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PETITIONER: CALCUTTA YOUTH FRONT &  ANR

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT12/09/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1988 SCR  Supl. (2)1017  JT 1988 (3)   633  1988 SCALE  (2)594

ACT:     Contempt of Courts Act, 1971--Court laid down terms  and conditions for constructing underground market at Calcutta-- Applicants  alleged  violation  of  the  terms--Court  asked Single Judge of High Court to submit a report--Single  Judge found no violation--Court considered the report and found no violation of its order--Held no contempt of Court committed. %     Contempt of Courts Act--Attempts to move Court time  and again  alleging  contempt  of Court which  is  unfounded  be deprecated.

HEADNOTE:     The applicants filed a contempt petition under  Contempt of Courts Act against the respondents (some high officers of the   Calcutta  Municipal  Corporation)  and  the   lessees, respondent  Nos.  13  and 14, who were  given  contract  for construction  alleging that they were guilty of contempt  in that  they had constructed the underground market in  breach of  the terms and conditions laid down by this Court in  its order dated 18th August, 19X7. The applicants submitted that the  officers  had permitted the lessees,  to  construct  an underground air-conditioned market at Satyanarayan Park  and that  they  had connived and acquiesced  in  permitting  the lessees  to  construct four pucca structures of 15  feet  in height above the road level partly convering the surface  of the park and covering a major portion of the surface of  the Park.  They also  alleged that the construction of the  four storeyed quarters (service block) were also in violation  of the  conditions. The respondents controverted  these  facts. The  matter  was referred to the Single Judge  of  the  High Court  who had earlier heard the matter and  whose  decision had been confirmed by a Division Bench of the High Court and by this Court, to hold an enquiry as to whether there was  a violation  of  the  judgment and order  passed  by  him  The Learned  Single Judge personally visited the site and  heard the  parties. He submitted his report containing his  visual impressions  and holding that there was no violation of  any directions given by him in his judgment and the question  of committing any contempt of the judgment does not and  cannot arise, He left the question open for this Court to determine whether  there was any derivation from the  conditions  set-

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forth  by  the  Division  Bench order  and  by  this  Court,                                                   PG NO 1017                                                   PG NO 1018 Rejecting the contentions of the applicants,  aggreeing with the   findings  and  reasoning  of  the  Single  Judge   and dismissing the contempt application, this Court,     HELD:  There can be no doubt whatever that there  is  no breach  either of the conditions laid down by this Court  or the  Division Bench of  the High Court. The construction  of the so called lofty structures over the staircase leading to the  underground market, which we may call bunkers, as  well as  of  the four storeyed building were in  the  architect’s plan and were expressly permitted in the licence and  formed part of the sanctioned plan. It was therefore present In the mind   of  all  concerned  including  the  Chief   Municipal Architect  and Town Planner as also of the Administrator  of the Municipal Corporation while planning the  costruction of the underground air-conditioned market that these structures would  be built up. As already stated, the  construction  of the  bunkers  over  the three staircases  was  a  matter  of absolute  necessity  to make  the  central  air-conditioning plant  fully  functional.  As  regards  the  four   storeyed structure,  the construction thereof does not  constitute  a breach  of  the conditions laid down. It  has  already  been stated that the four storeyed structure is built to  provide residential  quarters  to  the staff  and  actually  now  it occupies much lesser space than before. In the premises, the allegation  made  by  the  applicants  that  the   aforesaid structures cover a substantial portion of the surface of the park which cannot now be turned into a terrace garden with a lush green lawn, is fully unfounded. [1024G-H; 1025A-C]     The Court cannot but deprecate the attempts made by  the applicants to move the High Court as well as this Court time and  again on one pretext or another in a frantic effort  to prevent   the   construction  of  the     underground   air- conditioned market at Satyanarayan Park which  is a part  of the beautification scheme of the great Metropolitan City  of Calcutta  by  the State Government of West  Bengal  where  a party in opposition is in power, to provide civic  amenities to  the  citizens It is fortunate that these  attempts  have been  frustrated  and what was conceived  of  a  development scheme has come to a reality. [1025E-G]

JUDGMENT:     CIVIL   APPELLATE  JURISDICTION:   Civil   Miscellaneous Petitions  Nos. 34114-15 of 1987 in S.L.P. Nos.  5678-79  of 1987.     From  the  Judgment and Order dated  18.8.1987  of  this Hon’ble Court in S.L.P. Nos. 5678-79 of 1987.     Shanti Bhushan, G.L. Sanghi and S.R. Srivastava for  the Petitioners.                                                   PG NO 1019     Somnath  Chatterjee, Tapas Ray, A.K. Mitra, B.P.  Singh, Mrs. Pratibha Jain, S.K. Jain, J.R. Dass and D.K. Sinha  for the Respondents.     The following Order of the Court was delivered by     SEN,  J. By these applications the  applicants  Calcutta Youth  Front  and its President Hridayanand Gupta  pray  for committing  for  contempt  respondents Nos.  3-9  under  the Contempt of Courts Act, 1971, namely: 1. Kamal Basu, Mayor & Administrator,  Calcutta  Municipal  Corporation;  2.   R.K. Prasannan, Municipal Commissioner; 3. B.C. Mitra,  Municipal Engineer-in-Chief;    4.   B.K.   Roy,   Deputy    Municipal

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Commissioner  (Sr.  ); 5. A . K .  Sarkar,  Chief  Municipal Architect   &  Town  Planner;  6.  A.K.  Goswami,   District Engineer;  7.  Dr. S.K. Chowdhury,  Chief  Municipal  Health Officer,  as well as the lessees respondents Nos. 13 and  14 Jugal Kishore Kajaria in his individual capacity as well  as as  Director, Messrs Happy Homes & Hotels  Private  Limited. The applicants alleged that these respondents were guilty of contempt  in  that  they  had in breach  of  the  terms  and conditions laid down by this Court in its order dated August 18,  1987 in SLPs 5678-79/87 See JT 1987 3 SC 348  permitted the  lessees  Messrs  Happy  Homes &  Hotels  Pvt.  Ltd.  to construct   an   underground   airconditioned   market    at Satyanarayan Park, and that they had connived and acquiesced in permitting the lessees to construct four pucca structures 15  feet in height above the road level partly covering  the surface  of  the Park and covering a major  portion  of  the surface   of  the  Park.  It  is  alleged  that   the   said constructions  constitute gross and deliberate violation  of the   undertaking   of  the  respondent  No.   13   in   his supplementary affidavit dated July 25, 1987 and the terms of the  Court’s order dated October 18, ]987. Applicant  No.  2 Hridayanand  Gupta  in  his affidavit dated  July  14,  1988 placed  reliance on the following observations made by  this Court in its order:     "Under the scheme there would be no construction on  the park; the underground market would be under the park and not over the park. The only difference is that the park would be re-located at a height of 6 feet above the road level easily accessible  by three separate staircases. Under the  scheme, Satyanarayan Park would become a real park with a lush green garden  with  tall  trees.  shrubs etc.  and  a  centre  for relaxation of the thickly congested Burrabazar locality  and in particular for the children as a playground."                                                   PG NO 1020     It  was  alleged that the assertion  of  the  contemnors before  this Court,  as was before the High Court, was  that tali  trees  and/or shrubs would be planted apart  from  the lush  green  lawn  on the eastern garden  under  the  direct supervision  of  the Agri-Horticultural  Society  of  India, Alipore  as  per  its  letter dated  July  25,  1987.  This, according  to  the applicants, was nothing but a  hoax.  The applicants  allege  that  the  aforesaid  respondents   have committed  deliberate violation of the terms and  conditions of this Court’s order by permitting the lessees to construct the aforesaid pucca structures of lofty heights which, apart from the four-storeyed building, cover a substantial portion of  the  surface of the park which would make  it  literally impossible  to have a terrace garden with a lush green  lawn with  tall trees, shrubs etc. as a place of relaxation,  and therefore  liable to be committed for contempt. They in  the meanwhile pray that respondents Nos. 13 and 14, the lessees, be   restrained   from  subletting  the   underground   air- conditioned  park to anyone in the greater public  interest. These allegations were controverted by the counter-affidavit of   Jagdish  Kanjilal,  Deputy  Chief  Engineer   (Design), Planning   &  Development  Department  of   the    Municipal Corporation dated February 10, 1988 and that by the  lessees Jugal  Kishore Kajaria impleaded as respondents Nos. 13  and 14.  The  applicants  filed  rejoinders  to  these  counter- affidavits.     Having  carefully  gone  through  the  applications  for contempt,  the counter-affidavit of respondents Nos. 13  and 14  and that filed on behalf of the  Municipal  Corporation, and  having regard to the fact that the allegations made  in the  applications involve controverted facts, we thought  it

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expedient to request Shri Justice Umesh Chandra Banerjee  by our  order  dated April 21, 1988 to hold an  enquiry  as  to whether  there  was a violation of the  judgment  and  order passed  by him, as affirmed in letters patent appeal by  the Division  Bench and also by this Court and directed  him  to forward  his findings by the second week of July  1988  that direction  of ours was not to be construed as  meaning  that there was a breach of the terms and conditions laid down  in the  judgment. It was further directed that the  High  Court shall  not,  during the pendency of the  enquiry,  pass  any interim  order  which would tend to obstruct  or  delay  the completion  of  the  construction work  of  the  underground airconditioned market.     In  compliance  therewith, Shri  Justice  Umesh  Chandra Banerjee has submitted his report holding that there was  no violation of his judgment. The learned Single Judge not only heard  the parties but also took  the trouble of  personally visiting  the  park and note his  observations  on  personal inspection.  In  the report the learned  Judge  records  his visual  impression in the following words:                                                   PG NO 1021     "Two  open  staircases have been provided for  an  entry onto  the park apart from the three other covered  entrances which  would facilitate entry onto both the Air  Conditioned Market  as  well as to the park. The covered  entrances  are more  or less at a height of about 15’ ft. There  are  three other  units for Air Handling Plants which are also more  or less at a height of about 15’ ft. On the eastern side  there is  a  storied  building and on the  top,  a  built-in-water reservoir  has  been  erected and  atop  the  built-in-water reservoir there are existing two huge water cooling tanks.     The  4 storied building admittedly has been  constructed in  place  and  stead of a one storied  building  which  was existing  prior  to the licensing  agreement  and  popularly known  as Service Block". On visual examination  it  appears that  certain plant and machinery along with a  switch  room are located and housed in the service block."     The learned Judge then goes on to add:     "On a close look at the entire nature of construction it cannot  be said that the area looks totally green with  some trees on one side. shrubs and other small trees all  around. In my judgment dated 17th July 1986 l observed:     "Lovely  lush green park soothing to the eyes  would  be visualised  since the same would be at a raised level.  Tall trees  have  already  been re-planted. The  entire  area  in question would have a different look. The sceptics might say that  this  is  too  much to  expect  but  optimism  prompts judicial conscience to allow such a project so that prospect of  having such an area in the heart of a commercial  centre in the city of Calcutta is not ruled out"."     The  learned  Judge  expresses  satisfaction  that   his expectations for beautification of the Metropolitan City  of Calcutta were not belied, in these words:     "It  seems  that the judicial optimism has paid  a  rich dividend in this particular case and the entire area in fact is  having a decent and sophisticated look. There was not  a blade of grass on the park prior to the licensing agreement.                                                   PG NO 1022     But  now a lush green lawn is visible and the  place  in fact  has  turned out to be a place for  recreation  of  tax payers--place  for  recreation  for  the  children  of   the locality and a place to wither away the time for the old and aged people."     Along with the report he has annexed a photograph  which depicts  the  existing state of Satyanarayan Park which  was

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once   a  dark, dangerous place frequented by  persons  with criminal record, has now turned out to be a beauty spot in a thickly  congested area like Burrabazar. It shows  that  all the  work of construction including the  covered  staircases together  with  the  open  staircase,  including  the   four storeyed service block’ is complete. The photograph  depicts the state of affairs as to the shape, size and dimensions of these structures and gives an overall  view of the  proposed park   atop  the  underground  air-conditioned   market   at Satyanarayan  Park.  The learned  Single  Judge  accordingly records   a   finding   that  by  the   raising   of   these constructions,  question of committing any contempt  of  his judgment does not and cannot arise. We find no justification to come to any different conclusion.     At  the  hearing Shri Shanti  Bhushan.  learned  counsel appearing  for the applicants was gracious enough to  accept that the re-location of the park at a height of 8 feet above the  road level instead of 6 feet is not a matter of  moment because a few inches more or less here or there is hardly of any significance. He however confined his submissions to two aspects. namely (i) the raising of the lofty structures over the  staircase   leading to the  underground  airconditioned market constitutes a breach of the conditions laid down. and (ii)  the construction of a four storeyed building  covering an  area of the park is a flagrant violation of the Court  s order. We are afraid. the contention cannot be accepted. The so-called lofty structures--which we may call bunkers--- are nothing but the covered space over the staircases from three directions  leading to the underground market.  The  learned counsel perhaps is not right in assuming that the staircases go upwards. Actually. the staircases provide an approach  to the public to the undergroud airconditioned market and  they go downwards. The staircases would not possibly be kept open and  exposed to the sky having regard to the  fact that  the underground market is centrally airconditioned. We can  take judicial   notice  of  the  tact  that  the   central   air- conditioning plant would not be functional unless there were these  bunkers constructed over the staircases. That is  how the staircases are covered at the Palika Bazar in New Delhi. Furthermore, the bunkers have been constructed according  to the  architect’s  plan  duly  sanctioned  by  the  Municipal corporation.                                                   PG NO 1023     Shri Somnath Chatterjee, learned counsel for respondents Nos. 13 and 14 rightly draws our attention to the finding of the  learned Single Judge indicating that the four  storeyed building has been constructed to locate the staff  quarters. Since the underground market is fully air-conditioned, it is essential  that the maintenance staff should be  located  in the  park  itself. Originally, there was a  single  storeyed building  covering an area of 150 square metres.  The  newly constructed four storeyed building now covers only 72 square metres i.e. practically half the area earlier occupied.  The learned Single Judge has also pointed out that in cl. (3) of the  agreement  it  has been  mentioned  that  the  existing fittings  and  accessories and structures will  have  to  be dismantled and the dismantled materials will be the property of the Municipal Corporation. Cl. (4) provides that prior to the aforesaid demolition of the existing staff quarters  and other infra-structures like pump room etc. which are in use, alternative  arrangement  shall  have  to  be  made  by  the licensee ’for re-location of staff quarters and other infra- structures elsewhere which are necessary for maintaining the existing  service  during the construction period  and  then finally  to  rehabilitate  them  in  the  premises  by   the

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licensee.  The agreement further provides that the  cost  of temporary  re-location  and final  rehabilitation  shall  be borne by the licensee. The learned counsel pointed out  that Shri Justice Umesh Chandra Banerjee in his judgment has also made a mention of overhead water tanks. It has been recorded therein as follows:     "In any event. the scheme has been approved by the  West Bengal Fire Service since adequate provisions have been made for  supply of water in case of necessity. 55000 gallons  of water  will  be available at the park, once  the  scheme  is implemented.  Apart therefrom, a further- 38000  gallons  of water  will be available at the Lily Pool and 17000  gallons of water at the overhead water tanks     In the premises my judgment records therefore:     (a)  that there be some structures atop the  underground market, and     (b)  that  there would also be overhead tanks  with  the storage  facility of about 17000 gallons of water.  Question of there being an overhead tank would not arise unless there are constructions atop the underground market.                                                   PG NO 1024     The  other aspect of the matter which ought also  to  be noticed is that the licensing agreement itself provides  for approval  of the drawing and design by the licensor  and  in fact  drawings and designs as appears from the records  were approved  and  constructions were effected as per  the  plan sanctioned   by  the  Calcutta  Municipal   Corporation   in accordance  with the Building Rules. There is no dispute  as to  the  factum  of  such  a  construction  being  made   in accordance with the sanctioned plan."     Shri Chatterjee further drew our attention to  paragraph of  the judgment delivered by the Division Bench wherein  it has been stated:     "After demolishing the old structures the trust had laid a  public  park commonly known as Satyanarayan  Park  having approximately  an  area  of  20,000  sq.  ft.  The  Calcutta Improvement  Trust  had  made  over the  said  park  to  the Calcutta  Corporation  now  known as  Calcutta  .  Municipal Corporation  (The Corporation for short) for the purpose of maintenance at its own cost.     This  fact also finds mention in the order delivered  by this  court. It would appear that the area of the said  park initially  was  about  28 cottahs  corresponding  to  20,000 square  feet.  In  the  licence it  appears  that  the  area mentioned  in   2500  square metres   equivalent  to  26,900 square feet. As such. by no stretch of imagination can it he asserted   that a substantial portion of the park  has  been covered by encroachment and the statement that there  cannot be  a  park   or a  terrace garden  as  visualised  by  this Court’s   order  runs  counter  to  the  existing  stale of affairs.     To sum up. the learned Single .judge very  rightly   and properly    addressed himself to the question whether  there was  a breach of the terms and conditions laid down  in  his Judgment.  leaving  the  question open  for  this  Court  to determine   whether  there  was  any  deviation   from   the conditions set forth by the Division Bench or by this  Court in appeal. We fully concur with the finding and reasoning of the learned Single Judge as also his approach     There can be no doubt whatever that there  is no  breach either  of      the conditions laid down by this  Court  or the Division Bench of the       High Court. The construction of  the hunkers over the there staircases       leading  to the  underground  airconditioned market as well  as  of  the four storeyed building were in the architect’s plan and were

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expressly   permitted in the licence and formed part of  the sanctioned    plan. It was therefore present in the mind  of all concerned including the Chief Municipal Architect & Town                                                   PG NO 1025 Planner  as  also of the  Administrator  of  the  Municipal Corporation   while   planning  th   construction  of   the underground  airconditioned  market  that  these  structures would  be built up. As already stated, the  construction  of the  bunkers  over  the three staircases  was  a  matter  of absolute necessity to make the central airconditioning plant fully   functional.   That  is  how  a   fully   underground airconditioned market can be conceived, as   has  been  done in  the  Palika  Bazar in Connaught  Place,  New  Delhi.  As regards  the  four  storeyed  structure,  the   construction thereof  does not constitute breach of the  conditions  laid down.  It  has already been stated that  the  four  storeyed structure  is built to provide residential quarters  to  the staff  and actually now it occupies much lesser  space  than before.  In  the  premises,  the  allegation  made  by   the applicant that the aforesaid structures cover a  substantial portion  of  the  surface of the park which  cannot  now  be turned  into  a  terrace garden with a  lush  green  lawn,is wholly  unfounded. We have already mentioned that the   area of  land  covered  by structures acquired  by  the  Calcutta Improvement  trust  for laying of a park in  the  Burrabazar area was 20,000 square feet  whereas the area of the park in question as mentioned in the licence is 26,900 square  feet. These  peripheral structures now built are  therefore   well outside the area of the Satyanarayan Park proper.     The  applications for contempt must therefore  fail  and are  dismissed  with  costs. We  cannot  but  deprecate  the attempts  made by the applicants to move the High  Court  as well as this Court time and again on one pretext or  another in  a  frantic  effort to prevent the  construction  of  the underground airconditioned market at Satyanarayan Park which is  a  part  of  the  beautification  scheme  of  the  great metropolitan   city of Calcutta by the State  Government  of West  Bengal  where a party in opposition is  in  power,  to provide  civic  amenities to the citizens. It  is  fortunate that  these  attempts by the making of false  and  vexatious applications to hold up the construction of the  underground airconditioned market, the estimated cost of which is  about Rs. 4.50 crores, have been frustrated and what was conceived of  a  development scheme has come to reality. The  work  of construction  is nearing completion, as is evident from  the photograph  annexed  to  the report of  the  learned  Single Judge,   and  we  hope  and  trust  that   the   underground airconditioned  market  would be commissioned  in  the  near future, and the terrace garden over the market will  provide to  the amenities to the people living in the locality as  a place for recreation besides playground for the children.  H.S.K.                                  Petitions Dismissed.