MUHAMMAD MUZAFFARUDDIN KHAN Versus CITY DISTRICT GOVERNMENT

ORDER

FAHIM AHMED SIDDIQUI, J.--- The petitioner has filed C.M.A. No. 10360/2016 through which he requested to initiate contempt of court proceedings against the alleged contemnors/ respondents on the ground that they have flouted the order of this court passed on 20-09-2012. The notices were issued to the alleged contemnors/ respondents who filed their comments and counter affidavits.

2. It is the case of the petitioner/applicant that through the instant petition the petitioner has assailed the judgment of the District Judge (Central)/Encroachment Tribunal and after hearing, the petition was disposed of by consent Order dated 12-05-2006. Before entering into further discussion, we think it will be appropriate to reproduce the operating part of the consent order dated 12-05-2006, which reads as under

"1. The respondents shall invite the bid in respect of the property bearing No. ST-1/1, admeasuring 2288.00 sq. yds., situated in Sector 12-D, North Karachi Industrial Area, Near Gabol Town, Karachi (Central), which is presently in possession of the within two months. The petitioner will be at liberty to participate in the auction proceeding.

2. In case, the pricing option is received higher than what is offered by the petitioner then the petitioner will be given first right of refusal to match the highest price. Right of refusal to be exercised within seven days from the date of auction.

3. In case petitioner is the highest bidder, or otherwise he exercises first option of refusal as given in para 2 above, amount deposited by petitioner shall be adjusted towards total consideration.

4. In case petitioner is not successful or do not exercise the right of refusal, his amount shall be refunded within two weeks there after and petitioner shall vacate and hand over the possession to respondent.

It is, however, made it clear that unless the auction is held and finally decided, the possession of the petitioner may not disturb. Nor the petitioner will create any third party right or interest."

Earlier to the instant application, petitioner filed another contempt application (C.M.A. No. 15077/2012) alleging therein that the respondents have violated the consent order dated 12-05-2006. At the time of disposal of the earlier contempt application, the order referred to in the instant application was passed, which is actually the continuation of the final order referred above, in which the time for auction was extended. In the instant contempt application, it was alleged by the petitioner that the order dated 20-09-2012 is disobeyed by the alleged contemnors and they are dispossessing him in sheer violation of order dated 12-05-2006.

3. We have heard the arguments advanced and gone through the counter affidavits filed by the alleged contemnors. It is revealed from the counter affidavits of alleged contemnors Nos. 2 and 3 that in compliance of the order of this court in the instant petition, the plot in question was put on auction for which a higher bid was received and it is argued that the petitioner did not take part in the auction proceedings. The learned counsel for the petitioner stated that the alleged contemnors had not issued a notice to him as such the petitioner could not take part in the auction proceedings. According to him, publication of auction notice in a newspaper was not sufficient but a separate notice was to be issued to the petitioner for participation in the auction proceedings. The counsel for the respondents/alleged contemnors submitted that publication of notice was sufficient and there was no need to issue a notice to the petitioner.

4. In the instant matter, it was the direction of the court that the bids in respect of property in question should be invited within a month from the date of order i.e. 20-09-2012. It transpires from the order dated 21-01-2014 that the bids are invited with some delay. We consider that such delay in inviting bid itself is not amounting to flout the order passed by this court. Contempt of court is a very serious matter which is always between the contemnor and the Court and the same cannot be initiated at the whim and wishes of any of the litigants. Before initiating the contempt proceedings, it is necessary that the Court has to be satisfied as to whether the act of alleged contemnors comes within the mischief of the law or amounting to interference with the administration of justice. Contempt proceeding cannot be initiated unless it is shown that the alleged contemnors acted recklessly and with the open motive of disrespect to the authority of court. Directions in orders dated 12-05-2006 and 20-09-2012 were followed by the contemnors by putting the plot in question for auction. Delay in putting the said plot for auction is apparently not with open motive to disrespect of the authority of court. It is settled law that if the action of public functionaries is not tainted with mala fide then it cannot be termed as contemptuous. In this respect reliance may be taken from the case of Khyber Zaman and others v. Governor State Bank and others (2005 SCMR 235).

5. As in the instant matter, the auction proceeding has been conducted as per the direction of this court. Notices for auction were published in different newspapers. Neither there was any direction nor does it appear to be rational that a separate notice should be communicated to the petitioner for auction. After the final order passed in the instant petition, it was the duty of ths petitioner to remain vigilant and to appear in the auction proceedings if he was willing to participate in the bid. As he has not participated in the auction proceedings, therefore, no question of matching the bid arises. He may could have a right to match the higher bid if he himself had participated in the auction proceedings. However, as per order dated 12-05-2006, the petitioner has the right to get back the amount deposited by him with the respondent for which respondent has shown their eagerness during hearing of the instant application.

6. In view of the above, it is our considered view that the orders dated 20-09-2012 and 12-05-2006 passed by this court have been complied with by the respondents as such the instant contempt application is dismissed with no order as to cost.

The above are the reasons for our short order dated 24-01-2017.

MH/M-24/Sindh Application dismissed.