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PETITIONER: BOMBAY ENVIRONMENTAL ACTION GROUP AND ANR.

       Vs.

RESPONDENT: THE MUNICIPAL CORPN. OF PUNE & ORS.

DATE OF JUDGMENT:       07/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  JT 1996 (2)   470        1996 SCALE  (2)312

ACT:

HEADNOTE:

JUDGMENT:                        O R D E R      Leave granted.      We have heard the counsel on both sides.      The 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 thus:      "We 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.      Shri Gopal  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

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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. Though 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.      May 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. However, 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.      Shri  Baroocha,   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 itself.      It is  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.      We 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.      The  appeal   is  disposed   of  with   the  above observations. No costs.

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