JUDGMENT
D.Y. Chandrachud, J.
1. The original writ petition being Writ Petition No. 1625 of 1993 was filed by Ashok Kumar Jain & Co. through its proprietor Rampal K. Jain, in which orders dated 19th January, 1990 and 16th March, 1993 respectively passed by the competent authority under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and in an appeal there against were sought to be impugned. The writ petition was admitted and ad interim stay in terms of prayer Clause (c) was granted by an order dated 27th October, 1993. On 27th April, 1994, the ad-interim order was confirmed. The grievance of the petitioner in the writ petition is that though the shop which he was occupying being Shop No. 9 situated on the premises of the Central Railway at Thane was protected by the interim order passed by this Court, the shop came to be demolished on 28th July, 2000.
2. An affidavit in reply has been filed in these proceedings by Mr. Vijay Kitke, Dy. Chief Engineer (Construction) (M.T.P.), of the Central Railway. In the affidavit in reply, it has been stated that the work of demolition of shop Nos. 1 to 8, 10, 11, 13 to 15, 18, 20 and 22 was entrusted to the demolition escort. However, it has been stated that inadvertantly, shop No. 19 has been demolished by the driver of the J.C.B., Abdul Kaish Shah whose affidavit has also been annexed to the reply filed on behalf of the respondents. A letter dated 27th July, 2000 written by the Executive Engineer to the Senior Inspector of the Kopri Police Station, Thane (East) on 27th July, 2000 has also been annexed in which it has been stated that 16 unauthorized shops on the site belonging to railways at Thane (East) were required to be demolished for the purposes of the railway project. This letter has been relied upon for the purposes of establishing that the said 16 shops did not include shop No. 19 belonging to the original petitioner in the writ petition and that the demolition took place inadvertently.
3. In the reply, which has been filed on behalf of the respondents, by the Dy. Chief Engineer, it has also been stated that the respondents while tendering an unconditional apology to this Court for the action which took place are ready to make amends in such manner as this Court may direct. When the petition came up for hearing, the learned Additional Solicitor General appearing on behalf of the respondents stated that the respondents will abide by any directions which may be issued by this Court. It was also submitted that the respondents would if this Court were to so direct, even be ready to reconstruct the structure which was demolished since the lands which were required for the Thane Trubhe Nerul Vashi project of the railway. According to the railways the actual railway track was required to be laid at site. However, it was submitted that before an order of reconstruction is passed by this Court, it would be necessary for the Court to be satisfied that the claim which has been made in the contempt petition is on behalf of the very same person, who was the petitioner before this Court in the main writ petition. The submission on behalf of the respondents was that the contempt petition appears to have been filed not by the original petitioner who moved this Court in the writ proceedings, and to whose benefit the protective order of this Court enures, but by some third party which appears to have been placed in possession of the premises.
4. The writ petition which is filed in this Court being Writ Petition No. 1625 of 1993 was instituted by Ashokkumar Jain & Co. through its proprietor Rampal K. Jain. During the course of the hearing, the original papers of the writ petition were produced before the Court. A perusal of the writ petition shows that though the writ petition has been filed in the name of Ashokkumar Jain & Co. by its proprietor Rampal K. Jain, the petition has been verified by one Dharmadas B. Ahuja as the constituted attorney of the petitioner. The contempt petitioner has been instituted in the same of Ashokkumar Jain & Co. through an individual by the name of Manoj V. Bhagnani, who claims to be a Manager. On an enquiry by the Court, the learned Counsel appearing on behalf of the petitioner stated that the original petitioner has transferred the shop on the basis of a power of attorney. The power of attorney has not been produced in the Court and is not available with the person who has affirmed the contempt petition and who is present in the Court. In my view, it was necessary for the petitioner while moving this Court in the exercise of its contempt jurisdiction to make a fair and candid disclosure of the transaction which had taken place in regard to the premises after the writ petition was filed. That has evidently not been done. In fact, in the contempt petition the words “proprietor Rampal K. Jain” which originally appear in the typed copy of the cause title have been scored out and the name “through Manager Manoj J. Bhagani” have been inserted. In these circumstances, while there is no doubt that the demolition took place of shop No. 19 despite the order passed by this Court, it would not appear from a reading of the petition that a bona fide claim has been made by the original petitioner., who had filed the writ petition in this Court. This is improper. All litigating parties are expected to make a fair and candid disclosure of material facts. More so in a contempt petition where the power of this Court to punish for contempt are sought to be invoked. There has been a complete lack of bona fides on the part of the “petitioner” in pursuing these proceedings. Recourse to the contempt jurisdiction would thus not be appropriate.
5. The learned Counsel appearing on behalf of the petitioner, then, submitted that the petitioner may be given an opportunity to produce before the respondents all the relevant material to show the manner in which the property has been transferred from the original petitioner, who filed the writ proceedings in this Court to his client. On the set of the record as it stands, it is not possible to verify as to whether the person who has verified the contempt petition is only a manager of the firm Ashokkumar Jain & Co. or claims an independent interest in the shop premises. In these circumstances, I am of the view that having regard to the affidavit which has been filed on behalf of the respondents, the unconditional apology which has been tendered on behalf of the respondents should be accepted by the Court. From a perusal of the affidavit in reply, it does not appear that a wilful and deliberate attempt was made on behalf of the concerned officers to breach the orders passed by this Court. In fact, the statement in paragraph 8 of the affidavit in reply about the exact number of the shops which were to be demolished would conform to the letter addressed by the Executive Engineer to the police authorities on 27th July, 2000 setting out that 16 unauthorized shop were to be demolished.
6. Ordinarily in a matter of this kind, where a demolition of shop premises protected by an interim order of this Court has taken place, the Court would have been inclined to direct the respondents to reconstruct the shop forthwith. In the present case, however, on the basis of the material which has been placed on the record, the capacity of the petitioner to make the claim and his bona fides are not established. In this view of the matter, and on the request of both the learned Counsel, it is directed that the petitioner will be at liberty to produce before the Senior Divisional Engineer of the Central Railway all documents and material to show the capacity in which the petitioner claims to occupy the premises. The learned Counsel for the petitioner is agreeable to produce all the material before the Senior Divisional Engineer within a period of two weeks from today so as to enable the competent authority to determine the nature of the claim which had been made by the petitioner to be in occupation of the shop, which was the subject matter of the demolition action. In the event of the petitioner producing sufficient material to show his lawful right to occupy the premises, the respondents agree to reconstruct the shop premises at the same location or near the premises where the shop was at the discretion of the respondents. The competent authority of the railways shall take an appropriate decision within a period of three weeks of the petitioner making a representation to the railway authorities.
7. Mr. Samant appearing on behalf of the Contemnor Nos. 3 and 4 states that Contemnor Nos. 3 and 4, have in any event not had any role to play in the demolition action. Similarly, an affidavit has been filed on behalf of the Contemner No. 1, V.N. Mittal, that he had been transferred on 5th June, 2000 and that he had, therefore, no role to play in the demolition action.
The contempt petition is accordingly disposed of.
Parties to act on an ordinary copy of this order duly authenticated by the Court stenographer of this Court.