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Fatima Begum Vs. the Commissioner of the Hyderabad Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1958CriLJ349
AppellantFatima Begum
RespondentThe Commissioner of the Hyderabad Municipal Corporation
Excerpt:
.....or the respective advocates our best consideration and we are of the opinion that the grounds on which construction of the cinema hall was not allowed are not covered by the said rule 4 under which the corporation is empowered to refuse permission, the primary considerations for the grant should be public health and public safety. that apart, where one of the applicants secured an order hi her favour in a proceeding to which the municipal corporation was a party, directing it to give to her a permit to construct a building, the obvious duty of the commissioner was to give her the permission and direct the other party disputing her title to go to a civil court, instead, for reasons best known to him, the commissioner gave the permission to mrs. the action of the commissioner in the..........did not give the permission to the petitioner but, by order dated 8-5-1957 gave permission to mrs. lakshmi gunti to construct a structure on the plot in question. the said order of the commissioner was made in flagrant violation and disobedience of the order of the high court and the respondent, who made that order, unless we accept his explanation, would certainly be guilty of gross contempt of court.3. the respondent explains his conduct by stating that, after the high court disposed of the writ petition, mrs. lakshmi gunti applied for permission to construct a building on the plot on the basis of title acquired by her subsequent to the order and that after giving notice to the petitioner and after satisfying himself about the merits of mrs. lakshmi gunti's claim, he bona fide came to.....
Judgment:

Subba Rao, C.J.

1. This is a petition under B. 5 of the Contempt of Courts Act to punish the respondent for contempt of the orders of the High Court of Hyderabad.

2. The petitioner took a permanent lease of a plot of land bearing No. 24 and measuring 6452 Sq. yds. situated in Khairtabad, Hyderabad under a registered lease deed dated 2nd July 1948. In the year 1949. she applied to the Commissioner, Hyderabad Municipal Corporation, for permission to construct a cinema hall in the said plot. After correspondence, the said Municipal Corporation did not give the permission. Thereupon, she filed a petition under Article 226 of the Constitution of India in the High Court of Hyderabad for the issue of a writ of mandamus directing the respondent, the Commissioner of Hyderabad Municipal Corporation, to grant her the necessary permit. A Division Bench of the Hyderabad High Court consisting of the Chief Justice and Srinivasa Chari J. made an order dated 26-7-1956 allowing the writ petition.

They directed the Commissioner to grant permission to the petitioner to put up a cinema hall as prayed for by her, subject to such conditions under the rules as he may think fit and proper, having regard to public safety and public health. Though the said order in explicit and clear terms directed the Commissioner to grant the petitioner permission to put up a cinema hall, the Commissioner not only did not give the permission to the petitioner but, by order dated 8-5-1957 gave Permission to Mrs. Lakshmi Gunti to construct a structure on the plot in question. The said order of the Commissioner was made in flagrant violation and disobedience of the order of the High Court and the respondent, who made that order, unless we accept his explanation, would certainly be guilty of gross contempt of Court.

3. The respondent explains his conduct by stating that, after the High Court disposed of the writ petition, Mrs. Lakshmi Gunti applied for permission to construct a building on the plot on the basis of title acquired by her subsequent to the order and that after giving notice to the petitioner and after satisfying himself about the merits of Mrs. Lakshmi Gunti's claim, he bona fide came to the conclusion that Mrs. Lakshmi Gunti was in possession of the plot and therefore, he gave permission to her. The question is whether this explanation can be accepted.

4. it would be convenient at this stage to briefly notice the history of the dispute between the petitioner and the Municipal Corporation, Hyderabad, and the events that happened subsequent to the order of the High Court and which culminated in the order in question passed by the Commissioner, One Wajiullah Israfi executed a registered perpetual lease deed dated 2-7-1948 in respect of the site in question for a sum of Rs. 9,142-4-0. On the basis of the said lease deed the petitioner in the year 1949, applied to the Commissioner for permission to construct a cinema hall. Along with that application, she submitted a true copy of her title deed, the blue prints of the lay-out plans, the plan of the proposed construction and other necessary particulars. After protracted correspondence dragging on for a number of years, the permission sought (or was refused on grounds of public health.

5. Her application to the Minister for Local Self-Government was also rejected on 15-10-1955. Thereupon, she filed a petition under Article 226 of the Constitution of India in the High Court of Hyderabad for issuing a writ of mandamus against the Hyderabad Municipal Corporation for directing it to give the necessary permission to the petitioner. In the petition, it was alleged that the Municipal Corporation, made the order refusing permission actuated by malice and influenced, by extraneous circumstances

Apart from denying the said allegations made against it, the Municipal Corporation also raised two preliminary objections, namely, that there was inordinate delay in filing the petition and that the petitioner had an effective alternative remedy to get the same relief by filing a suit. Both the preliminary objections were overruled and, on the merits, the High Court held that the petitioner would be entitled to get the permission subject to such conditions as would be necessary in the interests of public health and safety. In the course of the judgment, the High Court made the following observations:

The correspondence would show that the Corporation had no reason to doubt the title of the petitioner.

Then, they proceed to state:

We have given the arguments or the respective advocates our best consideration and we are of the opinion that the grounds on which construction of the cinema hall was not allowed are not covered by the said Rule 4 under which the Corporation is empowered to refuse permission, The primary considerations for the grant should be public health and public safety. Having due regard to these considerations, the corporation could grant permission to the petitioner imposing such conditions as would be necessary in the interests of public health and public safety.

6. This order was made on 26-7-1956. On 26th September 1956 i.e., some time after the disposal of the writ petition by the High Court, Mrs, Lakshmi Gunti applied to the Corporation for permission to construct a building on the said plot. She relied upon a lease deed dated 14-8-1958 executed in her favour by one Nooruddin Israri, son of the original owner and also on certain correspondence that passed between her and the petitioner. After the receipt of the application of Mrs. Lakshmi Gunti, the respondent issued a notice to the petitioner on 13-10-1956 calling upon her to appear and show cause why Mrs. Lakshmi Gunti's application should not be allowed.

The petitioner denies that she received this notice. On 13-3-1957 she submitted an application to the respondent enclosing a certified copy of the judgment in the writ petition and requesting that necessary permission might be granted in terms of the order without further delay. On 10-4-1957 the Commissioner gave a notice to the petitioner asking her to furnish the information called for in his earlier letter dated 13-10-1956. The respondent stilted that, as the petitioner did not appear before him on 12-4-1957 he, on a consideration of the material placed before him and after satisfying himself that Mrs. Lakshmi Gunti was in possession, gave the permission to her.

On 19-4-1957, the petitioner furnished all necessary particulars to the Commissioner and also informed him that all the necessary papers were already given to him even along with her original application. She also stated that the claim of Mrs. Lakshmi Gunti was untenable, that the Municipal Corporation had no power to adjudicate upon any dispute regarding title and that, in any view, he was bound to follow the order of the High Court. She also filed a similar petition to the Mayor, who passed a stay order and directed the respondent to hear the parties on 1-5-1957, The petitioner again sent an application dated 30-4-1957 bringing home to the Commissioner the fact that, in view of the High Court's order, he was bound to give permission to her. The stay order was vacated on 7-5-1957. Finally, the respondent says that, as ownership changed hands subsequent to the decision in the writ petition, he following strictly the order of the High Court, gave the permission to Mrs. Lakshmi Gunti.

7. learned Counsel for the respondent relies upon Sections 428, 429 and 431 of the Hyderabad Municipal Corporations Act, 1955, In support of his contention that a Commissioner is bound to decide a dispute on a question of title and that as Mrs. Lakshmi Gunti set up title against the petitioner, the Commissioner in exercise of the power conferred upon film under those sections bona fide decided the dispute in favour of Mrs. Lakshmi Gunti. The material portions of these sections read:

Section 428 : (1) Every person who intends to erect a building shall give to the Commis- sioner notice of his said intention in the form obtained for this purpose under Section 435, specifying the position of the building Intended to be erected, the description of the building, the purpose for which it is intended, its dimensions and the name of the person whom he intends to employ to supervise its erection.

Section 429: (1) At any time within 30 days after receipt of any notice under Section 428, the Commissioner may by written notice, require the person, who has given, the notice first hereinbefore in this section mentioned to furnish to the Commissioner all or any of the following documents:

Section 431 : If the notice given under Section 428 and the documents, if any, furnished under Section 429 do not supply all the information which the Commissioner deems necessary to enable him to deal satisfactorily with the case, the Commissioner may, at any time within 30 days after receipt of the said documents, by written notice require the production of such further particulars and details as he deems necessary.

The aforesaid provisions are part of the building regulations and they are intended to enable the Commissioner to get the necessary information before giving permission. They do not either expressly or by necessary implication authorise the Commissioner to decide questions of title between contending applicants. That apart, where one of the applicants secured an order hi her favour in a proceeding to which the Municipal Corporation was a party, directing it to give to her a permit to construct a building, the obvious duty of the Commissioner was to give her the permission and direct the other party disputing her title to go to a Civil Court, Instead, for reasons best known to him, the Commissioner gave the permission to Mrs. Lakshmi Gunti, who is alleged to have acquired title after the High Court's order and directed the person in whose favour the High Court made an order to go to a Court. By no stretch of imagination, even if the Commissioner had power to decide questions of title, his order could be considered to be bona fide in the circumstances.

8. From the aforesaid discussion, the following facts emerge. The petitioner on the basis of her title acquired in 1948 applied to the Municipal Corporation for permission to construct a cinema hall in the plot in question. That application dragged on for 8 years and finally the Municipal Corporation rejected it. In a writ petition to which the Municipal Corporation was a party, the petitioner obtained from the High Court a mandate directing the Municipal Corporation to give the permission. Instead of obeying the order, as it should, the Commissioner not only disobeyed the order of the High Court but gave the permit to another party on the basis of title alleged to have been acquired by her subsequently. The action of the Commissioner In the circumstances, we are satisfied, is not bona fide. We must, therefore, hold that the Commissioner is guilty of a gross act of contempt.

9. learned Counsel for the respondent offered to tender apology on behalf of his client Section 4 of the Contempt of Courts Act reads:

Save as otherwise expressly provided by any law for the time being in force, a contempt of Court may be punished with Simple imprisonment for a term which may extend to six months; or with fine, which may extend to two thousand rupees, or with both.

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court....

It is true that if the apology is sincere and satisfactory, Courts will not hesitate to accept the same in proper cases. But, in this case, the respondent did not offer to give any unconditional apology in his counter affidavit. Instead he attempted to defend his action. But when we expressed our opinion against his client the learned Counsel offered to tender an apology at the fag end of his argument. Apart from the fact that the gross act of contempt committed in this case cannot be purged by an apology, we are also satisfied that it is neither sincere nor satisfactory.

10. We cannot accept the belated attempt to give an apology. The act of contempt was committed not by an ignorant villager but by an experienced civil servant of the State. In our experience, we have never come across a case of a civil servant ignoring the mandatory direction of a High Court and making an order in direct violation of it. Ordinarily, such an act calls for the maximum punishment 'of imprisonment that can be imposed under the Act. But, in this case we are refraining from doing so for the following reasons.

11. The fact of contempt committed by him is in respect of a High Court that had ceased to exist from 1st November, 1956. The respondent, though an experienced officer belonging to the Indian Administrative Service, was trained in an authoritarian set-up and has not obviously got himself tuned to democratic ways. Though we have not accepted his belated attempt to tender an apology, we are also taking that into consideration, in imposing punishment. Having regard to the aforesaid circumstances, we impose a light punishment of a fine of Rs. 100/. with the hope that the respondent will not commit such acts in future.

12. The respondent will pay the costs of petitioner advocate-fee Rs. 100/-.


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