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Judgment
The complaint to draw the contempt proceeding under Section 12 of the Contempt of Courts Act, 1971 for showing wilful disobedience to the order dated 27.11.2006 was taken into cognizance after affording opportunity to the respondents to file their response in respect of the allegations made in the complaint [the petition]. After the response was filed and the wilful disobedience was denied by the respondents No.2, 3 and 4 in particular, this court primafacie satisfied that there are materials to frame the charge against those respondents. Accordingly, on 10.11.2017 against the respondents No.2, 3 and 4 the following charge had been framed :
"That all of you, on 24.4.2016, along with hundreds of members of Tripura Police/Paramilitary Forces appeared at Agartala-Bishalgarh Highway and by using cranes and bulldozers dismantled the front portion of Monihar Market situated at Bordowali, Agartala from the ground floor to the 3rd floor of the building contrary to the interim order dated 9.6.2006 passed by this Court in WP(C) No.248 of 2006 directing maintenance of status quo as on the date of the order with respect to the subject matter of the writ petition and the subsequent order dated 27.11.2006 directing you to ensure protection of the possession of the said Plot No.53 and the said building standing thereon in terms of the two decrees dated 9.8.2001 passed by the learned Civil Judge, Jr. Division, Court No.1, Agartala in T.S.No.82 of 1997 and T.S. No.85 of 1997.
Such acts of commission or omission amount to willful disobedience to the judgment/direction/order passed by this Court punishable under Section 12 of the Contempt of Courts Act, 1971.
All of you are hereby directed to be tried by this Court for the aforesaid charge."
The respondents No.2, 3 and 4 respectively Dr. Milind Ramteke, District Magistrate and Collector, West Tripura, Sri Manik Lal Das, Sub-Divisional Magistrate, Sadar and Smt. Harsita Biswas, Executive Officer, Agartala Municipal Corporation, City Centre Agartala denied the allegation of committing contempt of any order of the court, particularly, the interim order dated 09.06.2006 delivered in WP(C)No.248 of 2006 directing to maintain the status quo as on the date of the order and the subsequent order dated 27.11.2006 directing to ensure protection of the possession over C.S. Plot No.53 and the building standing thereon, in terms of two decrees dated 09.08.2001 passed by the Civil Judge, Junior Division, Court No.1, Agartala in T.S.No.82 of 1997 and T.S. No.85 of 1997.
For purpose of reference, it would be appropriate to reproduce the order dated 09.06.2006 delivered in WP(C)No.248 of 2006 and accordingly, it is reproduced hereunder :
"Heard Mr. A.K. Bhowmik, learned Senior Counsel for the petitioners, and Mr. S. Chakraborty, learned Govt. Advocate, appearing on behalf of the respondent Nos.1,2 and 3.
Let a notice issue calling upon the respondent to cause as to why a Rule should not be issued as prayed for; and/or as to why such further order or other orders shall not be passed as to this court may seem fit and proper.
The notice is made returnable after three weeks.
No formal notice need be issued on behalf of respondent Nos.1,2 and 3 as they have entered appearance through their engaged counsel. Issue notice to the respondent No.4 by registered post with Ad as well as by ordinary post. The petitioners shall take steps within two days.
Issue also notice on the prayer for interim directions, which the petitioners have sought for making the same returnable after 16th June, 2006.
No formal notice need be issued on behalf of respondent Nos.1,2 and 3 as they have entered appearance through their engaged counsel. Issue notice to the respondent No.4 by registered post with AD as well as by ordinary post. The petitioners shall take steps within two days.
In the interim, it is directed that until returnable date, the status quo, as on today, shall be maintained by the parties in respect of the property, which forms the subject-matter of controversy in the present writ petition."
By the final order dated 27.11.2006, the writ petition being WP(C)248 of 2006 was disposed of, by ensuring protection of possession on the land and the building on Plot No.53 in terms of two decrees dated 09.08.2001 passed by the Civil Judge, Junior Division, Agartala in T.S.No.82 of 1997 and T.S.No.85 of 1997. With the said final order, the interim order dated 09.06.2006 has merged which is in the centre stage of controversy. The entire text of the order dated 27.11.2006 is extracted for purpose of reference :
"Heard Mr. A.K. Bhowmik, learned sr. counsel assisted by Mr. S.Ghosh, learned counsel for the writ petitioners. Also heard Mr. A.Ghosh, learned counsel for the respondent No.4-the Executive Officer, Agartala Municipality and Mr. S.Chakraborty, learned counsel for the State respondents.
The two writ petitioners have filed the present petition seeking for compliance with the two judgments and decrees dated 9.8.01 passed by the learned Civil Judge, Jr. Division, Agartala in T.S.No.82 of 1997 (filed by the petitioner No.1) and also T.S.No.85 of 1997 filed by Arun Chandra Dutta from whom the two writ petitioners have purchased the decretal land.
At the very outset, it may be appropriate to extract the schedule of the land mentioned in the two decrees on the basis of which the present writ petition is set up.
"District-West Tripura, Sub-Division-Bishalgarh, Mouja-Pratapgarh, Sheet No.1, Khatian No.3835, Plot No.53/7803 and 53/7804, Municipal Holding NO.899/511/W-8 bounded by North-Arun Ch. Dutta, South-Municipal road, West-Usha Rani Chakraborty, West-Agartala-Bishalgarh road, land measuring 7 decimal. District-West Tripura, Sub-Division-Bishalgarh, Mouja-Pratapgarh, Sheet No.1, Khatian No.3836, Plot No.53/7805 and 53/7806, Municipal Holding No.889/C/514-W-8 bounded by North-Sri Nanda Gopal Gope (Ghosh) South-Ardhendu Bikash Das, East-Usha Rani Chakraborty, West-Agartala-Bishalgarh road, land measuring 7 decimal."
From the two schedules of land mentioned as above, it is apparent that the claim of the writ petitioners is in respect of plot Nos.53/7803, 53/7804, 53/7805 and 53/7806, all four parts being part of Plot No.53. The writ petitioners are apprehending that the possession of the writ petitioners in respect of the aforesaid land would be disturbed on the basis of action initiated by the respondent-authorities. The Agartala Municipal Council as well as the State respondents have filed counter affidavits categorically indicating that they would abide by the two judgments and decrees on the strength of which the writ petitioners are claiming right, title and interest over 4 separate parts of land under Plot No.53. The further stand taken in the counter affidavit is that the building constructed by the writ petitioners in the Plot No.53 with due permission of the Municipality as per the approved site plan shall also not be disturbed by the respondent-authorities. However, the respondent-authorities are proposing to carry out certain development works and construction over Plot No.52, over which the writ petitioners are not making any claim.
Mr. Bhowmik has submitted that the petitioners have made the construction over Plot No.53 by scrupulously complying with the approved site plan and has not made any construction in deviation of the approved site plan. The assurance of the respondents made in the counter affidavit that they would not disturb or the construction made by the writ petitioners on Plot No.53 as per the approved site plan is taken note of.
In view of above, this case is disposed of with a direction that the respondents shall ensure protection of the possession and of the land and the building constructed by the writ petitioners on Plot No.53 in terms of the 2 decrees dated 9.8.01 passed by the learned Civil Judge, Jr. Division in T.S.No.82 of 1997 and T.S.No.85 of 1997. The respondent-authorities would also not disturb the enjoyment of the building by the writ petitioners constructed as per the approved site plan on the said Plot No.53. However, the respondent-authorities are at liberty to make construction or development in Plot No.52 which is not covered by the two decrees obtained in T.S.Nos.82 and 85 of 1997."
It clearly appears that the respondents were directed to ensure protection of the possession of the land and the building constructive by the complainants [the petitioners] on plot No.53 in terms of the two decrees dated 09.08.2001 delivered in T.S.82 of 1997 and T.S.85 of 1997. There is no dispute that the respondents were further directed not to disturb enjoyment of the building by the writ petitioners constructed as per the approved site plan on the said plot No.53. It is apparent that the liberty was given to the respondent-authorities to make construction or development on/of plot No.52 which is not covered by those two decrees issued in T.S.82 and T.S.85 of 1997.
In the decree dated 09.08.2001, the title of the plaintiff [Ardhendu Bikash Das] over the suit land under C.S. Plot No.53/7803 and 53/7804 which are bounded on the West by the land under C.S. Plot No.52 was declared. Possession of the plaintiff over the suit land was also confirmed that the defendants were restrained permanently from entering into the aforesaid land to interfere with the possession of the plaintiff thereon. The said decree dated 09.08.2001 in T.S.82 of 1997 has reached its finality. The decretal land in T.S.No.82 of 1997 is as under :
"District-West Tripura, Sub-Division-Bishalgarh, Mouja,Pratapgarh, Sheet No.1, Khatian No.3835, Plots No.53/7803 & 53/7804 Municipal Holding No.899/511/W-8 bounded by North-Arun Ch. Datta, South-Municipal road, West-Usha Rani Chakraborty, West-Agartala Bishalgarh road, land measuring 7 decimal."
The case that has been unfolded by the complainant [the writ petitioners] is that in the course of construction of the flyover over the Agartala-Bishalgarh road a special drive was taken to clear the encroachment of the main road. On 24.04.2016, the respondents No.2 to 4 with huge enforcement dismantled the front portion of the market namely Monihar Market from the ground floor to the third floor of the building defying the protest of the petitioners [the complainants]. Defying the order of protection as granted by this court, by the order dated 27.11.2006, the respondents No.2, 3 and 4 were present in person while the said demolition drive was being carried out. For the said drive, the petitioners have suffered irreparable loss and injury and they have been thrown out of their occupation and earnings. In para-5 of the complaint, the petitioners have stated that the Civil Court based on the Survey Commissioners Report and the order passed by this High Court restrained the respondents from interfering with the possession of building constructed on plot No.53 and from the construction on the basis of the Municipal approved plan which shows that the construction was made on plot No.53. Even after the order passed by the Hon'ble High Court, the Municipal Corporation had granted permission for raising further construction over the two-storeyed building. According to the complainants, such permission was granted on due survey. According to the complainants, the respondents No.2, 3 and 4 did not have any scope to ascertain that any portion of the said building did not appertain to plot No.53. In the pre-inductment stage, the respondents filed the reply along with the relevant documents and asserted that in the writ petition No.248 of 2006, the writ petitioners claimed right in respect of plots No.53/7803, 53/7804, 53/7805 and 53/7806. All the afore-mentioned four plots are part of plot No.53. The respondents have also acceded that the High Court had granted those respondents the liberty to make construction or development in plot No.52. They have further stated in their reply that under compelling circumstances, demolition of the petitioner building was done. Before eviction, sufficient time was given to all the unauthorized occupiers to make free of their illegal occupation on their own volition, but they did not do the same. As a consequence, the Government was compelled to evict them from the land of NH-44. On the day of eviction, the land was a government Khash land from where the eviction was made. Those respondents have categorically stated that fact. The respondents have asserted that they did not make any eviction from the petitioners land in C.S. Plot No.53. The intention of the respondents was only to clear the government khash land, which is plot No.52. Later on, the respondent No.3 filed his reply and has stated that the Hon'ble High Court had disposed of the writ petition with direction that the respondents shall ensure protection of possession of the land and the building constructed by the writ petitioners on plot No.53 in terms of the decree dated 09.08.2001 passed by the Civil Judge, Junior Division in T.S.82 of 1997 and T.S.85 of 1997. The respondents were also restrained from disturbing the possession of the said land being C.S. Plot No.53 and the building thereon. However, the respondents were given liberty to make construction or development in C.S.Plot No.52 which is not attracted or covered by two decrees issued in T.S.82 of 1997 and T.S.85 of 1997. In the writ petition being WP(C) No.248 of 2006, the writ petitioners claimed right in respect of the plots No.53/7803, 53/7804, 53/7805 and 53/7806. According to the respondent No.3, all these derivative plots are part of C.S. Plot No.53. But no protection or declaration was granted or made in respect of plot No.52 on which the contempt petitioners "constructed illegal construction," according to the respondents.
According to the respondent No.3, the Old Plot No.52 corresponding to R.S.plots No.6894 and 6893 are Government khash land and the illegal occupation had been cleared off therefrom. Hence, the respondents cannot be made liable for violating the order of this court. They have admitted that the said land was part of the land of NH-44 and as the petitioners (the complainants) were illegally occupying, that land were cleared off on one day of any illegal construction.
The complainants [the petitioners] filed the rejoinder and reiterated that the building of the petitioners was dismantled or demolished by those respondents and that building was constructed on C.S. plot No.53 and not on C.S. plot No.52. The respondent No.4 filed the affidavit in opposition and stated that the Revenue Authority conducted a field demarcation survey to determine if any demolition work would relate to C.S. Plot No.53 or not. It revealed from the demarcation report that C.S. Plot No.53 will remain untouched under her supervision. The encroachers were forewarned for removing the unlawful encroachment and when they did not remove or demolish their illegal occupation, the team cleared the encroachment from plot No.52 which is an adjoining plot of C.S. Plot No.53. Even the alignment of road does not run through the jote land being C.S.plot No.53. The respondent No.4 has also produced a map showing the alignment of the road. The said respondent has categorically stated in sequel as follows :
"AMC did not disturb the enjoyment of property in plot no.53 till date. AMC dismantled the construction which is standing on plot no.52 only, in doing so a part of the construction in plot no.53 might have been effected for which the petitioners are alone to be blamed."
The respondent No.4 has submitted that the utmost care was taken so that the possession of the land in C.S. Plot No.53 and the building thereon are not affected with the said demolition drive. She said that her presence was in terms of Section 107 of the Tripura Municipal Act, 1994 vide the order dated 19.04.2016.
From the settlement map [Annexure-H/3 of the reply filed by the respondent No.4] it would be apparent that C.S. Plot No.52 and C.S. Plot No.53, even though, adjoining, but both the plots are bounded by a strip of land along with NH-44, the encroached road. The survey records are also filed with the reply of the respondent No.3. From Exbt.H/4 the encroachment of the acquired land is specifically shown by grey colour whereas encroachment free road is shown in green colour. The same plea has been reiterated by the petitioner by filing two separate rejoinders in response to the reply filed by the respondents No.3 and 4. The reply filed by the respondent No.2 on 08.05.2015 was in reply to the charge and he has reiterated his earlier reply to contend that the possession of C.S. Plot No.53 is in no manner affected by the said demolition drive. He has also produced a survey map [Annexure-R/3 to the reply to the charge framed by this court] showing C.S. Plot No.53 [in yellow] and C.S. Plot No.52 [in orange]. According to him, the land marked by yellow was beyond the drive. Only the land covered by orange colour was under the said drive for clearing the encroachment. In the background of that fact, the charge (as reproduced) was framed and the complainant and the respondent Nos.2, 3 and 4 were asked to lay the evidence to support the indictment or to established the fact as relied for denial.
The complainants [the petitioners] adduced three witnesses and introduced a series of documentary evidence including [Exbts.1 to 14]. The examination-in-Chief was filed by affidavit and the cross-examination was recorded by the Registrar, Judicial, High Court of Tripura in terms of the authority given by this Court. PW-1, Sri Ardhendu Bikash Das in his examination-in-Chief has stated that by the decree passed in T.S.82 of 1997 and T.S.85 of 1997, the respondents No.1 to 4 and the predecessor of the respondent No.3 [SDM, Bishalgarh] had been prohibited to interfere with his peaceful possession of the Monihar Market Complex built on the decreetal land, owned and possessed by the complainants [the petitioners]. The respondents were restrained to dismantle or demolish any portion of the said market complex. He has also stated that he is the owner and possessor of the C.S. plot. No. 53/7803 corresponding to hal plot No.6893 measuring 0.020 acre and C.S. plot No.53/7804 corresponding to hal plot no.6892 measuring 0.050 acre under khatian No.3835 of Mouja Pratapgarh, sheet No.1 renamed as Mouja Howrah, sheet Nos.5 to 7. He is also the owner and possessor of C.S. Plots No.53/7804 and 53/7806(part) corresponding to the hal plot No.6894 measuring 0.020 acre under khatian No.4592 of Mouja Howrah, sheet No.5 to 7. He has stated further that [the petitioner No.2] being his wife is the owner and possessor of C.S. Plot No.53/7806 corresponding to the hal Plot No.6895 measuring 0.50 acre under khatian No.3836 of Howrah, sheet No.5 to 7. He has also given the reference to the holding No.899/511 and 899-B/513 which are not though very relevant in the context. According to the complainants [the petitioners], they have constructed two storied RCC building as per the approved plan under No.3096-99/HC/SC/02 dated 05.03.2003. The complainant No.1 has further stated that some dispute was raised by some officials of the respondents during demarcation work of Agartala-Bishalgarh road stating that some land acquired for the said road had been encroached by him. Out of apprehension, he had instituted T.S. 82 of 1997 and that suit was decreed on 09.08.2001 declaring his title over the suit land and confirming his possession therein and also restraining the respondents permanently from entering into the suit land or to interfere with his possession. Under the similar circumstances, the former owner of C.S. Plot Nos.53/7805 and 53/7806 of Mouja Pratapgarh namely Shri Arun Chandra Datta had filed T.S.85 of 1997 against the respondents in the Court of Civil Judge, Junior Division for identical reliefs. The suit was decreed in the similar terms. The judgment and decree reached their finality in respect of the decreetal land. Sri Arun Chandra Datta transferred a part of the decreetal land to the petitioner No.1 by the sale deed dated 16.12.1999 and the said land covered by the sale deeds was duly mutated in favour of the petitioner No.2. The records of right (ROR) was opened accordingly. The decreetal land of T.S.82 of 1997 was purchased by the petitioner No.1 by the sale deed dated 11.03.1974 from one Jaharlal Ghosh. In the Examination-in-chief, he has referred to the protection order dated 27.11.2006 delivered in WP(C)248 of 2006. He has clearly admitted in his examination-in-chief that the respondents were given liberty to make construction and development in plot No.52 which is not covered by the decrees above. He has also stated that he had transferred some shops of the said market. When the respondents started construction of the flyover on Agartala-Bishalgarh road, they had announced that encroachment on the main road would be cleared. Even though, he was protected by the direction as passed in the writ petition being 248/2006, on 24.04.2016, the accused-respondents appeared with Tripura Police/ Paramilitary Forces on Agartala-Bishalgarh Highway and by using cranes and dodgers dismantled or demolished the front portion of the said market from ground floor to third floor defying the protest and in the gross disobedience to the final order dated 27.11.2006. According to the petitioner No.1, they suffered loss to the extent of Rs.5 crores for the said unlawful action. The petitioner No.1 had due permission from the Municipal Authorities for construction of the said building called Monihar Market on plot No.53. The petitioner has admitted a series of documents as Exbts. 1 to 14 which are in seriatim as follows:
"1. Orders of Municipal approval for the ground floor and first floor dated 05.03.2003. [Exbt.1]
Building permission for the 3rd floor dated 09.03.2012. [Exbt.2]
All orders passed in WP(C)248/2006 including order dated 27.11.2006 passed in WP(C)248/2006 passed by the Hon'ble Gauhati High Court, Agartala, Bench. [Exbt.3]
Judgment and Decree dated 09.08.2001 in TS 82/1997 passed by the Ld. Civil Judge, Jr. Division, Court No.1, Agartala, West Tripura. [Exbt.4]
Representations submitted by the Petitioner No.3 to the District Magistrate and Collector, West Tripura, Agartala. [Exbt.5]
Khatian No.35, Mouja Howra, Sub-Division-Sadar. [Exbt.6]
Khatian No.35, Mouja Howra, Sub-Division-Sadar. [Exbt.7]
Order dated 09.06.2006 passed by the Hon'ble Gauhati High Court, Agartala bench in C.M.292/2006arising out of WP(C)248/2006. [Exbt.8]
Application of the Petitioner No.4 dated 16.05.2015 for correction of the illegal change made in Khatian No.35, Mouja Howrah. [Exbt.9]
Agreement dated 21.05.2004 between the Petitioner No.3 and the Petitioner No.1. [Exbt.10]
Representations submitted by the Petitioner No.4 to the District Magistrate and Collector, West Tripura, Agartala. [Exbt.11]
Registration Agreement No.1-9014 dated 05.12.2014 between the Petitioner No.4 and one Shri Ashish Sen, S/O-Shri Bhupal Chandra Sen. [Exbt.12]
Application of the Petitioner No.3 dated 16.05.2015 for correction of the illegal change made in Khatian No.35, Mouja Howrah. [Exbt.13]
Hand Sketch map of the floor plan of the building showing the front position of the building so far demolished by the Respondents. [Exbt.14]."
In the cross-examination, the petitioner No.1 has stated that the building where he has been residing was constructed in the year 1974. He had constructed the ground floor of Monihar Market probably in the year 1991-96. He had sold all the shops of the ground floor but did not sell any shop of the first floor to anyone. The measurement of the Monihar Market is 50 x 60 ft. He had constructed the first floor and the second floor after obtaining due permission. His wife [the petitioner No.2] had purchased 14 satak of land. In that land, there are two buildings. One building is in the front side and the other is in the rear. He has again stated that he has no other land except C.S. Plot No.53. He has however denied that his wife was not the owner in possession of C.S. Plot No.53/7806 corresponding to new plot No.6859 measuring 0.50 acres under Khatian No.3836 of Howrah sheet No.5-7. He has also denied the fact that during the survey carried out in T.S.82 of 1997 it appeared that the suit land was part of C.S. Plot No.52 of mouza Pratapgarh and in the judgment the civil court an observation has been on that aspect of the matter. The complainant No.1 has stated that C.S. plot No.52 belongs to PWD, that situate on the Western side of his Monihar Market. He has denied that he had encroached any part of C.S. Plot No.52. He has also admitted that he was asked to explain by the notice dated 19.01.2012 by the Executive Officer, Agartala Municipal Corporation why his plan was beyond the land that he owned, but he had denied the said allegation by filing a reply. He has also stated that he was not occupying 0.034 acres of land appertaining to C.S. plot No.52(part). He has denied his knowledge that there was land measuring 56x27 ft. belonging to the Government. He has stated that he submitted the lay out plan to Agartala Municipal Council [as it then was]. Thereafter, he has asserted that in violation of the order of the Hon'ble High Court, as stated, the respondents namely Manik Lal Das and Harsita Biswas carried out the demolition.
PW-2, Dulal Saha has appeared for the complainant No.4 to state the similar facts [the examination-in-chief filed the affidavit by him is the exact replica of the examination-in-chief filed by PW-1]. Thus, this court refrains from making elaborate reference. In the cross-examination, he has stated that even though, he was not the party in the writ petition, but he was aware of the outcome of the writ petition filed by Ardhendu Bikash Das [PW-1]. Even though he is a Government employee working in the Education Department, but in the affidavit, he has shown him as the businessman. He has not stated much in the cross-examination.
PW-3, Rajesh Banik, has corroborated the statement of PW-1 in certain respects, but he has asserted that apprehending that the respondents may create some difficulty, he had brought the order passed by the Hon'ble High Court, as noted, to the notice of the respondents No.2 and 4. He has also corroborated that on 24.04.2016 the front portion of Monihar Market from the ground floor to the third floor was substantially demolished in violation of the direction contained in the decrees passed by the Civil Court and the order dated 27.11.2006. He has stated that he was personally present at the time of demolition which caused huge damage to the extent of Rs.5 crores. But in the cross- examination he has clearly admitted that he has no knowledge about the actual area of the land owned by the petitioners [the complainants]. The petitioners did not make any attempt to place in the evidence, the settlement map to show the area and position of C.S. Plot No.52 of mouza Pratapgarh for purpose of collating C.S. Plot No.53 of mouza Howrah erstwhile Pratapgarh. Even, no attempt has been made to collate the area of C.S. Plot No.53 vis-à-vis the area of the construction. The accused-respondents, as stated earlier, has also adduced evidence both oral and documentary. The respondents adduced nine witnesses DWs 1 to 9 and admitted in the evidence 26 documents [Exbts.A to Z].
DW-1, Dr. Milind Ramteke has stated that the petitioners have made false allegation that the respondents Nos.3 and 4 by showing willful disobedience entered into the jote land of the petitioners namely Ardhendu Bikash Das and Minati Das in C.S. Plot No.53 under Mouza Howrah (erstwhile Pratapgarh) and forcefully dismantled the front portion of the three storied commercial building named Monihar Market. Even though, they were protected by the order of the Hon'ble High Court. He has stated that the High Court has given the liberty to make construction and development in plot No.52 by the respondents as that plot No.52 is not covered by two decrees obtained by the petitioners [the complainants]. He has denied the charge. But he has admitted that during his tenure as the District Magistrate and Collector of West Tripura District, the State Government had taken decision to remove encroachment from the acquired land or the PWD road from Jawhar Bridge to Drop Gate for widening the road on both sides so as to ensure smooth and free flow of vehicular traffic during the construction of the first Flyover in Agartala city. Agartala Municipal Corporation with the support of the District Administration has removed 5-6 feet from the frontal elevation of Monihar Market as that part of the land is pertained to C.S.Plot No.52 of mouza Pratapgarh, corresponding to R.S. plot Nos.6893, 6894 of Hal Mouza Howrah. DW-1 has further stated as follows :
"a. Acquisition of roadside land from Jahar Bridge Battala upto Drop Gate by the State Government in 1958-59: That 0.0771 acre roadside land w as acquired by the State Government in the said portion in 1958 and 1959 at mouza Bardowali, Agartala from Smt Sabitri Bala Debi w/o Sachindra Kumar Chaudhury for construction of bridge on Howrah River and for widening of road vide Land Acquisition Notifications No.15841-43/DM/LA/SS/587/57 dated 3rd February 1958 and No.3199-201/DM/LA/SS/731/59 dated 29th June 1959. [Annexure A of the Firishti submitted by me to the Hon'ble Court]. For understanding tabulated details are mentioned in the [Annexure I enclosed with this Affidavit] needless to mention here that at the time of acquisition in 1958-59 the entire land was plotted in Jote Plots. After the First Appellate Court Survey and Settlement operation in 1960 onwards in Tripura, the roadside acquired land of Smt Sabitri Bala Debi was plotted as Cadastral Survey (CS) Plot number 52 and the private land of Smt Sabitri Bala Debi was plotted into CS Plot Number 53. After the Revisional Survey in the year 2004 onwards these CS Plots were plotted again into RS Plots.
b. Purchase of 0.140 acre land by the petitioners at Bordwali, near Nagerjella Tri Junction Agartala:
As per the description in the below mentioned registered deeds executed by the Petitioners (Certified copies of Registered Deeds are annexed in (annexure: I enclosed in the Firishti submitted by me). In the year 1970 one Shri Jahar Lal Ghosh s/o Lt Akhil Chandra Ghosh of town Shibnagar, Agartala purchased 0.36 acre of land under CS Plot Number 53 from the survivors of Lt Sabitri Bala Debi namely Khagendra Kumar Chaudhury and others. Shri Jahar Lal Ghosh sold 0.07 acres under his CS Plot number 53 to Sri Ardendu Bikash Das (the petitioner) in 1974 vide Registered Sale Deed number 1-6130. Subsequently Sri Ardendu Bikash Das (Petitioner Number 1) purchased 0.02 acres of Land from one Sri Arun Chandra Datta s/o Lt. Jatra Mohan Datta of Bordwali, Agartala on 16.12.1999 vide Registered Deed Number 1-10108. On the same same day Smt Minati Das the petitioner No.2 purchased 0.05 acres of land from Sri Arun Chandra Datta vide Registered Deed Number 1-10106. Thus the total jote land of Petitioners under CS Plot 53 is 0.140 acres (0.07 + 0.02 + 0.05) i.e. 14 Sataks which has been well accepted b the petitioners in their Cross Examination. Also the petitioners have well accepted that part from 0.140 acres under CS Plot Number 53, they do not won any other land. (Page number 2 of Cross Examination of petitioners) For understanding the tabulated details are mentioned in the Annexure II attached in this Affidavit. Thus on the basis of 1 above mentioned Sale Deeds executed by the petitioners & 2. From the statement recorded by the Ld. Registrar (Judicial) in the cross examination of the petitioners on 24/08/2018, it is proved beyond doubt that the petitioners possess only 0.140 acre (14 Satak) of land under CS Plot number 53 under earlier Mauza pratapgarh and now mauza Hawrah, at Bordwali near Nagerjella Tri Junction, Agartala."
In the letter dated 22.08.2016 [Exbt.11] addressed to the District Magistrate and Collector, one Purabi Saha has stated that she had purchased six rooms of the building owned by the petitioner within C.S. Plot No.53 by the sale deed duly executed and registered by Ashis Sen who got the title and possession from Ardhendu Bikash Das. She has further stated that she took possession of those six rooms as stated. The petitioner or the subsequent purchaser through the petitioner took a similar stand and nobody has stated that their construction is attracted by C.S. Plot No.52. Their land or construction is only covered by C.S. Plot No.53. In the decree in T.S. 82 of 1997, C.S. Plot No.52 has been shown on the west of plot No.53 and it is a distinct plot. The allegation of the petitioners has been sought to be corroborated by PW-3 who has stated that the front portion of the said building [Monihar Market] was demolished in showing disobedience to the direction contained in the decree passed by the Civil Court and further ratified by the High Court, as reflected in the order dated 27.11.2006. PW-3 has nowhere stated that the demolished part of the building was part of C.S. Plot No.53. Only PW-2 has stated that the said building was constructed on C.S. Plot No.53. PW-1 has however stated in his deposition that there had been no embargo by way of the restraint order on C.S. Plot No.52 of Mouja Howrah. He has further stated that the petitioner No.1 and his successors have encroached no part of the land from plot No.52. But he has stated that the dismantling of the Monahar Market is in disobedience of the order dated 27.11.2006.
The respondents have taken a categorical stand that they had not demolished any building or construction situated in C.S. Plot No.53. The petitioner No.1(PW-1) has taken a stand that a building plan was sanctioned by the Agartala Municipal Authority and there was services lapse on the part of the officer namely Bidhan Chandra Roy. The respondents have as well stated through DW-1 that on 27.01.2012, the petitioners namely Ardhendu Bikash Das and Minata Das submitted a letter in which the petitioner have for the first time accepted that the double storeyed building on C.S. Plot No.53 is owned by them. DW-1 has categorically stated that Bidhan Chandra Roy, TCS, Executive Officer, South Zone of Agartala Municipal Council approved the site plan of Monihar Market on 09.03.2012 granting permission to construct the second and third storey of the said building but the said construction was made partly utilising C.S. Plot No.52 which belongs to the Government. Bidhan Chandra Roy had been put to disciplinary action for permitting such wrongful construction. No occupancy certificate was issued in favour of the owners of the said building under Rule 36 of the Tripura Building Rules framed under Tripura Municipal Act, 1994. There was no embargo to clear the occupation from C.S. Plot No.52, as stated. DW-1 has categorically stated that no demolition has been carried out in C.S. Plot No.53. The construction as made having illegally encroached the part of C.S. Plot No.52 has been demolished and removed after due notice. DW-1 has introduced in the evidence the following documents :
"a. Certified Copies of the Land Acquisition Notification No. 15841-43/DM/LA/SS/587/57 dated 3rd February, 1958.
b. Certified Copies of the Land Acquisition Notification No.3199-201/DM/LA/SS/587/57 dated 29th June, 1959.
c. High Resolution aerial image of Nagerjala Tri-Junction area obtained from the Tripura Space Application Center.
d. Original Copies of Superimposed Revenue Maps over the High Resolution Image of the instant site depicting the acquired land and jote land of the petitioners with plot wise areas and extent of encroachment (obtained from the Directorate Land Records and Settlement).
e. Certified Copy of the lay out Plan of the instant site approved by Agartala Municipal Council.
f. Hand Sketch over the certified copy of the lay Out Plan of the instant site depicting the extent of encroachment of Monihar Market over the Government/PWD acquired land.
g. Certified Copies of the order of the Hon'ble High Court case No.248 of 2006.
h. Certified Copies of the TS case 82 and 85 of 97.
i. Certified Copies of the registered Sale Deeds No.I-6130 of 1974, I-10108 of 1999 and 1-10106 of 1999.
j. Original Copy of the requisition letter Executive Engineer (PWD) Agartala Division Number 1 Agartala for encroachment removal.
k. Certified Copies of the note of the surveyor (Amin) of AMC, Sri Priyalal Debnath dated 17.01.2012.
l. Certified Copy of the letter of Executive Officer Sri Bidhan Ch. Roy to the petitioner vide letter number PLAN/287/HC/SZO/AMC/2011/1354 dated 19.01.2012.
m. Certified Copy of the reply of the petitioner to the letter of Sri Bidhan Ch. Roy Executive Officer South Zone.
n. Certified Copy of the 1st application for Building Plan Permission by the petitioners for construction of ground and 1st Floor of Monihor Market.
o. Certified Copy of the 2nd application for Building Plan Permission for 2nd and 3rd storey of Monihar Market building.
p. Certified Copy of the property Tax receipt in the name of the petitioner Sri Ardhendu Bikash Das for House no. 402553 (Holding No.514/899/C) for Monihar Market Building.
q. Certified Copy of the property tax receipt in the name of the petitioner namely Smt. Minati Das house no.402553 Holding No. 514/899/B) for Monihar Market building."
All these above noted documents have been admitted in the evidence. That apart, in the cross-examination, DW-1 has stated that he did not give any notice to the petitioner or his successors prior to demolition as they were encroaching the government land in C.S. Plot No.52 most illegally. The plan submitted by the petitioner and another did not tally with the physical possession of the land. Notice was served on the petitioner on his encroachment over C.S. plot No.52, but he could not submit any document either to show that the entire building is on plot No.53 or to show that no part of plot No.52 has been encroached. He has denied the suggestion that the construction was confined to C.S. Plot No.53.
DW-2, Usa Jen Mog was the Additional District Magistrate and Land Acquisition Collector at that time. He introduced the land acquisition notification by which 0.0771 acre of the road side land was acquired. The land has been mutated as C.S. Plot No.52 of Mouja Pratapgarh (now mouza Howrah). He has given a description of the piece of land measuring 0.035 acres : 56 feet (North-South) and breadth of about 27 feet (East-West). The boundaries of the said acquired land are :
West - Agartala-Bishagarh Road
East - Land of the petitioners under C.S. Plot No.53,
South - Municipal Road
North - Northern portion of acquired land under C.S. Plot No.52.
This is the land from where the illegal encroachments were removed and those were removed for widening the road and construction of flyover. No effective cross-examination was carried out by the petitioners.
DW-3, Ratan Chowdhury a Government Servant has given the description of the acquired land measuring 0.0771 acres (later C.S. Plot No.52). He has submitted one petition from the Public Works Department (PWD) for removal of the encroachment from Government Press to Jawhar Bridge (auto stand). He has also identified the land under encroachment. He has categorically denied that any construction on C.S. plot No.53 was damaged.
DW-4, Partha Sarathi Acharjee, an Amin who was part of the joined demarcation team with the officials of the Revenue Department, Public Works Department and Agartala Municipal Council. He has stated that C.S. Plot No.52 (RS Plots No.6893, 6894, 6897, 6900, 6902) of mouza Pratapgarh (now mouza Howrah) was posted against the land acquired measuring 0.0771 acres. He has also identified the land in question measuring 0.035 acres with its boundaries. He has categorically stated as under :
"At the time of demarcation, I noticed that front portion of Monihar Market Building i.e. about 19 feet was encroached over the acquired PWD land under CS Plot number 52 (RS Plots 6893 and 6894)."
During the removal drive, the construction over that part of C.S. Plot No.52 was removed.
No effective cross-examination was carried out.
DW-5, Tapas Choudhury, is a System Administrator working under the office of the Directorate of Settlement and Land Records (DSLR). He has identified the land pertained to C.S. Plot No.52 and stated that C.S. Plot No.52 was posted against the acquired roadside land measuring 0.0771 as the PWD land. Out of the said land, one piece of land measuring 0.035 acres was under encroachment of the petitioners and over that, the front portion of the Monihar Market building was constructed on illegal encroachment. No effective cross-examination was carried out.
PW-6, Manik Lal Das at the time of filing the examination-in-Chief was the Assistant Municipal Commissioner, South Zone of Agartala Municipal Corporation. He has categorically stated that the petitioner along with one Minati Das took permission initially for construction of (G+1) building and thereafter, he sought further permission for construction of third and fourth floor. After the field survey conducted by Priyalal Debnath, it revealed that the site plan submitted by the petitioner was grossly faulty and the petitioner does not have the physical area of land for construction of the building. By the letter dated 21.01.2017, both Ardhendu Bikash Das, the petitioner herein and Minati Das have stated that "the submitted site plan did not tally with the physical possession. At the time of construction it was quite perfect, but during the construction of boundary wall some error might have occurred, 2%(+-) error is acceptable by the standard of National Core building." DW-6 has further stated that one officer was responsible for such gross fault. In the cross-examination, DW-6 has admitted that the construction was made on the approved plan of AGMC but the law is that at the time of construction or at the time of submitting the building plan no government land be utilized. He has denied that the petitioner did not encroach the government land pertaining to C.S. plot No.52. He has also stated that Priyalal Debnath (DW-7) had done the field survey.
DW-7, Priyalal Debnath has stated that on 17.01.2012 he has conducted the physical inspection of the site, covered by C.S. Plot No.52. He has significantly stated as follows :
"That I came to know from the Revenue Officials that one road side land under CS Plot No.52 in front of the instant land of the petitioners i.e. on the adjacent west side was acquired by the state Government about 50 years ago. However the Site/Layout plan submitted by the petitioners does not mention any such CS Plot No.52 on the roadside or the West side of the land/site of the petitioner. In fact the petitioners have mentioned Agartala-Udaipur road as the Western boundary in their Site Plan instead of any Government acquired Land under CS Plot No.52. Also from the Site/Layout plan the total area under possession of the petitioner comes out to be about 0.170 acres."
His report has been admitted in the evidence [Exbt.E]. In the report, he has shown how the land between the western boundary of C.S. Plot No.53 and the road pertaining to C.S. Plot No.52 were included in the proposed site. In the cross-examination, nothing could be dented.
DW-9, Smt. Harshita Biswas has only stated about her engagement during the demolition drive. She has categorically stated that based on the revenue records and the demarcated plots, the road-side encroachment was identified. She had acted bonafide to remove the encroachment from the hal Plot No.6894 measuring .020 acre and 6893/p measuring .015 acres. All are parts of C.S. Plot No.52. She has stated that she did not violate any order of this court.
Having perused the survey reports prepared in connection with the acquisition notification dated 09.07.1959, it appears that the petitioners encroached a strip of land along the Agartala-Bishalagarh road. For this purpose, Exbt.D has been inspected and scrutinized.
Mr. R. Datta, learned counsel appearing for the petitioners has submitted that if the demolition has been made in the construction (Monihar Market Building) which was standing on the C.S. Plot No.53 when the possession and construction on the plot has been totally protected by the order dated 27.11.2006 in the writ petition being WP(C)No.248 of 2006, in deliberate violation of the said order, the demolition had been carried out. As consequence thereof, the respondents No.2, 3 and 4 be held guilty of contempt. He has relied on few decisions of the apex court in Tapan Kumar Mukherjee versus Hiromoni Mondal and Another reported in (1991) 1 SCC 397 where the apex court has observed that the officer or the government should exercise utmost vigilance in compliance of the court's orders particularly where they deal with vital issues. When a case of wilful disobedience is made out, the courts will not hesitate and will convict the delinquent officer and no lenience in the court's attitude should be expected merely on consideration that an order of conviction would damage the service career of the concerned officer. According to Mr. Datta, learned counsel, on 27.11.2006 the demolition of the building of the petitioner and the others qua the petitioners is a clear act of disobedience to the direction of the court.
Reference has been made to J. Parihar versus Ganapat Duggar and Others reported in (1996) 6 SCC 291. In that case, however, the apex court had observed that the implementation of the order sometime may be wrong or may be right or may or may not be in conformity with direction. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But here it is not a case of implementation of the order or direction of the court.
In Kapildeo Prasad Sah and Others versus State of Bihar and Others reported in (1999) 7 SCC 569, the apex court has held that to hold the respondents to have committed contempt, the civil contempt for that matter, it has to be shown that there had been wilful disobedience of the judgment or order of the Court. Power to punish for contempt is to be resorted to when there is clear violation of the Court's order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court's order has been made out. Whether the disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the Court's orders and its implication. Disobedience of Court's order strikes at the very root of rule of law.
Mr. Datta, learned counsel has further referred and relied on Ram Narang versus Ramesh Narang and Another reported in (2009) 16 SCC 126 where the apex court had observed that in order to maintain the sanctity of the orders of the highest court of the country, the contempt jurisdiction is the weapon in the event of blatant and deliberate violation of the order of the court even disregarding of the undertaking tendered in the court would constitute the contempt under Section 2(b) of the Contempt of Courts Act.
In this case, however, no undertaking has been filed in the court to do a certain act in a certain manner and that was allegedly breached much later.
For purpose of highlighting that to punish the persons who have disobeyed or not carried out orders of the court i.e. for their past conduct may be considered. Secondly, to pass such order including the imprisonment, the contempt jurisdiction is a tool for compliance with its orders in future. With those principles, nobody can disagree. In England and Wales form of contempt has been regarded as criminal character and as such is called criminal contempt. In Scotland, contempt of court is not a crime nor the distinction between criminal and civil contempt is recognized. Under the Indian law the conduct of the parties, the act of disobedience and the attended circumstances are relevant to consider whether the case would fall under civil contempt or criminal contempt. While inquiring whether the contemnor is guilty of intentional and wilful violation of the orders of the court, the court must engage itself to make necessary fact finding. Flagrant violation of the courts orders would reflect the attitude of the party concerned to undermine the authority of the courts, their dignity and the administration of justice. According to Mr. Datta, learned counsel this is a flagrant violation and disobedience to the authority of the court.
Mr. Datta, learned counsel has referred a decision in Kalyaneshwari versus Union of India and Others reported in (2012) 12 SCC 599 where the apex court had occasion to observe that there are dual obligations of the court to be discharged on considering various facets: (1) to impose severe punishment on the one hand and (2) to efficiently prevent the crime on the other hand with ultimate object of maintaining the dignity of law. The contemnors are therefore liable to be punished for their offensive and contemptuous behaviour.
In Balakishan Giri versus State of Uttar Pradesh ported in (2014) 7 SCC 280 the apex court had occasion to observe as follows :
"20. That the power to punish for contempt is a rare species of judicial power which is by the very nature calls for exercise with great care and caution. Such power ought to be exercised only where "silence is no longer an option."
(See: In Re: S. Mulgaokar: AIR 1978 SC 727; H.G. Rangangoud v. State Trading Corporation of India Ltd. and Ors.: AIR 2012 SC 490; Maninderjit Singh Bitta v. Union of India and Ors.: (2012) 1 SCC 273; T.C. Gupta and Anr. v. Hari Om Prakash and Ors.: (2013) 10 SCC 658; and Arun Kumar Yadav v. State of U.P. through District Judge: (2013) 14 SCC 127. Power of courts to punish for contempt is to secure public respect and confidence in judicial process. Thus, it is a necessary incident to every court of justice."
Mr. Datta, learned counsel has quite strenuously submitted that from the sanctioned plan of the building, part of which has been demolished by the respondents No.2, 3 and 4 in gross disobedience to the order dated 27.11.2006, it will be evident that the said building was standing on C.S. Plot No.53 and entitled to protection of the court. Despite protest of the petitioners, the respondents No.2 and 3 had demolished the part of the building on 24.04.2016. Those respondents had with aid from huge enforcement, demolished the part of the said building in violation of the order dated 27.11.2006. Those respondents shall inevitably be punished for committing contempt of courts for upholding the authority of law.
Mr. N. Chowdhury, learned G.A., Mr. K.N. Bhattacharjee, learned senior counsel assisted by Ms. S. Ray, learned counsel, Mr. T.D. Majumder, learned counsel, Mr. K.K. Pal, learned counsel appearing for the respondents have in unison submitted that there is no violation of the courts order dated 27.11.2006. The construction which has been demolished was illegally erected on C.S. Plot No.52 not on C.S. Plot No.53 as claimed by the complainants (the petitioner) protection from interference in any manner was given by the order dated 27.11.2007 in respect of C.S. Plot No.53. Even, the petitioners have admitted that they were asked to explain by the notice dated 19.01.2012 by the Executive Officer, AGMC that their plan was beyond the land which they owned. The petitioners, however have not accepted that statement by filing the reply.
Reference has been made to the cotemporary survey report along with contemporary revenue map as prepared for identification of the encroachment, viz., Exbt.D, Exbt.E, Exbt.F and the reports of DW-7 and other revenue officers. From there, the learned counsel for the accused-respondents had shown that the demolition was confined to C.S. Plot No.52 and by no means, the demolition encompassed any construction on C.S. Plot No.53. Collation of the survey reports, the deposition in this regard, the settlement map, blown-up GPS map and the sketch-map showing the part of the encroachment, it is evident that demolition was carried on within plot No.52. In respect of plot No.52, there was no prohibitory order.
Having appreciated the submissions of the learned counsel for the parties and keenly perusing the documentary evidence both by the petitioners and the respondents No.2, 3 and 4, this court is of the view that the petitioner being the prosecutor has grossly failed to establish that any part of the building standing on C.S. Plot No.53 has been demolished or damaged. As such, it cannot be held that the order dated 27.11.2006 has in any manner been violated.
Having observed thus, the respondents No.2, 3 and 4 are discharged from the charge as framed on 10.11.2017 for alleged violation of the order dated 27.11.2006 or the interim order dated 9.6.2006 as delivered in WP(C)No.248 of 2006. Thus, the proceeding is closed in terms of the above.
Returned the original records to the respective parties, if applied, by keeping the photocopies thereof.