Dismissed

Cyrus Pestonji Dubash of Bombay v. Smt Hilla W/O Mancherji Betiwala and Anr.

Bombay HC9 Apr 2010CP/433/2006

Case brief

AI extract

What is this about?

In a Contempt Petition, the Court considered allegations of breach of an interim status quo order. The Court held that the alleged acts did not amount to willful disobedience and that contempt jurisdiction was not exercisable hence discharging the notice.

What did the court decide?

Notice issued in the Contempt Petition discharged and the Contempt Petition disposed of.

Cyrus Pestonji Dubash of Bombay Vs Smt Hilla W/O… — Writ and Judicial Review | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 433 OF 2006 IN WRIT PETITION NO. 5776 OF 2002

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Cyrus Pestonji Dubash. .. Petitioner Vs Smt. Hilla w/o. Mancherji Batiwala & Ors. .. Respondents

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Smt. S.S. Gokhale for the Petitioner. Shri G.N. Salunkhe for the Respondent No.1.

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CORAM : A.S.OKA, J. DATE : 9TH APRIL, 2010

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P.C:

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. Heard the learned counsel appearing for the Petitioner and

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the learned counsel appearing for the 1^st and the 2^nd Respondents. The order dated 29^th January, 2007 shows that only a notice was issued to the 1^st and the 2^nd Respondents. Therefore, the cognizance of the alleged contempt was not taken by this Court within the time provided under the Contempt of Courts Act, 1971. Nevertheless as the submissions have been made and the notice has been issued, I have dealt with the submissions. The allegation is of breach of interim order dated 17^th December, 2002 passed by this Court in a Writ Petition which is disposed of today by a separate order. Adinterim order was passed on 14^th October,

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2002 by this Court directing the parties to maintain status quo till further orders. By an order dated 17^th December, 2002, the adinterim relief was confirmed as the interim relief and the rule was issued on the Writ Petition. In Paragraph 4 of the Petition, it is alleged that on or about 5^th November, 2006, when the Petitioner visited the Survey No. 42/4+5+6+8/3 and Survey No. 42/4+5+6+8/2, he found that the stones and sands were found excavated by J.C.B. Machines and were unloaded into a tractor trolley. It is alleged that the stones and sands were despatched to Survey No.35/2 to 5/1 and Survey No.35/2 to 5/2 which belongs to one Dubash and the contemnors. It is further alleged that the stones and the sands were used for levelling the lands of the contemnors and for erecting boundary walls. It is alleged that a complaint was filed to the Police Station by the Petitioner and no action was taken. It is alleged that 40 laborers were engaged by the contemnors and they were occupying the premises of the Petitioner and the said labourers have built up temporary huts and have been using the well water belonging to the Petitioner. It was alleged by the Petitioner that the contemnors have taken out the pipe line from his well and have brought the same to the boundary of the Survey No.42/4+5+6+7/3 and are selling water by using diesel pump with the help of one Cyrus Dubash. Reliance is placed on the photographs and the complaints filed to the police and the other authorities.

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There was a reply filed by the alleged contemnors in the

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Contempt Petition. One of the contentions raised in the reply is that the order of status quo relates to the electricity connection and it cannot relate to the possession. The allegations made in Paragraph 4 of the Contempt Petition have been specifically denied in Paragraph 9 of the Reply. There is a rejoinder filed by the Petitioner. In the rejoinder, it was submitted that the order of status quo affects the act of taking water from the well and cultivation of his lands.

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The challenge in the Writ Petition is to the order dated 22^nd October, 2001 passed below Exhibit – 66 and confirmation of the said order by the District Court by the judgment and order dated 8th August, 2002. The prayer made by the Petitioner in the application at Exhibit66 will have to be considered which is a very limited prayer for restraining the 2^nd Defendant from taking the electricity connection and from installing electric meter on the well on the lands bearing Survey Nos.41 and 42, Panchgani till final disposal of this Suit. The impugned order was passed on the said application at Exhibit66 by which the said application was rejected.

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Thus, even if the Petitioner was to succeed in the main writ petition, the only order which can be passed is of restraining the 2^nd Respondent/2^nd Contemnor from taking electricity connection on the well on the Survey Nos.41 and 42 from MSEB. The order of status quo will have to be read in the context of the prayers made in the Application at

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Exhibit66. Therefore, taking the allegations in the Paragraph 4 of the Contempt Petition as it is, it is not possible to accept that there is any willful disobedience of the order of status quo on the part of the contemnors. Even otherwise also, this is not a case where jurisdiction under the Contempt of Courts Act, 1971 can be exercised.

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Hence, the notice issued in the Contempt Petition is discharged and the Contempt Petition is disposed of. Needless to say that the observations made in this order are for the purposes of considering the merits of the Contempt Petition.

Cyrus Pestonji Dubash of Bombay v. Smt Hilla W/O Mancherji Betiwala and Anr.

Case brief

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Cyrus Pestonji Dubash of Bombay v. Smt Hilla W/O Mancherji Betiwala and Anr.

Case brief

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