CALCUTTA YOUTH FRONT & ANR.versusSTATE OF WEST BENGAL & ORS.

                      CALCUTTA YOUTH FRONT & ANR.
                                            v.
                       STATE OF WEST BENGAL & ORS.

                                SEPTEMBER 12, 1988

                          [A.P. SEN AND B.C. RAY, JJ.]                            B

               Contempt of Courts Act, 1971-Court laid down terms and condi-
         tions for constructing underground market at Calcutta-Applicants
         alleged violation of the terms-Court asked Single Judge of High Corm
         to submit a report-Single Judge found no violaiion~Court considered
         the report and found no violation of its order-Held no contempt of
         Court committed.
                                                                                  c
               Contempt of Courts Act-Attempts to move Court time and again
         alleging contempt of Court which is unfounded be deprecated.

                Th• applicants tiled a contempt petition under Contempt of O'
         Courts Act against the respondents (some high officers of the €alcutfa
         Municipal Corporation) and the lessees, respondent Nos. 13 and 14,
         who were given contract for construction alleging that they were guilty
         of contempt in that they had constructed the underground market in
         breach of the terms and conditions laid down by this Court in its order
         dated 18th August, 1987. The applicants submitted that the officers bad E
         permitted the lessees, to construct an underground air-conditioned
         market at Satyanarayan Park and that they bad connived and acquies-
         ced· in permitting the l~ssees ~o construct four pucca structures of is feet
         in height above the road level 11artly convering. the surface of the park
         and covering a• major portio11, 0£ the· surface of the· Park. They alSo
         alleged that the construction· of the four storeyed· quarters (service F
         block) were also- in violation of the conditions. The respondents· con"-
         troverted' tl\ese facts. The matter was referred to the Single Judge oftbe·
         High Court who had earlier heard the matter and whose decision had
         been confirmed by a Division Bench of the High Court and by this
         Court, to hold an enquiry as to whether there was a violation ·of the
         judgment and order passed by him: The Learned Single Judge person- G
         ally visited the site and heard the parties. He submitted his report
         containing his visual impressions and holding that there was no viola~
         tion of any directions given by him in his judgment and the questfon of
         committting any contempt of the judgment does not and cannot arise:
· ' I'   He left the question open for this Court to determine whether there· was
         any derivation from th-. conditions set~forth• lly the Division• Bendl'· H
                                          1017
    1018        SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

    o.rder and by this Court, Rejecting the contentions of the applicants,
A
    aggreeing with the tin dings and reasoning of the Single Judge and dis-
    missing the contempt application, this Court,

          HELD: There can be no doubt whatever that there is no breach
    either of the conditions laid down by this Court or the Division Bench of
B   the High Court. The construction of the so called lofty structures over
    the staircase leading to the underground market, which we may call
    bunkers, as well as of the four storeyed building were in the architect's
    plan and were expressly permitted in the licence and formed part of the
    sanctioned plan. It was therefore present in the mind of all concerned
    including the Chief Municipal Architect and Town Planner as also of          (
    the Administrator of the Municipal Corporation while planning the
c   costruction of the underground air-conditioned market that these
    structures would be built up. As already stated, the construction ofthe
    bunkers over the three staircases was a matter of absolute necessity to
    make the central air-conditioning plant fully functional. As regards the
    four storeyed structure, the construction thereof does not constitute a
D   breach of the conditions laid down. It has already been stated that the
    four storeyed structure is built to provide residential quarters to
    the staff and actually now it occupies much lesser space than before.
    In the premises, the allegation made by the applicants that the aforesaid
    structures cover a substantial portion of the surface of the park which
    cannot now be turned into a terrace garden with a lush green lawn, is
E   fully unfounded. [1024G-H; 1025A-Cj                        ·

          The Court cannot but deprecate the attempts made by the appli- /
    cants to move the High Court as well as this Court time and again on
    one pretext or another in a frantic effort to prevent the construction of
    the .underground air-conditioned market at Satyanarayan Park which
F   is a part of the beautification scheme of the great Metropolitan City of r
    Calcutta by the State Government of West Bengal where a party in
    opposition is in power, to provide civic amenities.to the citizens. It is
    fortunate that these attempts have been frustrated and what was con-
    ceived of a development scheme has come to a reality. [1025E-G]

G         CIVIL APPELLATE JURISDICTION: Civil Miscellaneous
    Petitions Nos. 34114-15 of 1987 in S.L.P. Nos. 5678-79 of 1987.

         From the Judgment and Order dated 18.8.1987 of this Hon"ble
    Court in S.L.P. Nos. 5678-79of1987.

H         Shanti Bhushan, G.L Sanghi and S.R. Srivastava for the
    Petitioners.
CALCUTIA YOUTH FRONT v. STATE OF WEST BENGAL [SEN, J.J 1019

      Somnath Chatterjee, Tapas Ray, A.K. Mitra, B.P. Singh, Mrs.
                                                                           A
Pratibha Jain, S.K. Jain, J.R. Dass and D.K. Sinha for the Respon-
dents.

      The following Order of the Court was delivered by

      SEN, J. By these applications the applicants Calcutta Youth B
Front and its President Hridayanand Gupta pray for committing for
contempt respondents Nos. 3-9 under the Contempt of Courts Act,
 1971, namely: 1. Kamal Basu, Mayor & Administrator, Calcutta
Municipal Corporation; 2. R.K. Prasannan, Municipal Commissioner;
3. B.C. Mitra, Municipal Engineer-in-Chief; 4. B.K. Roy, Deputy
Municipal Commissioner (Sr.); 5. A.K. Sarkar, Chief Municipal
Architect & Town Planner; 6. A.K. Goswami, District Engineer; 7. c
Dr. S.K. Chowdhury, Chief Municipal Health Officer, as well as the
lessees respondents Nos. 13 and 14 Jugal Kishore Kajaria in his indi-
vidual capacity as well as as Director, Messrs Happy Homes & Hotels
Private Limited. The applicants alleged that these respondents were
guilty of contempt in that they had in breach of the terms and condi- D
tions laid down by this Court in its order dated August 18, 1987 in
SLPs 5678-79/87 See JT 1987 3 SC 348 permitted the lessees Messrs
Happy Homes & Hotels Pvt. Ltd. to construct an underground air-
conditioned market at Satyanarayan Park, and that they had connived
and· acquiesced in permitting_ the lessees to construct four pucca
structures ·15 feet in height above the road level partly covering the E
surface of the Park and covering a major portion of the surface of the
Park. It is alleged that the said constructions constitute gross and
deliberate violation of the undertaking of the respondent No. 13 in his
supplementary affidavit dated July 25, 1987 and the terms of the
Court's order dated October 18, 1987. Applicant No. 2 Hridayanand
Gupta in his affidavit dated July 14, 1988 placed reliance on the follow- F
ing observations made by this Court in its order:

           "Under the scheme there would be no construction on the
           park; the underground market would be under the park
           and not over the park. The only difference is that the park
           would be re-located at a height of 6 feet above. the road       G
           level easily accessible by three separate staircases. Uffiler
           the scheme, Satyanarayan Park would become a real park
           with a lush green.garden with tall trees, shrubs etc. and a
           centre for relaxation of the thickly congested Burrabazar
           locality and in particular for the children as a playground."
                                                                           H
    1020        SUPREME COURT lHWORTS               (1988] Supp. 2 S.C.R.

A lt was alleged that the assertion of the cC1ntemnors before this Court,
    as was before the High CC!urt, was that tall trees and/or shrubs would
    !le planted apart frmn the lush green lawn Ni tlie eastern garden under
    the direct .supervision of the Agri-Horticultural Society of India,
    Afipore as per its letter dated July 25, 1987. This, according to the
    ap'j)licants, was nothing b11t a hoax. The applicants allege that the
B llforesaid respondents liave committed deliberate violation of the
    terms artd conditions of this tonrt's order by permitting the lessees to
    construct the aforesaid pucca structures of lofty heights which, apart
    from the four-storeyed building, cover a substantial portion of the
    surface of the park which would make it literally impossible to have a
    terrace garden with a lush green lawn with tall trees, shrubs etc. as a
,.. pface of relaxation, and therefore 1iable to be committed for contempt.
"' They in the meanwhile pray that respondents Nos. 13 and 14, the
    lessees, be restrained from subletting the underground air-conditioned
    park to anyone in the greater public interest. These allegations were
    Controverted by the counter-affidavit of Jagdish Kanjilal, Deputy
    Chief Engineer (Design), Planning & Development Department of the
Q' Municipal Corporation dated February 10, 1988 and that by the lessees
    Jugal Kishore Kajaria impleaded as respondents Nos. 13 and 14. The
    applicants filed rejoinders to these counter-affidavits.

            Having carefully gone through the applications for cont<;mpt, the
     counter-affidavit of respondents Nos. 13 and 14 and that filed on behalf
t of the Municipal Corporation, and having regard to the fact that the
     allegations made in the applications involve controverted facts, we
     thought it expedient to request Shri Justice Uinesh Chandra Banerjee·
     by our order dated April 21, 1988 to hold an enquiry as to whether
     tl'rere was a violation of the judgment and order passed by him, as
     affirmed if! fetters patent appea!by the Division Bench and also by this
JI)' CouYt, and directed him to fo'!'Watd his findings by the second week of
     .foly 1988 th'at direction of ours was not to be construed as meaning
     that there was a breach of the terms and conditions laid down in the
     judgment. It was further directed that the High Court shall not, during
     the pendency of the enquiry, pass any interim order which would tend
     to obstruct or delay the completion of the construction work of the
G underground airconditioned market.

        In compliance therewith, Shri Justice Uinesh Chandra Banerjee
  lias submitted his report holdmg that there was no violation of his
  judgment. The learned Single Judge not only heard the parties but also
  fook the trouble of personally visiting the park and note his observa-
                                                                                ...,   .'




N tions on personal inspection. In the report the learned Judge records
  his visual impression in the following words:
(ALCGTTA YOUTH FRONT '. STATE OF WEST 13ENGAL [SEN, J.J            1021

           "Two open staircases have been provided for an entry onto
           the park apart from the tl1fee other covered entrances A
           which would facilitate emry onto both the Air Conditioned
           M.arket .as well as to the park. The covered entrances are
           more or less at a height of about 15' ft. There are three
           ot!ier units for Air Handling Plants whiclJ are also more ()r
           less at a height of about 15' ft. On the eastern side there is a B
           4 storied bµilc:ling and on the top, a built-in-water reservoir
           has been erected and atop the built-in-water reservoir there
           are existing two huge water cooling tanks.

                 The 4 storied building admittedly has. been cons-
           trµcted in place and steac:I of a one storied building which
           was existing prior to the licensing agreement and popularly C
           known as "Service Block". On visµal examination it
           appears that certain plant and machinery along with a
           switch room are loc;ite\I and housed in the service block."

     The learned Judge then goes on to add:                                D
           "On a close look at the entire nature of construction it
           cannot be said that the area looks totally green with some
           trees on one side, shrubs and other small trees all around.
           In my judgment dated 17th July 1986 I observed:

                 "Lovely lush green park soothing to the eyes would
                 be visµalisec:l since tbe same would be at a raised
                 level. Tall trees have already been re-planted. The
                 entire area in question would have a different loo](:
                 The sceptics might say that this is too much to expect
                 but optimism prompts judicial conscience to allow         F
                 such a project so that prospect of having such an area
                 in the heart of a commercial centre in the city of
                 Calcutta is not ruled out"."

The learned Judge expresses satisfaction that his expectations for
be&utification of the Metropolitan City of Calcutta were not belied, in    G
these words:

           "It seems th!lt tbe judicial optimism has paid a rich divi-
           dend in this particular case and the entire &rea in fact is
           having a decent and sophisticated look. There was not a
           blade of grass on the park prior to the licensing agreemeQt.    H
    1022         SUPREME COURT REPORTS               I1988] Supp. 2 S.C.R.
                But now a lush green lawn is visible and the place in fact
A
                has turned out to be a place for recreation of tax payers-
                place for recreation for the children of the locality and a
                place to wither away the time for the old and aged people."

    Along with the report he has annexed a photograph which depicts the
B existing state of Satyanarayan Park which was once a dark, dangerous
    place frequented by persons with criminal record, has now turned out
    to be a beauty spot in a thickly congested area like Burrabazar. It
    shows that all the work of construction including the covered staircases
    together with the open staircase, including the four storeyed 'service             >

    block' is complete. The photograph depicts the state of affairs as tot.he
    shape, size and dimensions of these structures and gives an overall
c view of the proposed park atop the underground air-conditioned
    market at Satyanarayan Park. The learned Single Judge accordingly
    records a finding that by the raising of these constructions, question of
    committing any contempt of his judgment does not and cannot arise.
    We find no justification to come to any different conclusion.
D
          At the hearing Shri Shanti Bhushan, learned counsel appearing
                                                                                   I
    for the applicants was gracious enough to accept that the re-location of
    the park at a height of 8 feet above the road level instead of 6 feet is
    not a matter of moment because a few inches more or less here or
    there is hardly of any significance. He however confined his submis-
E sions to two aspects, namely (i) the raising of the lofty structures over
    the staircase leading to the underground airconditioned market consti-
    tutes a breach of the conditions laid down, and (ii) the construction of
    a four storeyed building covering an area of the park is a flagrant
    violation of the Court's order. We are afraid, the contention cannot be
    accepted. The so-called lofty structures-which we may call bunkers-
F are nothing but the covered space over the staircases from three direc-
    tions leading to the underground market. The learned counsel perhaps
    is not right in assuming that the staircases go upwards. Actually, the
    staircases provide an approach to the public to the undergroud
    airconditioned market and they go downwards. The staircases would
  _ not possibly be kept open and exposed to the sky having regard to the
G fact that the underground market is centrally airconditioned. We can
    take judicial notice of the fact that the central air-conditioning plant
    would not be functional unless there were these bunkers constructed
    over the staircases. That is how the staircases are covered at the Palika
    Bazar in New Delhi. Furthermore, the bunkers have been constructed          "'·',
    according to the architect's plan duly sanctioned by the Municipal
H CoJporation.
       CALCUTIA YOUTH FRONT v. STATE OF WEST BENGAL [SEN. J.I 1023

             Shri Somnath Chatterjee, learned counsel for respondents Nos.
                                                                                   A
       13 and 14 rightly draws our attention to the finding of the learned
       Single Judge indicating that the four storeyed building has been con-
       structed t.o locate the staff quarters. Since the underground market is
       fully air-conditioned, it is essential that the maintenance staff should
       be located in the park itself. Originally, there was a single storeyed
       building covenng an area of 150 square metres. The newly constructed        B
       four storeyed building now covers only 72 square metres i.e. practi-
       cally half the area earlier occupied. The learned Single Judge has also
       pointed out that in cl. (3) of the agreement it has been mentioned that
       the existing fittings and accessories and structures will have to be
       dismantled and the dismantled materials will be the property of the
       Municipal Corporation. Cl. (4) provides that prior to the aforesaid
       demolition of the existing staff quarters and other infra-structures like
                                                                                   c
       pump room etc. which are in use, alternative arrangement shall have
       to be made by the licensee 'for re-location of staff quarters and other
       infra-structures elsewhere which are necessary for maintaining the
       existing service during the construction period and then finally to
       rehabilitate them in the premises by the licensee'. The agreement           D
       further provides that the cost of temporary re-location and final
       rehabilitation shall be borne by the licensee. The learned coun_sel
       pointed out that Shri Justice Umesh Chandra Banerjee in his judgment has
       also made a mention of overhead water tanks. It has been recorded
       therein as follows:
                                                                                   E
                  "In any event, the scheme has been approved by the West
                  Bengal Fire Service since adequate provisions have been
                  made for supply of water in case of necessity. 55000 gallons
                  of water will be available at the park, once the scheme is
                  implemented.,Apart therefrom, a further 38000 gallons of
.,
•                 wafer will be available at the Lily Pool and 17000 gallons of
                  water at the overhead water tanks.
                                                                                   F


                        In the premises my judgment records therefore:

                       (a) that there be some structures atop the under-
                  ground market, and                                               G

                        (b) that there would also be overhead tanks with the
                  storage facility of about 17000 gallons of water. Question of
• h'              there being an overhead tank would' not arise unless there
"i -
                  are constructions atop the underground market.
•\
                                                                                   H
    1024        SUPREME COURT REPORTS              (1988] Supp. 2 S.C.R.
                                                                                -
A                    The other aspect of the matter which ought also to be
               noticed is that the licensing agreement itself provides for
               approval of the drawing and design by the licensor and in
               fact drawings and designs as appears from the records were
               approved and constructions were effected as per the plan
               sanctioned by the Calcutta Municipal Corporation in
B              accordance with the Building Rules. There is no dispute as
               to the factpm of such a construction being made in accor-
               dance with the sanctioned plan.''
         Shri Chatterjee further drew our attention to paragraph 2 of the
    judgment delivered by the Division Bench wherein it has been stated:
               "After demolishing the old structures the trust had laid a
c              public park commonly known as Satyanarayan Park having
               approximately an area of 20,000 sq. ft. The Calcutta
               Improvement Trust had made over the said park to the
               Calcutta Corporation now known as Calcutta Municipal
               Corporation (The Corporation for short) for the purpose of
D               maintenance at its own cost.··
    This fact also finds mention in the order delivered by this Court. It
    would appear that the area of the said park initially was about 28
    cottahs conesponding to 20,000 square feet. In the licence it appears
    that the area mentioned in 2500 square metres equivalent to 26,900
    square feet. As such, by no stretch of imagination can it be asserted
E   that a substantial portion of the park has been covered by encroach-
    ment and the statement that there cannot be a park or a terrace garden
    as visualised by this Coun·s order runs counter to the existing state of
    affairs.
         To sum up, the learned Single Judge very rightly and properly              (
F   addressed himself to the question whether there was a breach of the             ,;
    terms and conditions laid down in his judgment, leaving the question
    open for this Court to determine whether there was any deviation from
    the conditions set forth by the Division Bench or by this Court in
    appeal. We fully concur with the finding and reasoning of the learned
    Single Judge as also his approach.
G       There can be no doubt whatever that there is no breach either of
  the conditions laid down by this Court or the Division Bench of the
  High Court. The construction of the bunkers over the three staircases
  leading to the underground airconditioned market as well as of the           '-. 1 •
  four storeyed building were in the architect"s plan and were expressly
H permitted in the licence and formed part of the sanctioned plan. It was
  therefore present in the mind of all concerned including the Chief
CALCUTTA YOUTH FRONT.._ STATE OF WEST BENGAL [SEN, J.I             1025

Municipal Architect & Town Planner as also of the Administrator of
                                                                           A
the Municipal Corporation while planning the construction of the
underground airconditioned market that these structures would be
built up. As already stated, the construction of the bunkers over the
three staircases was a matter of absolute necessity to make the central
airconditioning plant fully functional. That is how a fully underground
airconditioned market can be conceived, as has been done in the            B
Palika Bazar in Connaught Place, New Delhi. As regards the four
storeyed structure, the construction thereof does not constitute a
breach of the conditions laid down. It has already been stated that the
four storeyed structure is built to provide residential quarters to the
staff and actually now it occupies much lesser space than before. In the
premises, the allegation made by the applicants that ·the aforesaid
structures cover a substantial portion of the surface of the park which    c
cannot now be turned into a terrace garden with a lush green lawn, is
wholly unfounded. We have already mentioned that the area of land
covered by structures acquired by the Calcutta Improvement Trust for
laying of a park in the Burrabazar area was 20,000 square feet whereas
the area of the park in question as mentioned in the licence is 26,900     D
square feet. These peripheral structures now built are therefore well
outside the area of the Satyanarayan P~rk proper.

      The applications for contempt must therefore fail and are dismis-
sed with costs. We cannot but deprecate the attempts made by the
applicants to move the High Court as well as this Court time and again E
on one pretext or another in a frantic effort to prevent the construction
of the underground airconditioned market at Satyanarayan Park which
is a part of the beautification scheme of the great Metropolitan City of
Calcutta by the State Government of West Bengal where a party in
opposition is in power, to provide civic amenities to the citizens. It is
fortunate that these attempts by the making of false and vexatious F
applications to hold up the construction of the underground airconditi- ..
oned market, the estimated cost of which is about Rs.4.50 crores, have ·
been frustrated and what was conceived of a development scheme has
come to a reality. The work of construction is nearing completion, as is
evident from the photograph annexed to the report of the learned
Single Judge, and we hope and trust that the underground airconditi- G
oned market would be commissioned in the near future, and the
terrace garden over the market will provide to the amenities to the
people living in the locality as a place for recreation besides be a
playground for the children.

H.S.K.
                                                             --
                                                   Petitions Dismissed.
                                                         .
                                                                           H