SHAFIQ AHMED MEMON Versus MOHAMMAD SIDDIK
SALAHUDDIN PANHWAR, J.--- By dint of this order I intend to decide the captioned applications being C.M.A. No.12641 of 2010, filed by the defendant No. 1 under sections 3 and 4 of Contempt of Court Act.
2. Succinctly, relevant facts, giving rise to instant application are that defendant No.1/applicant constructed Al-Mariam multi storey project consisting on two blocks i.e A and B with four gates, along with a garden; a decorated semi circular wall with a gate near said garden. One Shafiq Ahmed filed the suit No.551 of 1991 against defendant No.1 and others with different prayers, including one for mandatory injunction to the effect that: 'directing the defendants Nos.1 and 2 to remove walls and other unauthorized construction in the compulsory open space of the Al-Mariam building.'
3. The suit was contested by defendant No.1/applicant, however, later this Court considering the report of official assignee and hearing the parties decreed the suit by order dated 20.5.1992 whereby defendants Nos.1 and 2 were directed to remove one wall ("IJ" in Assignee's Sketch), whereas with regard to semi circular decorated wall with gate, masonry wall were left at legal remedies available to parties at the level of K.B.C.A or court of law. The defendant though challenged aforementioned decree by filing HCA No.98/1992 but same was dismissed for non-prosecution.
4. It is further claim of the defendant No.1/applicant in his contempt application that one time Amnesty Scheme was announced in year 2004 for regularization of unauthorized structures and defendant No.1 applied for regularization of unauthorized construction raised in the project Al-Mariam and after payment got it authorized /approved. Later Mr. Shafiq Memon, the plaintiff in main suit No.551/1991 moved contempt application regarding regularization of unauthorized construction. The matter was processed and during hearing of contempt application on 17.02.2010 it was ensured by contemnor Mr. Manzoor Qadir, Chief Controller of Buildings that violation, if any, committed by defendants Nos.1 and 2 shall be removed thereupon this court observed that KBCA in discharge of their duties will examine as to whether there is any violation and if so, the same shall be removed. Defendant No.1 was later issued show cause notice dated 08.3.2010 by Deputy Controller of Buildings-II Jamshed Town wherein directing to remove walls and other unuathorized constructions; correspondence continued and even earlier regularization was said by authority to be result of oversight. However, later the report was submitted by Deputy Controller of Buildings, Jamshed Town KBCA that under the orders of competent authority walls have been demolished.
5. In above back ground, the defendant No.1/applicant has filed the contempt application while asserting that since there was no order of this court for demolishing of the walls hence the contemnors are guilty of the contempt of the Court order.
6. The objection(s) against contempt application were filed whereby it was asserted that suit was decreed against the defendant No.1/applicant with direction to remove walls within 15 days but he failed so contempt application was filed; it was specifically pleaded that no illegality was committed by alleged contemnors and they acted in bona fide, hence prayed for dismissal of the contempt application.
7. Learned counsel for the defendant No.1/applicant, inter alia contends that since the act of the demolishing was beyond the scope of the order of this court therefore, the contemnors are guilty of the contempt and that the contemnors 'deliberately exceeded their authorities while demolishing the structure of the defendant No.1/applicant.
8. On the other hand, the claim and assertions of the defendant. No.1/applicant was denied by the side of the contemnors on the same assertions as made in the objetions with prayer for dismissal of the Contempt application.
9. I have heard the respective sides and have gone through the available record.
10. Before addressing the issue, involved in above C.M.A., it would be significant to mention that question of contempt of Court is purely an issue between the Court and contemnor(s); anyone may act as an informant to bring the Court into notice that there is contempt of Court, however, such right shall not authorize the informant with a right to continue acting so but his duties comes to an end on submitting information and then starts function of the Court. It is the Court itself alone which has to see whether to take cognizance onto information or otherwise. At this stage, it would be conducive to refer the case law reported as Khalid Rashid v. Kamran Lashari, Chairman, C.D.A., Islamabad and others (2010 SCMR 947) paragraph 7 whereof is as under:-
7. We have given our anxious consideration to the contentions of the learned counsel of the parties and also perused the record. It is pertinent to mention here that the appeal was disposed of on 15-4-2008 in the aforesaid terms mentioned hereinabove. Contentions which have been raised before us by the learned counsel of petitioner on merits with regard to change of the master plan or creation of plots in open area east of Plots Nos.22, 24, 25 and 26 have no force which can be relevant to resolve the controversy between the parties at the time of deciding the main Civil Appeal No.1637 of 2007. The question before us is of to examine whether respondents have violated their undertaking which was made before this Court on 15-4 -2008? It is better and proper to highlight principles qua initiation of contempt proceedings or not as under:--
(i) That the proceedings cannot be initiated at the desire of a litigant party.
(ii) The Court has to be satisfied as to whether act of respondents comes within the mischief of law or otherwise amounting to interference with the administration of justice,
(iii) The very purpose of initiating contempt proceedings is always vindication of dignity and honour of the Court or that of the justice of administration.
(iv) That once undertaking given to the Court by a party or on his behalf of his counsel it becomes bound to fulfill the same on the ground that undertaking has exactly the same force as an order made or in injunction issued by a Court as law laid down by Full Bench of the Lahore High Court headed by Sardar Muhammad Iqbal, C.J (as his Lordship then was) in Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580 and Khyber Zaman's case 2005 SCMR 235.
(v) This Court is not bound to start contempt proceedings unless it is shown that the alleged contemnor acted recklessly and with the open motive to show his disrespect to the authority of the Court.
(vi) Instead of starting such proceedings, this Court preferred to adopt the principle of "Afwoo" as recognized by Muslim Jurisprudence. See Shah Alam Khan's case PLD 1993 SC 297.
(vii) Contempt is always between the contemnor and the Court. See Sarfraz Hussain's case, 2005 YLR 337. This question of law has also been considered by Calcutta High Court in Tarit Kanti Biswas' case AIR 1918 Ca1. 988.
11. Having been clear and specific about the status of an informant, coming forward with an information of contempt of court and the fact that information should also disclose that alleged contemnors acted recklessly and with the open motive to show his disrespect to the authority of the Court, upon this touch stone let's examine the instant matter that "whether there is any thing in field which could be taken by this Court to hold as "its contempt by contemnors".
12. It is pertinent to mention that there has been nothing on record which could show that at any time this Court ordered the alleged contemnors not to demolish/remove the wall but it is an admitted position that the matter was left at discretion of the authority to act according to law on issue of removal of unauthorized construction etc. which too within consent/understanding of defendant No. 1/applicant. The authority acted within its own jurisdiction and authority and did demolishing. Now the question crept is whether such act on part of the authority (contemnors) can be termed to be as "contempt of court or otherwise?".
13. To bring an act within meaning of contempt it should be shown that alleged contemnors acted recklessly and with the open motive to show his disrespect to the authority of the Court else act complained would not require initiation of cognizance against contemnors. In the instant matter there is no restraining or directive order for not doing or doing a particular act hence in absence thereof it is not legally justified to hold an independent act of an authority as contempt of court. An independent act or omission, prima facie not showing any disrespect, unless declared /found to be recklessly done with a motive to disrespect the authority of the Court would require determination as an independent issue cannot be undertaken in such proceedings. Worth to add here that since the act of demolishing would also require determination of issue i.e regularization or its subsequent declaration by authority which can also not be decided in pending proceedings.
14. Thus, whether the contemnors exceeded their authority and jurisdiction is entirely a different and independent issue which has no nexus with 'contempt of court'; such act would give right to the defendant No.1/applicant to seek necessary declaration coupled with damages which would be a proper and adequate legal remedy.
15. In view of above, I am of the clear view that information, placed before this Court for initiating contempt proceedings, does not, prima facie, show that the act complained falls within meaning of contempt of court or that act (demolishing under order of competent authority as was pleaded by contemnors) was a recklcss act of contemnors with a motive to disrespect the authority of court. Accordingly, the instant application is hereby dismissed. However, the legal remedies available to defendant No.1 with demolishing and procedure thereof shall be available to him, if he so wishes.
MH/S-100/Sindh Application dismissed.