The Karnataka High Court has held that while exercising the contempt jurisdiction court can give directions to remove the work, which was undertaken inspite of the specific order of the Court.
A division Bench of Justice Ravi Malimath and Justice H P Sandesh while sentencing one Suresh Kothari to undergo simple imprisonment for a period of two months under the Contempt of Courts Act and directed to pay a fine of Rs.2,000 the Registry. Also directed the accused to remove the Illegal construction made within one month from the date of receipt of a copy of this order. Case background:
Kishin Panjabi had filed an suit in 2015 before the civil court seeking directions to the accused to restore the water connection and for temporary injunction. The trial court directed restoration of water but refused injunction against construction. Panjabi then moved High Court. The accused challenged order direction restoration of water connection.
High court by order dated June 8, 2017 directed the accused herein to stop the construction activity in the schedule property. However, the accused despite the said order, continued with the construction and willfully disobeyed the order of this Court. Hence, the present contempt petition is filed.
The complainant if thinks that there is any violation of the aforesaid orders, the complainant ought to have moved for disobedience orders before the Learned Single Judge under Order 39 Rule 2A of Code of Civil Procedure and that the present complaint for contempt is not maintainable at all. When there is an alternative remedy available in respect of the alleged violation of the orders of this Court, the contempt petition is not maintainable. Hence, the same is to be dismissed.
The other contention is that the allegations made by the complainant that the construction activity is still going on in utter violation of this Court order are all false and the same are categorically denied. It is further contended that since the date of passing of the order no construction, repairs, alterations, changing, or otherwise of whatsoever nature is done over the second floor, namely the third floor. Complainant tendered photographs and examined himself to prove the charges:
It was argued that "Inspite of the specific order of this Court, the accused has proceeded with the construction work. The photographs clearly establishes that the accused has continued with the construction. Hence, the accused has committed willful disobedience of the order of this Court. it is also the duty of the courts to maintain their dignity and majesty of law. Hence, the courts should not hesitate to exercise the power of punishment, if it is so required in the interest of administration of justice and compliance with Court orders.
"This Court has to examine in order to invoke Contempt Act, it is necessary to see the ingredients of Section 2(b) of the Contempt of Courts Act. It requires that there must be a willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a Court. On perusal of the photographs, it is clear that the work was undertaken subsequent to the status quo order. Hence, it is clear that the act of the accused is nothing but willful disobedience of the order of the Court."
Relying upon the judgment of Apex Court in the case of DELHI DEVELOPMENT AUTHORITY v. SKIPPER CONSTRUCTION CO. (P) LTD. AND ANOTHER. It is held therein that the contemnor should not be allowed to enjoy or retain the fruits of his contempt.
The bench said "In view of the discussions made above and the principles laid down in the judgments referred supra, we are of the opinion that the accused has to be sentenced for willful disobedience of the order of this Court and also a direction has to be issued to the accused to remove the work, which was undertaken subsequent to the order of status quo and also the extension of the interim order."
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