Dismissed

Smt. Asma Azam Bubery v. Shri. Faizan Ahmed Azmi

Bombay HC13 Jun 2013CP/252/2012

Case brief

AI extract

What is this about?

In Contempt Petition No. 252 of 2012, the petitioner alleged breach of an interlocutory order restraining construction and creation of third-party interests. The single judge found that illegal construction did not warrant contempt proceedings as the planning authority already demolished it, and the alleged tenancy agreement was ante-dated. Consequently, the petition failed.

What did the court decide?

Contempt petition failed; same dismissed; notice discharged.

Smt. Asma Azam Bubery Vs Shri. Faizan Ahmed Azmi — Contempt of Court | Bombay HC (2013)

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CP252_12.sxw

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION

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CONTEMPT PETITION NO.252 OF 2012

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Smt. Asma Azam Bubery	…	Petitioner
Vs.
Shri Faizan Ahmed Azmi and others	…	Respondents

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Mr. Niranjan P. Shimpi for the Petitioner. Mr. P. M. Pradhan for Respondent No.1. Mr. Aniket V. Nikam for Respondent No.2.

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CORAM : R. G. KETKAR, J. DATE : 13^TH JUNE, 2013

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P.C.:

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Heard Mr. Shimpi, learned Counsel for the appellant, Mr. Pradhan, learned Counsel for the respondent No.1 and Mr. Nikam, learned Counsel for the respondent No.2 at length.

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This Contempt Petition is filed alleging breach of the order dated 20.04.2011 passed by this Court (Coram: A. S. Oka, J.) in Civil Application No.1614 of 2010 in First Appeal No.633 of 2010. By that order, this Court permitted the respondent No.1-original plaintiff to carry on construction during the pendency of the first appeal and the same is subject to the final outcome of the appeal. This Court also restrained the respondent No.1 from creating third party interests and from parting with the possession of any portion of the structure constructed on the suit property without seeking prior permission of this Court.

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Mr. Shimpi submitted that in the first place, the respondent No.1 has carried out illegal construction. Secondly, respondent No.1 has also created third party interests thereby violating the order dated 20.04.2011. Mr.

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CP252_12.sxw

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Shimpi fairly stated that since the respondent No.1 carried out illegal construction, on the complaint made to the planning authority, the said construction is demolished. I, therefore, do not find any merit in the submission of Mr. Shimpi that the respondent No.1 has committed breach of the order dated 20.04.2011 by carrying out illegal construction. This Court has permitted the respondent No.1 to carry out construction which is subject to the outcome of the Appeal as also he will not claim any equity on the ground that he has been permitted to carry on construction. If at all, the respondent No.1 has carried out illegal construction, remedy is to make grievance to the planning authority. Accordingly, the petitioner had complained to the authority concerned and in fact, on that complaint, the authority had demolished the structure.

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Insofar as violation of the order of restraining respondent No.1 from creating third party interests is concerned, Mr. Shimpi invited my attention to the reply dated 24.05.2012 given on behalf of the respondent No.1 to the notice dated 09.04.2012 issued on behalf of Mr. Aftab Hasan Nadkar and four others. In particular, he invited my attention to paragraph 2 of that reply wherein it is stated that the order restraining respondent No.1 herein from creating third party rights in the said land and the construction made thereon became operative since 24.02.2011. He also invited my attention to paragraph 5 of that reply wherein it is stated that two power-loom galas admeasuring 70 ft x 25 ft each in the said land have been let out to Mr. Khan Bismillah Mohd. Zama on rental basis vide tenancy agreement dated 29.03.2011. Mr. Shimpi, therefore, submitted that the respondent No.1 has acted in breach of the order passed by this Court.

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Mr. Shimpi further fairly stated that the restraint-order was for the

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CP252_12.sxw

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first time passed on 20.04.2011 and not on 24.02.2011 as has been set out in the reply dated 24.05.2012. He, however, submitted that the tenancy agreement dated 29.03.2011 is ante-dated so as to claim that there is no violation of order dated 20.04.2011. I do not find any merit in this submission as Mr. Shimpi was unable to point out such plea from the Contempt Petition. In view thereof, I do not find this is a fit case for taking action against the respondents under the Contempt of Courts Act, 1971. Therefore, the Contempt Petition fails and the same is dismissed. Notice is accordingly discharged.

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(R. G. KETKAR, J.)

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Minal Parab

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Smt. Asma Azam Bubery v. Shri. Faizan Ahmed Azmi

Case brief

What is this about?

What did the court decide?

Smt. Asma Azam Bubery v. Shri. Faizan Ahmed Azmi

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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