Bombay Environmental Action Group & Anr
Vs. The Municipal Corpn. of Pune & Ors  INSC 209 (7 February 1996)
K.Ramaswamy, K.Hansaria B.L. (J)
JT 1996 (2) 470 1996 SCALE (2)312
O R D
have heard the counsel on both sides.
contempt proceedings sought to be taken out against the
respondents-builders/developers on the ground that the order passed by the High
Court on 23.3.1992 in Writ Petition Nos.923/92 and 5710/91 has been violated on
the premise that in spite of the injunction order granted in terms of para (f)
extracted in the impugned order, the developer is proceeding with the
construction in plot No.57, the prayer was turned down by the High Court. It is
an admitted fact that two civil suits came to be filed by the owner, R.M. Mulla
Trust, in the civil Court and those suits now stand decreed. As at present the
decrees are not subject matter of any appeals. Under these circumstances, the
High Court proceeded on the footing that when there is a valid decree passed by
civil Court to proceed with the construction of the flats in plot No.57, the
action taken by the builder is not in violation of the order of the High Court.
Which so holding the Division Bench in the impugned order also pointed out
are, however, not inclined to hold that there is any contempt or that any
restraint order is necessary." In view of that finding the contempt
proceedings were closed holding that whatever construction is done would be
subject to the final orders in the writ petitions.
Subramaniam, learned senior counsel, contended that though the owner of the
land, namely, M/s. R.F. Mulla Trust, has been given the right to the developer
to construct the building in accordance with law, yet the construction, is in
violation of law. The appellants approached the High Court that the builders
are causing environmental degration and the matter is pending. Interim
injunction was issued restraining the builders to proceed with the construction
except in accordance with the certificate issued by the Collector and the rules
contained in Appendix 'S' to the Development Control Rules for Pune. The owner
had secured injunction in the civil suit by way of a declaration on a
misrepresentation that the writ petition pending in the High Court were
disposed of and that there was no stay granted by the High Court to proceed
with the construction in plot No.57. It is contrary to the record, namely, writ
petitions are pending and injunction order is still subsisting.
the appellant is not a party to the proceedings in the suit, the developer, who
got his right from the owner and proceeded pursuant thereto, is also bound by
the orders of the High Court where he is eo-nominee party respondent. The High
Court ought to have taken serious view of the matter as the procedure adopted
in the civil suit is nothing but to circumvent the orders of the High Court. In
that perspective, the High Court ought to have taken serious note of the
violation of its orders and proceeded for contempt in accordance with law.
be, as contended by Shri Gopal Subramaniam the view is possible. But the High
Court was not inclined to pursue further action against the developer and held
that it was not in violation of the High Court's orders. In the view the High
Court had taken, we do not think that it is a case for us to interfere.
it would be open of the appellants to seek such remedy as is available under
law to have the decrees of the civil court assailed in an appropriate forum and
seek such directions as may be deemed necessary to be consistent with the
orders of the High Court so long as the writ petitions are pending. We do not
make any further observations in this regard.
the learned Senior counsel appearing for the respondents, in fairness has
stated that the High Court did not intend to vary the order of interim
injunction granted in terms of prayer (f)'. He contended that the respondent is
proceeding only in accordance with the rules contained in appendix 'S' to the
Development Control Rules for Pune and the certificates given by the Collector
and that his proceeding with the matter is not in violation of the order
granting injunction on 23.3.1992. We are not concerned with that controversy in
this case. If there is anything, appropriate action would be in the High Court
made clear that so long as the order of injunction granted by the High Court on
23.3.1992 is in force and is allowed to remain in force, no construction can be
made contrary to the directions contained therein. Any construction should be
only consistent with the order and no further order.
also make it clear that the observation made by the High Court that "we
are, therefore, prima facie of the opinion that initiation of the buildings on
plot No.57 does not appear to be in breach of the rules" does not warrant
such a finding in the contempt proceedings.
appeal is disposed of with the above observations. No costs.