The Municipal Corporation of Greater Mumbai and ors. Vs. Shri Bhikanlal Nanakchand Sharma - Court Judgment

Excerpt:
civil - breach of undertaking - remedy - whether available under order xxxix, rule 2a of the code of civil procedure - suit for permanent injunction by respondent whereby seeking restriction on appellant from demolition of structures - undertaking given by appellant to follow due process of law prior to initiating demolition by issuing notice - subsequently demolition ensued with no prior notice - challenged - appellant subjected to fine with direction to construct new structures for respondents - aggrieved appellant in present appeal - held, order xxxix, rule 2a attracted only in case of disobedience of an injunction order passed under order xxxix, rule 1 or 2 or breach of terms based on which injunction passed - rule not applicable to the final decree of permanent injunction passed at the conclusion of hearing of the suit - neither suit was pending nor any interim injunction was in force in the instant case at the time when demolition took place - action under order 2a penal in nature and was to be construed strictly with benefit of doubt going to offender - remedy chosen by respondent inappropriate - order xxxix, rule 2a not applicable in the instant case - hence punishment not sustainable and impugned order liable to be set aside - appeal allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - on 24th january 1998, the appellants went to me site and demolished the unauthorized structure of the respondent as well the plaintiffs in the other two suits without issuance of any notice. the respondent and other shopkeepers in the line had committed encroachment on the boundary wall on the rear side as well and had erected some unauthorized structures in the front. relying on this assurance and statement of the counsel that notice would be issued the court disposed of the motions as well as the suits. rule 2 of order 39 says that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, at any time, the plaintiff may apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of and the court may by order grant an injunction, on such terms as to the duration of the injunction or otherwise, as the court may think fit. he submitted that the appellants should not be allowed to take advantage of a technicality of order 39 rule 2a not being applicable in a situation like this.d.g. karnik, j.1. heard learned counsel for the parties.2. this appeal is directed against the order dated 7th march 1998 passed by the learned judge of the city civil court, mumbai, holding the appellants guilty of the breach of undertaking given to the court and sentencing them to pay fine of rs. 2000/- under order 39 rule 2a of the code of civil procedure, (for short the c.p.c.').3. the respondent had a shop near mulund checknaka, lbs road, mulund west, mumbai. it appears that in front of the said shop the respondent had carried out some construction illegally, without obtaining the necessary permission of the mumbai municipal corporation, the appellant no. 1 herein. it appears that the citizens in the locality made several complaints to the appellant no. 1 about the unauthorized constructions carried out by the respondent and other shopkeepers having shops in the line of the respondent. apprehending that the appellant no. 1 and its officers would take action of demolition and removal of the unauthorized constructions, the respondent and the other shopkeepers filed three suits, bearing suit nos. 79, 80 and 81 of 1998 against the appellants for an injunction restraining them from demolishing the structures in question. in the suits me respondent and other plaintiffs took out separate motions for interim relief. when the motions came up for hearing on 23rd january 1998 the following order was passed:the learned counsel for the corporation on instructions under letter no. t/25778/wot dated 21.1.98 has pointed out that the corporation will follow due process of law by issuing necessary notices as required by law. accordingly, corporation is decreed to follow due process of law as may be necessary either under section 297 to 301 or 314 or 351 of the bmc act as applicable. the suits are therefore marked as disposed off. notice of motion no. 74 of 1998, 75 of 1998 and 76 of 1998 marked as disposed off as not surviving.(underlining supplied).4. on the next day i.e. on 24th january 1998, the appellants went to me site and demolished the unauthorized structure of the respondent as well the plaintiffs in the other two suits without issuance of any notice. the respondent moved the court again on 27th january 1998 by a motion taken out in his suit which was disposed of on 23rd january 1998 for restoration of the structure which was demolished by the appellant on 24th january without notice and also moved the court for taking action against the appellants in contempt for breach of the undertaking given to the court that the structure would not be demolished except by due process of law by issuing necessary notices as required by law.5. the trial court appointed a court commissioner to inspect the site and make a report and also directed issuance of the notice to the appellants. after considering the report of the court commissioner and the evidence adduced by the parties the trial court came to the conclusion that in breach of the clear undertaking to the court to follow the due process of law by issuing necessary notice, as required by law before demolishing the illegal structures, the appellants had demolished the structure on the very next day without notice and without following the due process of law. in this view of the matter the trial court held that the appellants herein had committed contempt of the court and accordingly ordered the appellants to pay rs. 2000/- by way of fine to each of the plaintiffs in the suits. the trial court further directed that the respondent would be entitled to construct the new structures in place of the demolished structure at his own costs and shall further be entitled to file suit for recovery of damages for loss of property and expenses of reconstruction and for loss of business. the trial court further injuncted the appellants from taking any action in respect of the structures so reconstructed. that order is impugned in this appeal.6. i have heard learned counsel for the parties at length. it is not disputed before me that the respondent was running a shop in the authorized structure. it is however, alleged that in front of the authorized shop the respondent had erected some unauthorized structure and only that unauthorized structure was demolished by the appellants on 24th january 1998. learned counsel for the appellants took me extensively through the affidavit in reply of sahebrao ghadge patil, ward officer, m.m.c., filed in the trial court. in the said affidavit it is alleged that the structure in question was partly falling in the regular line of the street and was unauthorized as per the city survey records. only the unauthorized part of structure which was falling in the line of the street was demolished on 24th january 1998, without touching the authorized shop of the respondent. the respondent and other shopkeepers in the line had committed encroachment on the boundary wall on the rear side as well and had erected some unauthorized structures in the front. there were meetings between the officers of the appellant no. 1, the respondent and other shopkeepers in the line in the beginning of january 1988, wherein the respondent and other shopkeepers had agreed to voluntarily remove the unauthorized structures and therefore action of demolition was stayed for some time. however, instead of abiding by the promise the respondent and other shopkeepers moved the court by filing suits and took out three notices of motion.there was unrest among the citizens in the locality about the delay caused (by the appellants) in taking action for demolition of the unauthorized structures. the citizens were alleging that the officers of the appellant were colluding with the respondent and other shopkeepers and had deliberately deferred action to enable them to obtain injunctions from the court. some citizens threatened to blacken the face of the officers of the appellant no. 1 and therefore it was necessary to take immediate action. it was in these circumstances that it was thought unnecessary to issue any notice before the action. accordingly the action of demolition was taken on 24th january 1998 without issuing any notice. learned counsel for the appellants submitted that in olga tellis and ors. v. bombay municipal corporation and ors. reported in : air1986sc180 a constitution bench of the apex court has held that in cases of urgency which brooks no delay the commissioner can take action under section 314 of the mumbai municipal corporation act, (for short the mmc act) without issuance of any notice. accordingly action was taken under section 314 of the mmc act without any notice. she further submitted that due process contemplated under section 314 of issuance of short notice is subject to the urgency clause and in case of urgency no notice is required to be issued. since there was urgency as there was a threat by the citizens of blackening the face of the officers action was taken without notice.7 in olga tellis' case (supra) the apex court, while upholding the constitutional validity of section 314 of the mmc act has laid down that ordinarily the commissioner is expected to issue a notice before taken action. however, in cases of urgency which brooks no delay and where action is required to be taken immediately on account of urgency, the commissioner can take action without notice. in my view it must not be forgotten that the normal course of due process of law requires issuance of notice before taking any action. taking action of demolition without notice is an exception which can be resorted to only in cases of grave urgency which requires action to be taken forthwith. it is worthwhile to note that on 21st january 1998 counsel for the respondent made a specific statement before the court that the corporation would follow due process of law by issuing necessary notices as required by law (emphasis supplied). the appellants, through their counsel, specifically assured to the court that not only due process of law would be followed but necessary notice as required by law would be issued. relying on this assurance and statement of the counsel that notice would be issued the court disposed of the motions as well as the suits. if the appellants ever wanted to take action without notice on account of urgency they ought not to have made the statement that they would follow due process of law by issuing necessary notices as required by law. in fact they mislead not only the respondent but also the court by giving an assurance that due process of law would be followed by issuing necessary notices. in my view, therefore , the view taken by the trial court that the appellants deliberately committed breach of the undertaking to the court that they would follow due process of law by issuing necessary notices as required by law. the view taken by the trial court is not only a possible view but the correct view in the facts and circumstances of the case.8. after having held that the appellants committed breach of the assurance given to the court by issuing necessary notice, it is required to be seen whether the impugned order could have been passed under order 39 rule 2a of the c.p.c.. on 23rd january 1998 nor only the notices of motion but also the entire suit was disposed of by the court. learned counsel for the appellant submitted that since the suit was disposed of the court had become functus officio. the court could not therefore proceed under order 39 rule 2a of the c.p.c. counsel further submitted that rules 1 and 2 of the order 39 of the c.p.c. enable the court to grant a temporary injunction operative during the pendency of the suit. if an order of a temporary injunction which is to operate during the pendency of the suit is breached an action can be taken under rule 2a of order 39 the c.p.c. however, if the suit is disposed of for any reasons whatsoever the interim order of interim injunction would come to an end. any breach of an order of temporary injunction committed after the decision of a suit cannot be the subject matter of a proceeding under order 39 rule 2a of the c.p.c. if the suit is decreed and permanent injunction is granted then for breach of the order of permanent injunction action under the contempt of courts act can be taken but no action can be taken under rule 2a of older 39 of the c.p.c. in support of his submission learned counsel for the appellant referred to and relied upon a decision of the gujarat high court in gohel prabhatbhai nathabhai v. pandya arwindkumar ambalal reported in : air1987guj160 and a decision of this court in chembur trombay education society v. d.k. marathe, reported in : 2002(3)bomcr161 .9. before considering the aforementioned decisions it would be appropriate to refer to the scheme of order 39 of the c.p.c. order 39 of the c.p.c. relates to temporary injunctions and interlocutory orders. rule 1 of order 39 says that where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors or that the defendant threatens to dispose the plaintiff of otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act. rule 2 of order 39 says that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, at any time, the plaintiff may apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of and the court may by order grant an injunction, on such terms as to the duration of the injunction or otherwise, as the court may think fit. rules 1 and 2 of order 39 thus enable the court to pass interlocutory orders in the nature of injunction which are to operate during the pendency of the suit. orders passed under rules 1 or 2 of order 39 do not operate after the suit is decided. after a suit is finally decided the rights of the parties are governed by the final order passed in the suit. the final order of the court can be executed in the manner provided by the cpc including order 21 thereof. if the final order is of a permanent injunction and it is disobeyed the plaintiff can initiate proceedings under the contempt of courts act but not under order 39 rule 2a of the cpc.10. rule 2-a of order 39 was introduced in the cpc by amending act no. 104 of 1976 with effect from 1st february 1977. prior to the introduction of rule 2-a the trial court before whom a suit is pending had no jurisdiction to punish the defendant if the interim order of injunction passed by it under rules 1 or 2 was not obeyed by the defendant. the aggrieved plaintiff in that case was required to move the high court for an action in contempt under the contempt of courts act. in order to give power to the trial court to punish the erring defendant committing breach of an interlocutory order rule 2-a was introduced in order 39 of the cpc. it reads thus:2-a consequence of disobedience or breach of injunction:(1) in the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the court granting the injunction or making the order, or any court to which the suit of proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.(2) no attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience of breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.11. bare perusal of rule 2-a of order 39 would show that it is attracted only in case of disobedience of an order of injunction of any other order made under rule 1 or rule 2 or breach of the terms on which the injunction was granted or order was made. rule 2-a of order 39 of the c.p.c. does not apply to the final order decree of permanent injunction passed by the court at the conclusion of the hearing of the suit. it is also doubtful whether rule 2-a would apply for breach of an undertaking given to the court. action under order 39, rule 2-a can be taken only where there has been a breach of an order of interim injunction passed under order 39 rule 1 or 2 of the c.p.c. in the present case, admittedly, the suits were disposed of by the court on 23rd january 1998. no suit was pending on 24th january 1998 when the action was taken by the appellants. there was no interim injunction in force in the suit granted under rule 1 or 2 of injunction in force in the suit granted under rule 1 or 2 of order 39 in force on 24th january 1998 when the action of demolition was taken. there was therefore no breach of an order of injunction operative during the pendency of the suit. therefore, it cannot be said that the appellant had committed breach of an order of injunction or even and undertaking operating during the pendency of the suit. rule 2-a of order 39 of the c.p.c. therefore was not attracted.12. in gohel's case (supra) the high court has held that rule 2-a of order 39 applies only in respect of temporary injunction which is granted either under rule 1 or rule 2. the argument that rule 2-a would apply for a breach of a permanent injunction granted at the time of passing of the decree was rejected by the gujarat high court. in chembur trombay education (supra) single judge of this court also took a similar view. this court has held that the motion under order 39 rule 2-a can lie only in respect of breach of an interim relief, pending the suit. after the suit is disposed of this court becomes functus officio and has no jurisdiction to entertain a motion under order 39 rule 2a of the c.p.c. i am in respectful agreement with the views expressed in the aforementioned cases.13. learned counsel for the respondent submitted that the appellants had given an undertaking to the court that they would follow the due process of law including issuance of necessary notice as required by law. they have committed breach of this undertaking. they have tricked not only the respondent but also the court by making it believe that the structures in question would not be demolished without any notice and therefore the action taken against the appellants by the court was proper. he submitted that the appellants should not be allowed to take advantage of a technicality of order 39 rule 2a not being applicable in a situation like this. the appellants must be punished for the breach. action under rule 2a of order 39 of the c.p.c is penal in nature. penal provision must be strictly construed and benefit of doubt must go to the offender. it is true that the appellants have pulled a first one on the respondent by giving an undertaking that the structure would not be demolished except by due process of law by issuance of necessary notice. the respondent however, chose a wrong remedy. he could have filed a petition under the contempt of courts act in this court. the remedy chosen was inappropriate. rule 2a of order 39 of the c.p.c. in terms is not applicable and therefore punishment cannot be sustained, in the circumstance the appeal is required to be allowed and is accordingly allowed. the impugned order is set aside. it is however clarified that the respondent is free to take such other action as he may be entitled in law against the appellants.p.c.:this appeal is directed against the same order which has been impugned in appeal no. 288 of 1998. hence for the reasons recorded in the order passed today in appeal no. 288 of 1998 this appeal is also allowed with liberty to the respondent to take such action against the appellant and its officers as may be allowed under the law. he is free to take such other action as may be just in law against the appellants.