EARTH DESIGNERS AND DEVELOPERS PRIVIT LIMITED Vs. M K PATIL ADMINISTRATOR GENERAL AND OFFICIAL TRUSTEE OF MAHARASHTRA STATE

JUDGEMENT

(1.) THIS petition was placed for hearing at the stage of show cause notice to the respondent, calling upon the respondent to show cause as to why action under the provisions of Contempt of Courts Act, 1971 should not be initiated against him. The backdrop in which the present petition has been filed is that, the respondent is the administrator General and official Trustee (sole trustee) of Shree Venkatesh Balaji Temple property situate at Banganga Road, Walkeshwar Road, Mumbai. The petitioner company was intending to purchase the Trust property for which trustee and the petitioner executed Memorandum of Understanding. However, as the property belonged to the public trust, approval from the High Court under the provisions of Official Trustees Act, 1913 was required to be obtained. For that purpose, Trust Petition No. 5 of 1995 was instituted in this Court. Besides, the said trust petition, one writ petition was filed by the third parry questioning the proposed sale in favour of the petitioners on various grounds. It is not relevant to advert to those proceedings in detail. Suffice it to mention that the said trust petition and the writ petition eventually came to be disposed of by order dated 8-8-1997 by the Division Bench of this Court. The order records that the petition was disposed of in terms of the settlement arrived at between the parties. It is not in dispute that the respondent, however, later on moved a formal praecipe for speaking to minutes stating that the recording of fact by this Court in order dated 8-8-1997 that the parties have entered into terms of settlement was inaccurate. Pursuant to the said praecipe, it is not in dispute that, the Court recalled that part of the order-meaning thereby the trust petition as well as writ petition was disposed of by the Court as per the Minutes of order which in essence is order passed by the Court and not as per the settlement terms. According to the petitioner, following are the relevant clauses under which the respondent was under an obligation to take necessary steps so as to conclude the transaction in question, which read thus :

(2.) WHEREAS, it is alleged that, the respondent instead of taking steps in furtherance of the said Minutes of the order took stand by letter dated 19-9-1997, that only 2294 sq. ft. of the F. S. I, was sold to the petitioner; which, according to the petitioners, was directly contrary to the order dated 8-8-1997. On receipt of the said letter immediately the petitioners responded by advocate's letter dated 20-9-1997 asserting that the stand taken by the respondent was improper. According to the petitioners instead of taking corrective steps, the respondent by another letter dated 22-9-1997 threatened-wrong-fully, illegally, in breach, violation and disobedience of the order of this Court, to cancel the Power of attorney which was already issued in favour of the petitioners. Once again the petitioners by Advocate's letter dated 27-9-1997 brought to the notice of the respondent that the stand taken by him was improper and to take corrective measures. According to the petitioners, the respondent did not make any improvement but continued with his wrongful campaign and by letter dated 4-10-1997 purported to suggest that the transaction be cancelled which was in complete disobedience of the directions of this Court, referred to above. It is stated that the petitioners once again by advocate's letter dated 10-10-1997 recorded correct fact and cautioned the respondent that the action on the part of the respondent was contumacious which could invite contempt proceedings against him. It is further stated in the petition that, the respondent continued to take the same wrongful position and adopted obstructionist attitude, thereby depriving the petitioners to avail of the order passed by this Court dated 8-8-1998. Reference has been made to several correspondence exchanged between the parties in respect of the stand taken by both the sides. It is also stated in the petition that the respondent thereafter, proceeded to file Special Leave Petition before the Supreme Court and in the affidavit filed before the Supreme Court reiterated his wrongful contention which was inconsistent and contrary to the order passed by this Court dated 8-8-1997. Even the Supreme Court dismissed the said special Leave Petition on 27-7-1998 thereby putting the entire controversy at rest. It is stated that, inspite of that, the respondent continued with his wrongful act against the petitioners for ulterior reasons and maintained his obstructionist attitude against the petitioners instead of complying with the directions under the order passed by this Court on 8-8-1997. Once again the petitioners by Advocate's letter dated 1-8-1998 called upon the respondent to take corrective measures. From the averments in the petition, it appears that, this is the last communication which was sent by the petitioners to the respondent. Thereafter, it is only sometime in February 2002 the matter appears to have got activated on receipt of some communication by the petitioners from MHADA dated 1-2-2002. On receipt of that letter the petitioners again pursued the matter and eventually have filed the present contempt petition in this Court on 29-4-2002, It is mentioned in para 10 of the petition that the respondent is in continuous contempt of the order passed by this court dated 8-8-1997, inter alia, by alleging that the power of attorney already executed in favour of the petitioner is revoked and/or is cancelled; by obstructing/obtaining of the T. D. R. potential of the said property and in place of rendering co-operation to the petitioner obstructing the petitioner in obtaining the said T. D. R. , potential of the said property by adverse means including and inter alia by writing communication to the concerned authorities as also tenants of the said chawl. In this backdrop, petition has been filed under the provisions of Contempt of Courts Act, 1971, as can be discerned from the title of the petition for the following reliefs. "the petitioner in the circumstances prays:

(3.) IN response to this petition a detailed reply affidavit has been filed by the respondent who is the Administrator General and Official Trustees in respect of the said Trust. The said affidavit narrates all the events in chronological order. The affidavit clearly indicates that in view of certain developments after the order of this Court dated 8-8-1997, the power of attorney came to be revoked and cancelled on 7-4-1998 and communication in that behalf was duly sent to the petitioners. As a matter of fact, the petitioners have also relied upon that communication which is marked Exh. "6". Besides cancellation of the power of attorney, the respondent caused to give public notice which has been annexed at Exh. 7. The background in which the respondent was constrained to take that step has been stated in the reply affidavit particularly in para 36 of the reply affidavit. According to the respondent, the petitioners were exploiting the situation and were taking wrong stand and, in fact, acting beyond the authority given to them. It is relevant to note that although petitioners have made reference to the action of the respondent of revoking and/or cancelling the power of attorney in para 8 of the petition but have not mentioned the date of that action but proceed to contend that, it was not open to the respondent to revoke and/or cancel the power of attorney which was already granted without the permission and approval of this Court.