned only on 12th November, 1988 because the intervening days were 'Diwali' holidays. Thereupon on the next day i.e. Tuesday the 8th November, 1988, the petitioners again moved Ashok Agarwal, J. asking for a fresh direction that the Municipal Corporation and its officers should be directed to return the belongings forthwith. The advocate for the respondents who was present, requested that time should be granted to the respondents till 12th November, 1988 for returning the belongings.
6. Accordingly on 8th November, 1988 Ashok Agarwal, J. directed that his order of 7th November, 1988 shall be complied with by the respondents on or before 12.00 noon on Saturday, the 12th November, 1988. Once again he directed that the respondents shall act on an uncertified copy of this order. It is the case of the petitioners that they could obtain a copy of this order only on the afternoon of 11th November, 1988. On obtaining a copy of this order on 11th November, 1988, Sparc workers Pouruchisti Sethna (P.W. 8) along with some others went to see Ghone and served him with the order 8th November, 1988. Ghone told them to see him on the morning of the 12th. It was pointed out to him that he was required to comply with the order by 12.00 noon on 12th November, 1988. He is said to have pointed out to them that compliance with the order will not take more than a few minutes, and that they should see him on 12th November. Accordingly on the morning of 12th November, 1988 Pouruchisti Sethna along with some other hutment dwellers and workers of SPARC met Ghone in his office. They were told by Ghone that there was no question of returning any belongings to them because the Municipal Officers and workers had not taken away any belongings of the hutment dwellers on 3rd November, 1988.
7. In view of this stand taken by the respondents, the petitioners have taken out the present Notice of Motion date 16th November, 1988 against the respondents for contempt of court. They have prayed that the respondents and in particular respondent No. 3 Ghone be held guilty of contempt of this Court's order dated 8th November, 1988. They have also prayed for a mandatory order and injunction directing the respondents to forthwith hand over to the petitioners and the other pavement dwellers on whose behalf the petition is filed their belongings which are listed in para 3(b) and which are in the possession of the 1st respondent since 3rd November, 1988. They have also asked for various consequential reliefs.
8. In order to appreciate why the petitioners and the workers belonging to SPARC treated the return of the belongings as urgent and moved the Court on 4th, 7th and 8th November, 1988, it is necessary to refer to the past experience of SPARC workers and the hutment dwellers. It seems that on 23rd October, 1986 demolition of hutments on the pavements of Dimtimkar Road and Peerkhan Street in 'E' Ward was carried out by the respondents. At this demolition also some belonging of the hutment dwellers where taken away. Despite the request of the hutment dwellers and SPARC the belongings were not returned. Hence the hutment dwellers had filed a writ petition in this Court being Writ Petition No. 2963 of 1986.
9. The petition came up before my brother Sawant J. on 13th October, 1986. He passed an order directing the Municipal Corporation to return the belongings. Pursuant to this order only some of the belongings were returned by the Municipal Corporation.
10. On 31st May, 1988 demolition of hutment on the pavement of 14th Lane, Kamathipura (also known as 'Shanti Nagar') was carried out by the respondents. This was also in 'E' Ward. Once again, at this demolition some of the belongings of the pavement dwellers were taken away by the respondents, and not returned. The pavement dwellers were compelled to file a writ petition in this Court being Writ Petition No. 1771 of 1988 for the return of their belongings.
11. On 14th June, 1988 may brother Kurdukar, J. passed an order in this writ petition directing the Municipal Corporation to return the belongings. It is the case of SPARC workers who have given evidence in this Motion that on both the occasions all the belongings which were taken away were not returned. In respect of the order of 14th June, 1988, they had gone along with some hutment dwellers to collect the belongings from the Municipal godown at Agripada. They were given only some of the belongings which were taken away and not all the belongings. They were told by the Municipal Officers present that this was all that was available. As they were coming out of the godown, they saw on the road opposite near an adjoining chawl, two cots. The pavement dwellers who had accompanied the SPARC workers immediately identified these two cots as belonging to them. They pointed out the identifying marks on the cots which showed that these cots were theirs. The chawl dwellers, however, informed them that these cots had been sold to them by the Municipal workers and they had paid for these cots.
12. The petitioners and SPARC workers therefore apprehended that unless they moved the court immediately, it was likely that the belongings which were taken away in the demolition of 3rd November, 1988 would also be similarly sold by the Municipal workers and officers for private gain and the hutment dwellers would be deprived of their belongings. This explains why on the very next day after the demolition they filed this writ petition.
13. It is now the contention of the respondents that they have not taken away any belongings of any hutment dweller during the demolition of 3rd November, 1988. Hence there is no question of complying with the order of 8th November, 1988. It requires to be determined whether the respondents are guilty of any wilful disobedience of the orders of 7th November, 1988 and or 8th November, 1988.
14. The first question, therefore, which requires determination is whether the respondents at the time of the demolition of 3rd November, 1988 took way any belongings of the petitioners and other hutment dwellers of Sophia Zuber Road and 1st Peerkhan Street. For this purpose the petitioners have led the evidence of themselves as also the evidence of the workers of SPARC and Mahila Milan. They have also examined a photographer who took photographs of the demolition work at their request. In all 26 witnesses are examined on behalf of the petitioners. The respondents have led the evidence of their officers belonging to 'E' Ward as also to the Ward Office for Removal of Encroachments who were present at the time of the said demolition. They have also led the evidence of Police Inspector Miranda of the Nagpada Police Station, who was present for the purpose of providing police protection at the time of this demolition. In all 9 witnesses are examined on behalf of the respondents.
15. The hutment dwellers have given evidence in a simple, straight forward manner. They vividly remember the demolition which was carried out on 3rd November, 1988. Fortunately the recording of evidence began on 17th November, 1988, which was soon after the demolition. Therefore, there is every reason to expect that they would remember the details. Each one of them has given special details pertaining to the demolition which lends authentically to what they have to state. They have also very frankly stated that some of the hutment dwellers were able to salvage some of the belongings, though not all. Each one of the 20 or so hutment dwellers who have given evidence have deposed to the belongings which they lost. They have not exaggerated their losses or inflated the value of their meager belonging. They have also given their story in a straightforward manner. Their stories tally in all material particulars. There is no evidence of any coaching. In my view, their evidence inspires confidence. None of them, although they are simple illiterate people, have been shaken in cross examination which has been ably and fairly conducted by Mr. Makhija, learned counsel for the respondents.
16. I wish I could say the same about the evidence given by the officers of the Municipal Corporation. The evidence given by them is far from satisfactory. They have prevaricated on important details. Sometimes they were even unable to answer simple questions. They also tried not to produce all the relevant documents. An attempt was made also to bring incomplete files. At least relevant documents which should have been in the concerned file were not found there and were subsequently produced from elsewhere. There is also some doubt about the nature of endorsement made on one of the important documents. On two relevant aspects of the case viz. whether any instructions were given to the demolition squad regarding removal of belongings and how despite similar instructions, belongings were removed in the earlier demolitions, the answers of the witnesses of the respondents are less than satisfactory or do not inspire confidence.
17. Let me examine first the story which emerges from the evidence led on behalf of the petitioners. Essentially they have all deposed to the following. On the morning of 2nd November, 1988 i.e. a day prior to the present demolition, a number of Municipal vans had come and were parked along side their huts. When the hutment dwellers asked the Municipal workers in the vans whether their huts were going to be demolished, the Municipal employees told them that they had no intention of demolishing these huts. They were going to carry out demolition in Kamathipura, 10th Lane, which is an area near Sophia Zuber Road, After some time these lorries went to Kamathipura, 10th Lane.
18. On the next day i.e. on 3rd November, 1988 in the morning again a few municipal vans were parked in front of the huts along Sophia Zuber Road. Once again the hutment dwellers inquired from the Municipal employees in the vans whether their huts were going to be demolished. They were once again assured by the Municipal workers that their huts were not going to be demolished. In view of this assurance, most of the hutment dwellers went away for their work on the morning of 3rd November, 1988. Women who remained in the huts were busy with their morning chores. The hutment dwellers, however, took the precaution of informing SPARC Office of the presence of Municipal vans. Hence some SPARC Officers were present at site from about 10.00 a.m. on wards. At about 10.30 or 11.00 a.m. while the women in the huts were preparing food for the day and going about their daily activities, some more Municipal Vans came. Other officers of the Municipal Corporation came accompanied by a police force from the Nagpada Police Station which is just across the road from these hutments. On seeing these people arriving, the hutment dwellers realised that their huts were targeted for demolition. They tried to remove their belongings. Some of them tried to tell the Municipal Officers that they would themselves remove the huts and give the material to them but they were told to get out of the way. SPARC workers who were present also talked to the Municipal Officers present, but to no avail. The hutment dwellers tried to remove such of their belongings as they could. They tried to take the belongings across the road to the pavement on the other side of the road. Some of them tried to keep their belongings on the same side of the footpath but away from the huts. In the meanwhile, the demolition work commenced and they were told to stay away so that they would not be injured. They were also initially assured by the Municipal employees that only the construction material of the huts would be taken away and that their belongings would not be touched.
19. All of them have unanimously stated that after some time, an officer of the Municipal Corporation who had put a handkerchief round his face, came on the scene and instructed the Municipal workers to remove the belongings also. One of the SPARC workers, namely, Dola Mitra (P.W. 6) when she found that the belongings of the hutment dwellers were also being put in the Municipal vans, went up to the Municipal Officer who was present and requested him not to remove the personal belongings of the hutment dwellers. She even showed him a copy of a previous court order which they had obtained in respect of another demolition in 'E' Ward in which the court had directed the Municipal Corporation to return the belongings of the hutment dwellers. She has stated in her evidence that despite being told about similar court orders, the Municipal Officer and workers did not need the request of SPARC workers as well as the hutment dwellers and took away some of the belonging.
20. As a result not merely the construction material of the demolished huts, but also the belongings of the hutment dwellers which were lying on that pavement were removed by the Municipal workers and put in the Municipal vans. Khairunnisa (P.W. 1) for example, has stated that in her hut she had 230 watch straps, a machine for cleaning watches, dials and watch cases, a gas lighter and clothes tied in a lungi cloth. These were put in the van and taken away. She said that she pleaded with the Municipal workers that not merely she would lose momentarily but her livelihood depended on these belongings and they should not be taken. She has also stated that she pleaded with them not merely for the return of her own belongings but also the belongings of her own neighbour Gulab Babu who was an old man and who could not go after his belongings. She has said that he had one stove, two vessels (Pathelies) and one bedding which were taken away. She said that normally she or her husband would be out doing business of cleaning watches either at Ranibaug or near Alexandra talkies. But because her husband was not well from 25th October, 1988 onwards and they could not go for work, she had kept her business equipment in her hut.
21. Mohamed Shoeb Mohammed Amin (P.W. 3) has given evidence that when the Municipal vans were parked in front of their hut on the morning of 3rd November, 1988 they had asked where the vans were to go that morning for demolition. They were told that some demolition work remained to be done at Kamathipura, 10th Lane and the vans would go there, and they should not be afraid. He said that since they were told that their huts were not to be demolished they did not remove their belongings or take down the huts. They were busy with the morning routine. Thereafter suddenly the vans moved in front of the hut and 4/5 people entered each of the huts in order to demolish them. When they protested they were told that there was a complaint about their huts and hence they were to be demolished.
22. He said that thereupon they told the demolition squad that they will demolish the huts themselves and give the material to the squad. But the police pushed them aside. He has also said that they pleaded with the Municipal Officers to give them five minutes time to remove their belongings. But the Municipal Officers refused to give them any time and they were all thrown out. Thereafter they remained on one side. The huts were demolished and the material was loaded in the vans. He said that their belongings were lying helter-skelter when another officer of the Municipal Corporation came on site. His face was covered with a handkerchief. He directed that their belongings should also be loaded in the vans. He has said that the hutment dwellers pleaded with the officers saying that these were very meager belongings which should be given to the hutment dwellers. But it was in vain. In the meanwhile he was trying to remove his utensils, bucket and two tins containing rice and other belongings by taking them across the road to the other side. While he had stopped at the traffic signal for crossing the road one tin was taken and put in the van. He tried to plead with the officer to return his tin and to him because his earnings were inside the tin and his transistor radio was also inside the tin. But the officer refused to return the tin to him and asked him to collect it from the Municipal Office. He has also said that he did not know where the Municipal office was. He complained to his neighbour that the Municipal workers and officers were taking away his belongings when the neighbour said that his belongings were also taken away. His neighbour said that they would go to the Municipal Office and ascertain where their belongings were. But their effort was infructuous. He has deposed that the Municipal Squad took away one radio, I chaddar (sheet) Rs. 600/- and 4 sarees belonging to the women of his family from his hut. He has also deposed that he was able to make only one trip across the road with some of his belongings. By the time he came back for the second trip his other belongings had already been put in the Municipal van. There is evidence to similar effect given by all the other hutment dwellers who have given evidence in this case.
23. Laxmi (P.W. 4) for example also said that initially when the vans came in the morning they were told that their huts were not going to be demolished. Hence she was busy preparing the morning meal. By about 11.00 a.m. she had prepared the meal and she went to a shop to buy some items. Her daughter came running to the shop to tell her that her hut was being demolished and therefore she quickly returned. When she reached her hut 8 or 10 people were pulling down the hut. She told the demolition squad that she had cooked a meal and the food was inside the hut. She should be allowed to go in the hut and take away here belongings and food. But she was told to stay away. She was also told to keep her belongings on one side and was told that they would remove only the material of the hut. Her belongings would not be removed. But later, instructions were given by a Municipal officer, who had covered his face, to take away their belongings. She has very frankly stated that her neighbour lost more belongings than she did. She has not been shaken in her cross-examination. She has said that she saw the belongings being removed by the demolition squad.
24. The evidence relating to the various items lost by the hutment dwellers need not be referred to in detail here. A list of the petitioners concerned, their belongings which were lost and their approximate value as emerging from the evidence on record is annexed to this judgment as Annexure 'A'. These items are ordinary household articles such as a cot, a water drum, a rolling pin, some jery cans, a water drum, a water bucket and the like. One of the hutment dwellers who was carrying on the business of dealing in used newspapers and old papers (raddi) had about 40 kgs. of paper stacked outside his hut. This stack was taken away by the respondents. somebody has lost cloths and some small utensils. Some have lost a cot, some sheets and bedding material. None of these are items of any great value. These are meagre belongings of pavement dwellers. The total value of the items so lost however adds up to Rs. 10,090/- (see Annexure 'A') Testimony of none of these hutment dwellers has been shaken in cross examination. I have no reason to doubt the genuineness of the statements which they have made on oath. Their testimony is also supported by independent evidence of the workers of SPARC and Mahila Milan.
25. Abdul Shakoor (P.W. 5), who is a worker of Mahila Milan, has deposed that on the morning of 3rd November, 1988 at about 9.30 a.m. he received at the office of SPARC at Jhula Maidan a phone all from one Sattar who is a hutment dweller of Sophia Zuber Road. He was told that Municipal vans were parked along side the huts there. Although the officers of the Municipality were telling the hutment dwellers that their huts were not going to be demolished, they were not sure about the bona fides of these officers.
26. On receiving the phone call Abdul Shakoor went to Sophia Road. He saw that the vans were parked near the hutments and he realised the likelihood of demolitions there. So he went back to the office and contacted the workers of SPARC and Mahila Milan who were present in the office. Pauruchisti Sethna was one of them. After informing these workers he went back to Sophia Zuber Road. He was there till about 11.30 a.m. By this time the demolition work had already started and two of the loaded vans were pulling out. He was instructed by Pouruchisti Sethna who was also present at site to follow these two vans in a taxi to find out where the vans were going to deposit their contents. He accordingly followed these vans in a taxi. He found that these vans reached Ranibaug godown. He returned at 12.00 noon by which time the demolition work was in full swing. He has deposed that the saw a heavy box being loaded on to the Municipal van. He said that this was a very heavy box which required 2 or 3 people to lift it. He also saw a pile of old paper (raddi paper) being put in the Municipal van. He deposed that this was clearly not material pertaining to the hut. He also saw that in one of the huts there was big earthen pot in which water was kept. The Municipal employees removed the lid and put it in the van. The woman who owned the hut objected and said that it was drinking water and why they were spoiling it. They did not listen to her and they broke the pot. The witness has identified the broken pot in a photograph which has been taken being Exh. 'A-3'.
27. Dola Mitra (P.W. 6) who works with SPARC has also given evidence relating to this demolition. She was present at the time of the demolition. She has supported the story of hutment dwellers that while the huts were being pulled down the hutment dwellers were trying to remove their belongings from the huts and take them across the road to the opposite pavement. The police were chasing away the hutment dwellers and were telling them to keep away. She has also said that initially belonging of the hutment dwellers were not being taken away by the Municipal workers. But after about half an hour the Municipal workers started taking away the belongings of the hutment dwellers. She approached one of the Municipal Officers and showed him a previous court order in connection with a previous demolition when the court had directed that belongings should not be removed. The Municipal Officer refused even to look at it. She thereupon told the officer that they were not entitled to take the belonging and he must sign for each and every belonging which is being taken. The Officer told her that she must give him a written guarantee that these people will never encroach on the road again. He refused to listen to her and said that he had instructions from higher officers to remove the belongings. She has also deposed that she twice asked the officer about his name but he refused to give his name.
28. AS the belongings were being taken away, she and her colleagues Pouruchisti Sethna decided to see Mr. Ghone, the 'E' Ward Officer in order to stop this. They could not contact him at the 'E' Ward Office. So they went back to site. By this time the loaded vans were beginning to pull out.
29. As a number of people had lost their belongings, they decided to make a list of the belongings which had been taken away on the spot. Accordingly a list was prepared which is at Exhibit 'C'. The list was prepared by two of her colleagues Prema Gopalan and Alka. Prema Gopalan has also given evidence. She is P.W. 26. Prema Gopalan reached the site of demolition at about 12.20 noon. By then the demolition work was complete and the Municipal vans were leaving. She is therefore not in a position to say what happened at the time of demolition. But she said that on reaching the demolition site, she talked to the women hutment dwellers in order to ascertain what exactly had happened. She was requested by the women hutment dwellers to make a list of the belonging which had been taken away by the Municipal employees in the course of demolition. So she prepared a list with the help of her colleagues. She has deposed that she ascertained individually from each of the hutment dwellers the exact description of the belongings which each of them had lost. She prepared the list (Exh. C) on the spot on 3rd November, 1988. She has said that she cross-checked this list 2 or 3 times with the hutment dwellers because the hutment dwellers wanted that the list should be as accurate as possible.
30. Pauruchisti Sethna (P.W. 8) who is also a worker with SPARC, has given evidence supporting the hutment dwellers. Pauruchisti Sethna with her colleague Brinda Dalal arrived of Sophia Zuber road on 3-11-1988 at around 10.15 a.m. They were told by the hutment dwellers that the men in the Municipal vans had said that there would be no demolition along Sophia Zuber road. She decided to wait for some time and see what happened. Brinda Dalal who had some work with the hutment dwellers along the Railway line thereafter left. Soon thereafter demolition work started at Sophia zuber Road. She tried to locate the Municipal officer in charge of the demolition work. She spoke to Mr. Dande who was present at the site. She first told him that no notice had been received by them about any demolition and there was a Court order that huts cannot be demolished unless a previous notice has been given to the hutment dwellers. Mr. Dande thereupon told her that a notice had been pasted some time back regarding the demolition. Pauruchisti Sethna then requested Dande to allow the women to break the huts themselves and hand over the material. He told her not to interfere and asked her to meet higher officials. She asked him whether he meant Ghone and he answered in the meant Ghone and he answered in the affirmative. By this time demolition had already started. But at that time she has said that the Municipal workers were not taking away any belongings.
31. There was a lot of chaos and confusion at site. So she decided to have photographs taken of the demolition work. She asked Laxmi (P.W. 4) to accompany her to a local photographer. They found a photographer near Kamathipura. They asked him to accompany them to the demolition site and take photographs. It took them about 15 to 20 minutes to return to site with the photographer.
32. When they returned she found that the Municipal squad had also started taking away the belongings. So she spoke to the Municipal Officer in plain cloths who was putting the belongings in the Municipal van, she told him that he could not take the goods. But he refused to listen to her. Thereupon she asked the photographer to take a photograph showing the goods being put in the van.
33. She has also deposed to the fact that the women were trying to remove the belongings and take them cross the road to the opposite footpath. The goods which were taken to the opposite footpath were saved while the goods which remained were taken away. She has also corroborated the testimony of Abdul Shakoor. She has said that she asked Shakoor to follow the Municipal vans in a taxi to see where they were going. Thereafter she, accompanied by Dola Mitra, had gone to Mr. Ghone's office but found that Mr. Ghone was not in. When she returned to Sophia Zuber Road, Shakoor had also come back. He informed her that two of the vans had gone to Ranibaug godown. Since she did not know where the rest of the vans had gone, she went with Shakoor to Agripada godown to see if any van had gone there. But she found that the vans were not at Agripada Godown. Then she returned to Sophia Zuber Road, when she found that some of her colleagues were talking to the women and making a list of the belongings which were taken away in the municipal vans. She was present for some time while the list was being made.
34. Shaukatali Mohamedali, the photographer who took the photographs of the demolition, has been examined as P.W. 2. He has deposed that on the morning of 3rd November, two women came to his shop and requested him to accompany them to take photographs of the demolition work which was in progress at Sophia Zuber Road. He has said that when he reached the site the Municipal workers were removing the goods and putting them in the vans. He took photographs of the demolished huts. In all he took 13 to 14 photographs. These photographs are at Exhibits A to A-12 collectively. He has taken all these photographs on the same roll. Some photograph were taken by him on instructions given by SPARC workers and hutment dwellers while the other photographs were taken on his own. He has identified the people putting goods in the van as Municipal workers. He has said that though these people were in plain clothes, some of them were wearing bands on their arms to show that they were municipal workers. He has said that he understood these people as being Municipal workers. These photographs also support the story of the hutment dwellers. One of the photographs - Exhibit 'A' - shows a wooden crate like box being put in the van. This is the kind of box in which hutment dwellers keep their belongings. Some of the other photographs show the belongings lying helter-skelter on the pavement. One of them shows a broken earthen pot. Looking to the evidence the petitioners have established that their belongings as per Exh. C were taken away by the respondents on 3-11-1988.
35. The Municipal officers, who have been examined on behalf of the respondents, however, deny that any belongings of the hutment dwellers were removed by them during the demolition on 3rd November, 1988. The respondents have examined Dande Sub-Engineer, 'E' Ward, (R.W. 1), Rawal, Junior, Engineer, 'E' Ward, (R.W. 7), and Ghone, 'E' Ward Officer (R.W. 8). They have also examined Kamble, Sub-Engineer, Wards Office Removal of Encroachments, (R.W. 2) and Darap, Godbole and Boriker who are Junior Engineers in the Ward Office, Removal of Encroachments (R.Ws. 3, 4 and 5). These officers were present at the time of the demolition on 3rd November, 1988.
36. Ghone has accepted responsibility for the demolition which took place on 3rd November, 1988. The person in charge of this demolition from 'E' Ward Office was Dande (R.W. 1). According to Dande, instructions were specifically given on this occasion to all the officers and employees of the Municipal Corporation not to remove any belongings of the hutment dwellers. He has admitted that such instructions are not always given. But he claims that it is understood that belongings are not to be removed. In cross-examination he has stated that in the case of most demolitions belongings are not removed, and this is a policy decision taken by the Municipal Corporation. He has, however, said that on this occasion specific instructions were given not to remove the belongings of the hutment dwellers. All the Municipal Officers who have been examined have stated that specific instructions were given on this occasion not to remove any belongings. It is not clear why such specific instructions were required to be given on this occasion.
37. They have all stated that because such instructions were given, belongings could not have been removed. The Junior Engineers, who were supervising the demolition of huts allotted to them have said that they did not see any belongings being removed from the huts in their charge or being put in the van by Municipal workers. Dande and Rawal have also stated that they were supervising the demolition work and they did not see any belongings being removed by Municipal workers.
38. The evidence of these officers leaves much to be desired. Dande, for example, has emphatically stated that the work of demolition was intensively supervised by 8 officers and he had not seen any belonging being taken. In cross-examination he has admitted that he was present when two previous similar mass demolitions took place in 'E' Ward on 23rd October, 1986 and 31st May 1988. On these occasions also he says that he had not seen any belongings being taken by the Municipal workers. But in fact, such belongings were taken in these previous demolitions. Pursuant to the orders of the Court passed in writ petitions which were filed in connection with these two demolitions belongings had been returned by the respondents. The fact, therefore, that Dande did not see any belongings being taken does not establish that belongings were not taken by the respondents.
39. He has also deposed to something else which is far more disturbing. He has said that when belongings are taken no record is kept of such belongings are taken no record is kept of such belongings, either when they are taken or when they are kept in the Municipal godown. The only available record in respect of such belongings is the receipt which is taken at the time when the belongings are returned. In other words, if any belongings are unauthorisedly removed by any Municipal Officer or workers there is no way of tracing such belongings. I have only the word of Dande that no belongings were taken away by the respondents. There is no Municipal record to indicate whether this was so or not.
40. The emphasis of Dande is also on routine instruction given to the workmen not to remove the belongings. This evidence does not inspire confidence. When Dande was asked specifically about the various items which were taken away by the Municipal workers, he merely said that he himself did not see any of these items being taken. There was no clearcut denial. He has also said that in the present case about half an hour's time was given to the hutment dwellers to remove their belongings. But this evidence of Dande is clearly in conflict with what the hutment dwellers and SPARC workers have deposed to. The evidence of the latter has a ring of truth. I am inclined to prefer their evidence.
41. When questioned about the earlier demolitions Dande has said that in the earlier demolitions the belongings were taken away by mistake. But the belongings which were taken away in previous demolitions were large items like cots and trunks. Dande conceded that they could not have been taken accidentally. Presumably, therefore, what Dande means to convey is that these belongings ought not to have been taken. Yet despite 'routine instructions' not to remove belongings, these belongings were in fact taken. And although they were taken 'by mistake' (as Dande puts it), they were returned only after Court orders. This phrase 'taken by mistake' is used by other officers also who have given evidence in this motion in connection with belongings taken in earlier mass demolitions. The other officers have also repeated that 'routine instructions' were there not to remove the belongings; and they did not see any belongings and they did not see any belongings being taken. The similarity of expressions used by all officers and the nature of evidence led does not inspire much confidence.
42. When confronted with a photograph of box being put in the Municipal van (Ex. A) the officers have all prevaricated and given peculiar explanations. Kamble (R.W. 2) when he was shown the photograph at Exhibit 'A' he acknowledged that the box was not housing material. He, however, tried to explain the photograph by saying that he was not sure whether the truck was a Municipal truck. He also tried to explain away the photograph by saying that he did not know who the man putting the box in the van was. When he was directly asked whether his workers and staff stole the belongings of the hutment dwellers after they were put in the truck, he did not give any outright denial. He merely said that he did not know what happened to the box in the truck after the truck left the site of demolition.
43. Dharap (R.W. 3) when shown Exhibit 'A' tried to explain the photograph by saying that the box which is being put in the van is unserviceable material. He explained this by saying that he presumes that the box must have been left lying on the pavement after the demolition work and it must have been put in the truck to clear the pavement. Later on he tried to say that the photographs - Exhibits A to A-12 may or may not relate to the demolition at Sophia Zuber Road. He said that he cannot recognise any people in the photograph. He admitted, however, that the photographs show the normal scenes at a demolition. He also admitted that he has not seen such a wooden box being used for building huts anywhere. He admitted that 'you can keep things in such boxes'. Again when he is asked whether the box would be a personal belonging and not material for constructing a hut, he says that if it is empty and is broken and is kept on one side, he would not say that it is a personal belonging.
44. Borikar (R.W. 5) when shown Exhibit 'A' states that the box is broken and hence it cannot be used for keeping things. Rawal (R.W. 7) has also prevaricated on the question of removal of belongings. In fact there is a curious reluctance on the part of the officers of the Municipal Corporation to consider goods shown in the photographs as personal belongings. Dande, for example, when he was asked whether a Matka or an earthen pot would be considered as a personal belonging or as unserviceable material, desisted from answering the question by saying 'I should not say anything'. Immediately thereafter he has to admit that by 'personal belongings' he means items other than those used in the construction of a hut. By this criterion, he accepts that a matka or earthen pot would be a personal belonging. One fails to understand or appreciate this reluctance to acknowledge a simple fact. The evidence of the Municipal Officers concerned on this aspect of the case is far from satisfactory. In fact as far as the 'E' Ward Officer are concerned, they seem to be suggesting that their responsibility was only with respect to there and which were brought by the 'E' Ward and in those three vans no personal belongings were taken. Darak, Kambli and Rawal, who have deposed on behalf of the respondents, have failed to give satisfactory answers to many questions in cross-examination. Rawal, (R.W. 7) for example, was in charge of Agripada godown from which some cots were returned under a Court order in respect of the previous demolition at Shanti Nagar. He has not been able to explain satisfactorily the circumstances relating to the belongings being brought to Agripada Godown. He has tried to evade questions about what happened to those belongings. He concedes that no records were kept of items which were brought to the godown. He has not given straight answers regarding alterations made in the two receipts showing the return of belongings. (Exhibit 'E' collectively). He has also admitted that the file which he had brought in Court pertaining to the Shanti Nagar demolition was not a complete file. He was forced to admit this because it did not contain the notice given by the petitioners' advocate to the Corporation. This notice was subsequently produced. It was claimed that this was produced from another file though the witness was unable to say which file this was. This appears to be an attempt on the part of the witness to produce an incomplete file or to produce a file after removing from it inconvenient documents. This is clearly an attempt at misleading the Court and does not inspire much confidence in the truthfulness or reliability of such a witness.
45. Kamble (R.W. 2) has also not shaped too well in his evidence, and he has not given answers in a forthright manner e.g. initially he denied that any worker of SPARC spoke to him at the time of demolition on 3rd November, 1988. He said that he was too busy to notice. Later on, however, he did admit that he had a talk with Dola Mitra. One wonders why he should have been so reluctant to acknowledge Dola Mitra's presence at the time of demolition.
46. The petitioners rely upon a press interview given by Mr. Khairnar, Deputy Municipal Commissioner, Removal of Encroachments to a staff reporter of the Times of India of 7th November, 1988. This was in connection with the demolition on 3rd November, 1988. A copy of this report is annexed as Exhibit 'B' to the affidavit of the 2nd respondent dated 15th November 1988 in support of the Notice of Motion. In this press report Mr. Khairnar is said to have stated at belongings of the dishoused families were taken away in the demolition of 3rd November, 1988.
47. Mr. Khairnar has given evidence in this case. He has stated that he has not been correctly reported. He has said that he merely informed the press reporter that as per the legal provisions all encroachments including the belongings of the hutment dwellers can be removed. He has deposed that he had not told the reporter that belonging of the dishoused families were taken away. He said that he was not aware of what had actually happened and he had only explained to the reporter the policy that belongings can be taken away. In view of this explanation given by Mr. Khairnar not much importance can be attached to his reported statement to the effect that belongings of the hutment dwellers were taken away on 3rd November, 1988. But his testimony does cast considerable doubt on the testimony of other officers who have deposed that there were routine instructions not to remove the belongings at the time of mass demolitions. It is interesting to note that in his evidence Mr. Khairnar has emphatically deposed that belongings of the hutment dwellers can be taken away because there is a provision in the Bombay Municipal Corporation Act for removal of encroachment. He has not deposed to any instructions given at the time of the demolition to the effect that belongings should not be taken. He has said that in the course of demolition, taking away of personal belongings which are on site is not wrong or improper. But on humanitarian grounds he may not permit belongings to be taken, and sometimes he may not permit even hutment being demolished. He has also said that when he supervise a demolition he gives instructions to his junior engineers and assistant engineers. The nature of instructions depends upon the situation and the nature of the structure to be demolished. For example, he says that if after repeated demolitions people do not leave the site he may give instructions to remove the belongings also although it may sound a bit inhuman. It is clear, therefore, that there were no routine instructions relating to the manner in which the demolitions were to be carried out or the material which was required to be removed, as deposed to by the Municipal Sub-Engineers and Junior Engineers.
48. Khairnar has also stated that he was not personally aware whether any belongings were taken away or not. When he was informed about the court's order in this case he had enquired from the officers concerned whether any belongings had been removed. When they answered in the negative he was satisfied that no further action was required to be taken. Looking to Khairnar's evidence he cannot be considered to have wilfully disobeyed any order of this court.
49. The conduct of the respondents subsequent to the demolition of 3rd November, 1988 and their evidence in that connection is also unsatisfactory. It is the case of the petitioners that on the 3rd of November, 1988 itself some of the hutment dwellers along with the workers of SPARC tried to contact the 'E' Ward Officer Mr. Ghone in order to obtain return of their belongings. But they could not find him in the 'E' Ward Officer. Thereafter they went to seek the help of Mr. Subhash Sawant, Chairman of the Improvements Committee of the Bombay Municipal Corporation at the main office of the Bombay Municipal Corporation. They decided to get in touch with Mr. Sawant because he had been supportive of SPARC and they had taken his advice in the past. Dola Mitra has deposed that they were desperate to get help because the belongings of the hutment dwellers were taken away. When they went to the office of Mr. Sawant they found that the 'E' Ward Officer Mr. Ghone was sitting in Mr. Sawant's office. They found that Mr. Ghone knew about the demolition. He disclaimed any responsibility for it. He asked the SPARC workers and the hutment dwellers to see him the next morning in his office. On the next day (4th November) Dola Mitra and three colleagues along with the hutment dwellers went to the 'E' Ward Office at 9 in the morning to meet Mr. Ghone. However, they could not get any information about their belongings and whether they would be returned. Therefore, on the same day they filed the present writ petition in this court being Writ Petition No. 3387 of 1988. On 4th November, 1988 the advocate of the Petitioners sent a notice regarding the filing of the writ petition and a copy of the writ petition to the respondents. The notice and the papers reached 'E' Ward Office on 5th November, 1988. There is an endorsement to this effect, on the copy of the notice Exh. F. The words 'AEN II' refer to Assistant Engineer, Maintenance II i.e. V. D. Shah of 'E' Ward, the immediate superior of Dande. 5th November, was a working day for the Bombay Municipal Corporation, and its offices. Accordingly on 7th November, 1988. Rawal was sent to court by Dande at 10.30 a.m. with the file of the demolition of 3rd November 1988 to meet the respondents' advocate. Rawal met him at 12.00 noon in court and handed over the file to him. Rawal went back to office before the case was called out.
50. After the order was passed, Brinda Dalal (P.W. 7) along with the 2nd petitioner Khairunissa and some others went to serve the order on Ghone, 'E' Ward Officer at 4.30 p.m. on 7th November, 1988. A copy letter dated 7th November, 1988 from the advocates of the petitioner enclosing the order copy bearing the endorsement of 'E' Ward Office and date and time as 7-11-88, 4.30 p.m. is at Exh. H. Ghone has denied this meeting.
51. After the order of 8th November, 1988 was passed, a copy of this order could be obtained by the petitioners only on 11th November, 1988, the intervening days being Diwali holidays, Pauruchisti Sethna (P.W. 8) with Laxmi (P.W. 4) went to serve the order on Ghone at 2.30 p.m. on 11th November, 1988. They were told to come on the 12th. Pauruchisti Sethna with some hutment dwellers again saw Ghone on the morning of 12th when Ghone told them that there were no belongings since none were taken.
52. Now, if the respondents are right, why did they not inform the court on 7th or 8th November that they did to have any belongings in their possession Why the first denial only on the 12th November How much value should be attached to the statement of Trivedi, learned advocate for the respondents on 7th November that the respondents dispute the allegation that belongings were taken 'E' Ward Officer Ghone is the main witness on behalf of the respondents. He is also joined as a contemner to this petition. His evidence on facts contains many inaccuracies. Since his evidence is recorded within 2 months of the events, I cannot attribute to him any lapse of memory. The inaccuracies seem to be deliberate. In this evidence he has denied having met any workers of SPARC at the Office of Subhash Sawant, on 3rd November, 1988. He, however, admits that he did go to the office of Subhash Sawant on 3rd November, 1988. He stated that he does not remember seeing any person from SPARC or any hutment dwellers in Mr. Sawant's office on 3rd November, 1988. His evidence is in sharp contrast to the evidence given by Dola Mitra and her specific statement that when Ghone met them, he told them that they should come to his office on 4th November. Ghone also denies having met any SPARC worker on 4th November. This does not explain how SPARC came to know that demolitions were also contemplated at Dimtimkar Road. Because SPARC claims that they got the information from Ghone on 4th November, 1988. Ghone denies this. He also states that after 3rd November no other demolition in 'E' Ward was contemplated at least for one week, thereby suggesting that he could not have told the SPARC workers on 4th November 1988 that hutments at Dimtimkar Road were going to be demolished that day. It is in evidence from SPARC workers that on getting this information from Mr. Ghone on 4th November they had asked the hutment dwellers of Dimtimkar Road to demolish their huts themselves. They had accordingly demolished these huts and kept the material on site but the Municipal workers did not come on that day do remove the material. Ghone has suggested that there was no question of his giving any such information since no demolition at Dimtimkar Road was contemplated on 4th November. The denial of Ghone, however, does not appear to be justified because from the evidence of Police Inspector Miranda (R.W. 8) it is clear that originally a combined demolition programme for Sophia Zuber Road, 1st Peerkhan Street, and Dimtimkar Road was contemplated for 3rd and 4th November, 1988. The Ward Officer, Removal of Encroachments, had made a request for police protection in respect of these demolitions. However, the Nagpada Police Station had pointed out that simultaneous mass demolitions of this scale may cause a law and order problem. Hence the idea of carrying out demolition at Dimtimkar Road on 4th November was dropped. Miranda has produced a file in his possession in connection with the demolition at Sophia Zuber Road in support of his testimony. Ghone's denial therefore of any contemplated demolition at Dimtimkar Road is clearly not acceptable. Ghone's case, therefore, that nobody saw him on 3rd November or 4th November for return of belongings is not believable. Ghone was aware, right from 3rd November, 1988 onwards that the hutment dwellers were demanding their belongings taken away during the demolition.
53. Ghone has also tried to twist subsequent events in order to show that he learnt about the order for return of belongings only after 8th November, 1988.
54. Now, on 4th November, 1988 the present writ petition was filed. It was served along with a notice from the advocates of the petitioners on the respondents on the same day and it was received by the 'E' Ward Office at 10.30 a.m. on Saturday the 5th November, 1988. There are office endorsements of 'E' Ward to this effect on the copy of the notice (Exh. F) sent by the advocate of the petitioners. Ghone has tried to suggest that this notice was sent by the Desk Officer first to the wrong section (Assistant Engineer, B & F) and it was received back only on the 7th November at 4.00 p.m. in view of the endorsement on the entry relating to this letter in the receipt book, Exh. G. Thereafter it was sent to the correct section Maintenance II. The conflicts with the endorsements on Exh. F which show that the letter reached Assistant Engineer, Maintenance II on 5-11-1988. He has also said that V. D. Shah who was in charge of Maintenance Section was on leave on 7th November, 1988 and hence the notice may have remand unattended. But he accepts that all important matters such as court proceedings would have been brought to him. I am not inclined to accept that Ghone was unaware of the court proceedings on 7th November, 1988. If V. D. Shah was on the leave on that day, his next in charge Dande must have shown the papers to Ghone as per normal practice.
55. Moreover, Rawal has deposed that on the morning of 7th November, 1988 he was instructed by Dande to take the file pertaining to the demolition of 3rd November, 1988 and see the Advocate of the Municipal Corporation in the High Court. Rawal accordingly came to the High Court with the file pertaining to the demolition of 3rd November, 1988. He saw Mr. Trivedi. It is his case that he waited in court till about 12 noon and as the matter had not reached, he handed over the file to Trivedi and left. The evidence of the respondents shows that no record is kept as to whether any belongings were taken or not taken during a demolition. Hence the file is silent on this question. Clearly, therefore, apart from handing over the file to Mr. Trivedi, Rawal had not done anything more on 7th November, 1988. Mr. Trivedi, therefore, had not received any instructions from any officer of the respondents that no belongings of the hutment dwellers were in fact taken on 3rd November, 1988. In these circumstances, the non-admission by Mr. Trivedi recorded on 7th November appears to be merely a routine precaution.
56. After the order was passed on 7th November, 1988 it is the case of the petitioners that Brinda Dalal one of the workers of SPARC along with some hutment dwellers went to Mr. Ghone at 4.00 p.m. on 7th November to serve him with an uncertified copy of the order. Ghone denies having met either Brinda Dalal or any hutment dwellers on 7th November, 1988 or having received an uncertified copy of the order on that day. He has said that he got a copy of the order only on the evening of 8th November, 1988. Once again Ghone is not sure whether on the 8th November he received the order of 7th November, 1988 or 8th November, 1988. After some time he has stated that he received the order of 8th November on the evening of 8th November. This statement of his clearly cannot be accepted. The petitioners obtained a copy of the order of 8th November from the court only on 11th November, 1988 because the intervening days were Diwali holidays. They could not have served Ghone holidays. They could not as served Ghone with the order of 8th November on 8th November. I accept the testimony of Brinda Dalal that she served a copy of the order of 7th November on Ghone on 7th November itself. This is corroborated by Exhibit 'H' which bears an endorsement of 'E' Ward to the effect that the order of 7th November was received at 4.30 p.m. on 7th November. Ghone admits that urgent court orders would be forwarded to him immediately.
57. The entire attempt on the part of Ghone is to suggest that prior to 8th November he did not know about the court order for return of the belongings. Hence he could not ask his advocate to point out to the court on 7th or 8th November that no belongings were in fact in their possession. This attempt has clearly failed.
58. The facts that the version of Ghone is not correct and the version of the petitioners is correct is borne out by the actual application which was made on 8th November by the petitioners. Had the petitioners and SPARC workers not met Ghone on the evening of 7th November, 1988 there would have been no need for them to move the court again on 8th November saying that their belongings were not being returned by the Municipal officers and that an order should be passed directing them to return the belongings forthwith. At this stage, there is no explanation as to why Mr. Trivedi was not instructed by the Municipal Corporation or its officers to tell the court than in fact, there were no belongings of the hutment dwellers with the Corporation. Instead, Mr. Trivedi has applied for extension of time till 12th November to return the belongings. The Corporation, therefore, has not informed the Court at the earliest possible opportunity that the belongings were not taken. This also throws considerable doubt on the story now set up by the witnesses on behalf of the Municipal Corporation. The veracity of the testimony of the officers of the respondents is very doubtful.
59. The past conduct of these officers also casts doubt on their present case. Clearly on two previous occasions the officers of the 'E' Ward were required to comply with the orders of the court to return the belongings which they had taken during previous mass demolitions. They have admitted that despite what they call 'routine' instructions not to take belongings, such belongings were taken in the previous demolitions, although these were supervised by the same officers. They have been unable to give any explanation as to why this happened and how large items like costs and trunks could be taken away in the presence of officers supervising the demolition despite their instructions not to remove them. The fact, therefore, that they did not see belongings being taken in the present case is no guarantee that belongings were not taken.
60. In the light of this past conduct, the anxiety of the petitioners to come immediately to court and apply for return of their belongings appears to be justified. They had realised from past experience that their belongings were sold by Municipal Officers or employees to outsiders after they were taken away and that unless they were prompt they would lose their belongings. This explains why they filed a writ petition on the very next day and moved the court on the next available day. It also explains why on 8th November they again applied for immediate return of their belongings and were not willing to wait for the few days of Diwali before their belongings could be returned.
61. The respondents, therefore, took away some of the belongings of the hutment dwellers. Despite orders of the court they failed to return these. This amounts to a wilful disobedience by the respondents of the orders dated 7th and 8th November, 1988. Now it seems that the Municipal Corporation does not have the belongings any more. The evidence leaves no doubt that the belongings were in fact taken. If they are not now available, the least that the Corporation can do is to compensate the hutment of dwellers for the value of their belongings which were taken away.
62. It is contended by Mr. Makhija, learned Counsel for the respondents, that compensation for the articles which were taken away cannot be granted in this Motion. He submits that the order of 8th November does not direct such compensation to be paid. Hence no such order should be passed in the motion. In the first place, in the original petition itself there was an alternative prayer for compensation in lieu of return of belongings. The learned Judge did not pass any order on the alternative prayer because he directed the return of belongings. The Municipal Corporation through its officers and employees did take away the belongings of the petitioners including other hutment dwellers whom they represent. Despite the order of the court, these belongings were not returned to them. It may be that by reason of the acts of commission and omission of its officers and employees the Municipal Corporation is now put in a position where it cannot return the belongings. But if this is so, it is a situation of its own creation. In a contempt application the respondents must first comply with the court order. If the 1st respondent Corporation cannot now return the belongings in specie, it must compensate or remembers the hutment dwellers in money.
63. In the case of Aligarh Municipal Board v. Ekka Tonga Mazdoor Union, reported in : 1970CriLJ1520 the Supreme Court has observed that contempt proceedings against a person who has failed to comply with the Court's order serves a dual purpose : (1) Vindication of public interest by punishment of contemptuous conduct and (2) coercion to comply the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. To employ a subterfuge to avoid compliance of a court's order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt. Hence the first requirement in the present case is for the respondents to comply with the order of 8th November, 1988. If they cannot comply by returning the belongings, they must return to the hutment dwellers its money equivalent.
64. In the above case the Supreme Court has also held that a Corporation (a Municipal Board in that case) is liable to be punished by imposition of fine and by sequestration for contempt for disobeying the orders of competent court directed against it. It has held that a command to a Corporation is in fact a command to those who are officially responsible for the conduct of its affairs. If they, after being appraised of the order directed to the Corporation, prevent compliance or fail to take appropriate action within their power for the performance of the duty of obeying those orders, they and the corporate body are both guilty of disobedience and may be punished for contempt.
65. There are observations to a similar effect in the case of Narain Singh v. Hardayal Singh reported in where the Punjab High Court held that Corporations are subject to punishment for contempt. Officers, agents and others who act for a Corporation and who knowingly violate or disobey an injunction against the Corporation are punishable for contempt.
66. It is also urged by Mr. Makhija, learned Counsel for the respondents that the Notice of Motion is defective because in the prayers in the Notice of Motion the particulars of contempt are not set out. It is by now well established that the precise nature of contempt must be set out in the Motion since a proceeding in contempt is a quasi criminal proceeding. (See in the connection 36 Bom LR 992 : AIR 1934 Bom 452 Kilachand Devchand & Co. v. Ajodhyaprasad Sukhanand and 34 Bom LR 1416 : AIR 1932 Bom 638 Jayantilal Hiralal & Co. v. Woman Narayan Velinkar.
67. In the present case, however, the order which is disobeyed is a very short order of one line. The order of 8th November, 1988 directs the respondents to comply with the order of 7th November, 1988 before 12.00 noon on 12th November, 1988. The order of 7th November 1988 in its operative part is also a very short order which directs the respondents to return to the petitioners and other persons mentioned in Exhibit 'A' to the petition their belongings in possession of the respondents by reason of the demolition of the 3rd November, 1988. Looking to the nature of this order it is clear that the prayers of the Motion set out what the contempt is. In prayer (a) the petitioners have pleaded that the respondents have violated the order of 8th November 1988. In prayer (b) there is a prayer for a mandatory order and injunction directing the respondents to forthwith hand over to the petitioners and other pavement dwellers listed in Exhibit 'A' to the petition whatsoever goods are listed in para 3(b) of the petition and which are in the possession of the 1st respondents since 3rd November, 1988. When both these prayers as read together the nature of the contempt becomes very clear from the motion itself. I am, therefore, not prepared to dismissed the Notice of Motion at this last stage on the ground that the particulars of contempt are not set out in the Notice of Motion.
68. It is also urged by Mr. Makhija that the prayers in the Motion are defective because prayer (a) of the Notice of Motion merely refers to the order of 8th November and not to the order of 7th November. The order of 8th November, however, in turn clearly directs the respondents to comply with the order of 7th November, 1988. Hence the Motion cannot be dismissed on this count.
69. It is also urged that the order of 7th and 8th November do to direct the respondents to return the belongings to any persons other that the two petitioners who are named. This submission proceeds on misreading of the petition. The petition clearly states that it is filed by the two petitioners on behalf of the hutment dwellers whose names are annexed as Exhibit 'A' to the petition. The orders, therefore, cover all these persons.
70. It is also urged that as the order is not clear, the Corporation should not be held guilty of having disobeyed it. This submission also must be rejected because the order on the face of it is quite clear and there should have been no difficulty in comprehending it and complying with it.
71. It was also submitted on behalf of the respondents that jurisdiction in contempt should not be exercised in a case such as the present case because the petitioners have an effective alternative remedy by way of execution. In : AIR1958Cal474 in the case of Dulal Chandra Bhar v. Sukumar Banerjee, the Calcutta High Court observed that the jurisdiction in contempt is a very special jurisdiction and is certainly a jurisdiction which it is necessary for the superior court to have and exercise whenever it is found that something has been done which tends to affect the administration of justice or which tends to impede its course or tends to affect the public confidence in to ability of the courts to enforce their orders. At the same time it is a jurisdiction of drastic character and its very usefulness depends on the restraint with which it is used. I respectfully agree with these observations of the Calcutta High Court.
72. In the case of Smt. Indu Tewari v. Ram Bahadur Chaudhari, reported in : AIR1981All309 , the Allahabad High Court refused to exercise jurisdiction under the Contempt of Courts Act when the applicant had an effective alternative remedy of enforcing the decree passed in her favour by putting the same in execution under O. 21, R. 32 of the Code of the Civil Procedure. The court said that an order of injunction restraining the opposite party from interfering in the applicant's ownership and possession of the disputed vehicle could have been so enforced and hence invocation of contempt jurisdiction was not warranted. Similarly in the case of Mrs. Vrinda Anand v. Arun Anand reported in AIR 1987 Delhi 120 the Delhi High Court refused to exercise contempt jurisdiction in the case of non-compliance of an order for payment of maintenance. Such is not the present case. In the present case the respondents were directed to return the belongings of the hutment dwellers which were taken from them by the respondents at the time of demolition. In view of the dispute now raised by the Municipal Corporation that it was not by the Municipal Corporation that it was not in possession of such belongings, it is difficult to see how execution proceedings could have been effectively resorted to by the petitioners, who are poor pavement dwellers. In my view in the circumstances of present case this is a fit case where the jurisdiction under the Contempt of Courts Act can be exercised.
73. It was also contended by the respondents that the respondents were within their rights in taking the belongings of the hutment dwellers. It is not for me to decide whether the order of 7th and/or 8th November, 1988 was correctly passed or not. Both these are orders passed by the High Court. They are binding on the respondents. If the respondents were aggrieved by the orders passed or desired to challenge them, they could have filed an appeal challenging these orders. In facts, after the commencement of recording of the evidence in this motion, the respondents did prefer an appeal from these orders before the Division Bench of this Court. That appeal has been dismissed. In these circumstances, the respondents cannot challenge the correctness of these orders. They are bound to comply with them.
74. In view of the evidence which is before me, I hold that the 1st respondents Municipal Corporation has wilfully disobeyed the order of this court dated 8th November, 1988. The conduct of the 1st respondent is of such a nature that it substantially interferes with the due course of justice. The 1st respondents are, therefore, guilty of contempt of court. By not complying with the order of the court the respondents have attempted to render the order passed against them nugatory. This is, therefore, a fit case where the respondents should be first directed to comply with the orders passed against them. If, now, by reason of their own acts of a commission and omission, they are not in a position to return the belongings in specie, this is a fit case where they can be directed to pay to the petitioners the money equivalent of the belongings which they have lost.
75. In the circumstances, the 1st respondents are directed to pay to the petitioners and others whom they represent a total sum of Rs. 10,090/- as per Annexure 'A' to this judgment and order in lieu of belongings which were taken away by the 1st respondents. This amount shall be paid by the 1st respondents to SPARC who shall receive it on behalf of the petitioners and who shall file an undertaking to distribute the amount so received amongst the petitioners and other hutment dwellers as per the particulars set out in Annexure 'A' to this judgment and order. In Annexure 'A', the names of the persons concerned, the belongings that they have lost and the money equivalent of these belongings are set out. The amounts shall be distributed accordingly to the petitioners by SPARC.
76. The hearing of this Motion has taken 59 hours and 20 minutes. In fact, looking to the circumstances in which the petitioners are placed, ordinarily, but for the help which they have received from SPARC, and the lawyers who ably conducted their case in a spirit of public service, they could never have successfully fought the 1st respondents for the return of their belongings. In fact attempts were made by both sides to see if the dispute could be amicably settled. But unfortunately these attempts did not fructify. The petitioners have pointed out that fighting this kind of litigation to vindicate their right is an intolerable burden for the hutment dwellers and that I should lay down some guidelines under which such hutment dwellers can be protected in future. The invitation, though tempting, must be declined by me. After all the action to be taken by the 1st respondents in the case of a given demolition will depend very much upon the circumstances of that case, the attitude of the hutment dwellers concerned, assessment of the resistance which they may offer and so on. It does, however, seem that the present case did not require the harsh treatment meted out by the respondents. The 'E' Ward Officers knew that there was a responsible agency working amongst these hutment dwellers. An offer was made that the huts could be voluntarily demolished by the hutment dwellers and material handed over to the Municipal Corporation. The respondents should have availed of the offer. Secondly, adequate opportunity was obviously not given to the hutment dwellers to remove their belongings. They could only salvage some of their belongings. This kind of conduct is also totally unwarranted. When the entire area was cordoned off by the police force and there was no law and order problem, more time ought to have been given to the hutment dwellers for removal of belongings. Surely the hutment dwellers could have been treated more humanely and sympathetically. In fact in the present case the conduct of the Municipal Officers and workers has been far from satisfactory. They have deliberately misled the hutment dwellers and lulled them into a sense of security by assuring them repeatedly first that their huts were not going to be demolished even when the vans were parked opposite the huts and then telling them that belongings will not be touched. Had they been told that the hutments were going to be demolished, the hutment dwellers could have salvaged at least their belongings. Much trauma and distress could have been spared. This was deliberately not done for reasons best known to the respondents. This lends some support to the contention of the petitioners that the officers and employees of the respondents deliberately did not permit the petitioners to take away all their belongings so that these belongings can be taken away by the Municipal workers and officers and misappropriated. In any case this is a matter which is for the Municipal Corporation to investigate. It is for them to ascertain how belongings which were taken at the time of demolition are now not to be found in the possession of the Municipal Corporation.
77. Moreover, the Corporation ought to lay down proper procedures to ensure that when belongings are taken at the time of the any demolition, a proper record of such belongings is maintained. Although all these belongings may be meagre the collective value of these belongings may add up to a substantial sum in a mass demolition. Without any accountability for the belongings removed at the time of demolition the power can be misused as it apparent from the instances narrated relating to previous demolitions.
78. Looking to the length of time which is taken by the present Notice of Motion and the circumstances of the case, this is a fit case where substantial costs can be awarded to the petitioners. In the case of Sebastian M. Hongray v. Union of India, reported in : 1984CriLJ830 the Government of India, in a writ of Habeas Corpus, had been directs to produce certain persons in court. The Government failed to do so. In proceedings which were taken against the Government under the Contempt of Courts Act 1971, the Supreme Court directed the Government to pay Rs. 1 lakh to the wife of each person as exemplary costs. The Supreme Court said that in the circumstances, keeping in view the torture, the agony and the agony and the mental oppression through which the wives of the persons directed to be produced had to pass, instead of imposing a fine exemplary costs are permissible.
79. In the present case I am informed by the petitioners that their out of pocket expenses in conducting this Notice of Motion have come to about Rs. 15,000/- that apart, the 1st respondents by their conduct have caused considerable mental anguish and distress to the petitioners which could have been avoided. It would, therefore, be appropriate to award to the petitioners costs of Rs. 15,000/- instead of imposing any fine on the 1st respondents.
80. The 1st respondent is, therefore, directed to pay to the petitioners a sum of Rs. 15,000/- as costs.
81. The Motion is made absolute accordingly.
82. Respondents to pay the sum of Rs. 10,090/- and costs of Rs. 15,000 on or before 5th June, 1989.
83. Order accordingly.