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Nand Kishore Chela Mal Vs. Commissioner of the Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtDelhi High Court
Decided On
Case NumberCriminal Original No. 44 of 1968
Judge
Reported inAIR1969Delhi137; 1969CriLJ599
ActsDelhi Municipal Corporation Act, 1957 - Sections 348, 348(1) and 349; Contempt of Courts Act, 1952 - Sections 1 and 3; Constitution of India - Articles 226 and 227
AppellantNand Kishore Chela Mal
RespondentCommissioner of the Municipal Corporation of Delhi and ors.
Appellant Advocate B.N. Kirpal, Adv
Respondent Advocate S.N. Chopra, Adv.
Excerpt:
.....case, the order of the court directed municipality to demolish particular premises and partial demolition was carried out - the contempt proceedings were initiated against the municipality so that it would demolish the whole structure which would help in the eviction of the tenants of the complainant - the court held that such a tendency was nto to be encouraged - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother..........had been carried out in october-november, 1966 in conformity with the provisions of section 348, delhi municipal corporation act. after the decision by the letters patent bench, however, shri r. n. tikku, advocate, who appeared for the municipal corporation both in the writ petition and the letters patent appeal, advised filing an appeal to the supreme court. but this part of the affidavit is of little consequence in view of the assertion that the order of the letters patent bench was carried out on 8-9-1968.2. according to the affidavit of respondent no. 2, shri s.n. singh, shri r. n. tikku had on 13-8-1968 advised that an appeal should be filed to the supreme court against the order of the letters patent bench and a certified copy of the impugned order was applied for on 31-8-1968......
Judgment:

1. Nand Kishore has presented an application under Section 3 of the Contempt of Courts Act against all or any of the respondents for having committed gross contempt of this Court. The four respondents to this application are:

(1) Commissioner of the Municipal Corporation of Delhi;

(2) Shri J.N. Singh, Deputy Commissioner, Municipal Corporation of Delhi;

(3) Shri S.C. Talwar, Zonal Engineer (Dangerous Buildings), Municipal Corporation of Delhi, and

(4) Shri S.C. Vaish, Senior Overseer, Municipal Corporation of Delhi. The short ground on which gross contempt of this Court is stated to have been committed is that in L. P. A. 106 of 1967, a Division Bench of this Court on 9-8-1968, reversed the order of a learned Single Judge, dismissing the applicant's writ petition, and, allowing the writ petition, directed the Municipal Corporation to carry out the demolition of the remaining portion of the house in question as required by Section 348(1) of the Municipal Corporation Act, within a reasonable time. The present application came up for preliminary hearing on 4-9-1968 when I directed notice to go for 6-9-1968. On that date of hearing, Shri R.N. Tikku appeared on behalf of the respondents and asked for time, with the result that we adjourned the case to 9-9-1968, on which date Shri Bishamber Dayal appeared for the respondents and stated at the bar that the order of this Court had actually been complied with. The case was, however, adjourned to the following day. On 10-9-1968, Shri Bishamber Dayal stated at the bar that the remaining portion of the house in question had been demolished as directed by this Court, whereas Shri B.N. Kirpal asserted to the contrary.

According to Shri Kirpal, only the roof of the rooms had been demolished but the walls stood intact. There were also some karries on the walls supporting some corrugated sheets. The respondents were, in view of this disagreement, directed to file detailed affidavits by 16-9-1968 and in the meantime we appointed Shri Yogeshwar Dayal, an Advocate of this Court, as a Commissioner to go and inspect the site and report whether or nto demolition, as ordered by this Court, had been effected. On 16-9-1968, Shri S.N. Chopra appeared for the respondents and produced four affidavits In reply sworn by the four respondents. According to the affidavit of respondent No. 1, it was on 7-9-1968 that he was for the first time informed about the order of this Court dated 9-8-1968 and the building in question was demolished on 8-9-1968. The demolition of the one-sixth portion was carried out in the same way as demolition of the five-sixths portion had been carried out in October-November, 1966 in conformity with the provisions of Section 348, Delhi Municipal Corporation Act. After the decision by the Letters Patent Bench, however, Shri R. N. Tikku, Advocate, who appeared for the Municipal Corporation both in the writ petition and the Letters Patent Appeal, advised filing an appeal to the Supreme Court. But this part of the affidavit is of little consequence in view of the assertion that the order of the Letters Patent Bench was carried out on 8-9-1968.

2. According to the affidavit of respondent No. 2, Shri S.N. Singh, Shri R. N. Tikku had on 13-8-1968 advised that an appeal should be filed to the Supreme Court against the order of the Letters Patent Bench and a certified copy of the impugned order was applied for on 31-8-1968. The suggestion to file an appeal to the Supreme Court was approved by the law Officer of the Corporation on 4-9-1968, but before the matter could be proceeded further, notice of the present application was received in the Law Department of the Corporation on 5-9-1963. The notice sent by Shrf B.N. Kirpal dated 15-8-1968 was received in the Central Office of the Municipal Corporation of Delhi on 20-8-1968, from where it was sent to the Municipal Engineer on 22-8-1968 where it remained till 11-9-1968 when it was personally collected from there by Shri S.C. Vaish, respondent No. 4. Respondent No. 1 according to this affidavit, also saw the file for the first time on 7-9-1968 and approved the engagement of Shri Bishamber Dayal and on that very day, the Legal Adviser of the Delhi Municipal Corporation advised that one-sixth portion of the building in dispute should be demolished as directed by the Letters Patent Bench. On 8-9-1968, the demolition was carried out in accordance with this Court's order.

3. In so far as the first two respondents (the Commissioner of the Municipal Corporation and Shri J.N. Singh, Deputy Commissioner, Municipal Corporation) are concerned, the petitioner has very frankly conceded that they cannto be held guilty of contempt of this Court. We accordingly discharge the rule against them and direct that the petitioner should pay costs for both these respondents which we assess at Rs. 250/- for both. The learned counsel for the petitioner has, however, urged that the order of this Court has nto been fully complied with and that for this non-compliance, respondents Nos. 3 and 4 are responsible. According to him, merely removing the roof of the two rooms is nto enough and that all the four walls should have been demolished. Shri Kirpal has drawn our attention to some portions of the affidavits filed by respondents Nos. 3 and 4 in answer to this application for the purpose of showing the inconsistent positions taken by them. Shri S.C. Talwar, Zonal Engineer (Buildings) has stated in his affidavit as follows:

'3. That the roofs including Katies were totally demolished on 9-8-1968 as aforesaid, but, the karies and tin sheets have been apparently put up subsequently by the tenant of the demolished portion after the demolition action was over. The back and the side walls of the premises in dispute are walls common also to properties belonging to others. If these walls had been demolished, the other properties were bound to be affected. It may also be mentioned here that the side walls and the front walls of the 5/6th portion of the premises demolished in 1966 as aforesaid are still intact.

4. That the deponent removed the danger by demolishing the dangerous portion of the premises and he has done his duty in compliance of the orders of this Hon'ble High Court and in conformity with Section 348 of the Municipal Corporation of Delhi Act.' In paragraph 2, Shri Talwar has stated that one-sixth remaining portion of the premises was demolished on 9-8-1968 in the same manner in which five-sixths of the portion had been demolished earlier hi October-November, 1966.

4. Shri S.C. Vaish, Section Officer has deposed in the following terms:

'3. That I have fully complied with the directions of the Hon'ble Court as contained in its judgment dated 9-8-1968.

4. I carried out the demolition action complying with the directions of this Hon'ble Court in conformity with the provisions of Section 348 of the Delhi Municipal Corporation Act, 1957. The demolition of the l/6th portion of the premises was carried out exactly as the demolition of the 5/6th portion of the premises in 1866, I did nto take action with regard to the back and side walls of the premises as they are common walls of the other houses and if the demolition action had been taken against those walls also, the other premises might have been affected. Nor was the demolition of the said walls necessary within the meaning of this Hon'ble Court's directions. I removed the karies of the rooms and verandah comprised in 1/6th portion of the premises except two karies which were wholly inside the common walls.

5. That I may also humbly submit that in the 5/6th portion of the premises the partition walls were left out and in the demolition of 8-9-1968, the partition walls were also left intact in the same way as they were left in the 5/6th portion of the premises. They are still intact there at the site in the 5/6th portion of the premises.

*****

7. That I again inspected the spto on 10-9-1968 when I found that the malba had been cleared and the karies replaced and covered with tin sheets.' Our attention has also been drawn to the report submitted to this Court by Shri Yogeshwar Dayal who was appointed a Commissioner by this Court for the purpose of inspecting the building in question. Inter alia, he has reported that on inspection he found the roof of the room and the verandah in dispute to have been demolished, but the roof of the room was found covered with corrugated sheets resting on 8 wooden karries. Two side karries were old ones fixed in the walls, whereas the rest of the six karries were loose and appeared to be lying in old places. These six karries were nto fitted with mortar, cement or stone. The front wall of the room with its door was intact. So were the back and the side two walls. The roof of the verandah which had been demolished was also lying covered with wooden karries resting on the front wall of the room and three puce arches in front of the verandah which were also intact.

5. We consider it appropriate at this stage to turn to the circumstances in which this Court made its order dated 9-8-1968. In 1967, Nand Kishore, claiming to be the owner of the building bearing Municipal No. 6022, Gali Arya Samaj Mandir, Naya Bans, Ward Vii, Delhi, presented to this Court an application under Articles 226/227 of the Constitution impleading the Municipal Corporation of Delhi, Shri N. N. Tandon and Shri Ram Kishan Dass as respondents. -It was averred that on 20-8-1966, a notice was found pasted on house No. 6022 purporting to be made under S. 349, Delhi Municipal Corporation Act, declaring the said building to be dangerous and fit to be demolished. Previously, a notice had been issued for demolition of this building, in which only some portions of the building were stated to be dangerous.

A civil suit was thereupon filed by the petitioner, but when the notice dated 20-8-1966 was issued, it was considered futile to pursue it. The suit was accordingly nto pursued and the same was dismissed on 21-9-1966. After notice, no action was taken by the Municipal Corporation to demolish the building, but on some people living in the vicinity having approached respondent No. 1, the demolition work was started by stages. The entire first floor and part of the ground floor, except certain portion, was demolished. The undernolished portion was in the occupation of Shri Ram Kishan Dass, respondent No. 3 in the writ proceedings, who was a tenant under the petitioner. The allegation in the writ petition was that this portion was nto demolished because of some collateral influence exercised by some influential persons in the interest of respondent No. 3 whose occupation of this portion was sought to be safeguarded. The prayer in the writ petition was for a writ of mandamus to respondent No. 1 to carry out its duty to demolish the undemolished structure.

6. A learned Single Judge of this Court dismissed the writ petition.

7. On appeal, a Letters Patent Bench of this Court reversed the order of the learned Single Judge and directed respondent No. 1 to carry out the demolition of the remaining portion of the house bearing Municipal No, 6022, Gali Arya Samaj, Ward No. Vii, Naya Bans, Delhi as required by Section 348(1) of the Delhi Municipal Corporation Act, 1957 within a reasonable time.

8. The direction, it may be pointed out, was given to respondent No. 1, the Municipal Corporation of Delhi. It is unfortunate that the present Commissioner of the Municipal Corporation should' nto have been intimated of the pendency of the Letters Patent Appeal to which the Municipal Corporation of Delhi was a party through the Commissioner of the Corporation. This appeal was presented in this Court in October, 1967 and was admitted in the same month with a direction that it be heard at a very early date. In any event, as soon as the order was made by the Letters Patent Bench on 9-8-1968, one would have expected the counsel for the Municipal Corporation and the officers concerned of that body to have brought to the notice of the Commissioner the contents of the order made by this Court. This was unfortunately nto done as is obvious from the affidavit of respondent No, 1. That, however, does nto affect our decision in discharging the rule against respondents Nos. 1 and 2 on the concession rightly made by the learned counsel for the petitioner dropping this charge against them. In order to sustain the charge of contempt of Court for disobeying the Court's order, knowledge of such order has to be proved beyond all reasonable doubt and in case of doubt, benefit ought to be given to the person charged,

8A. Now, in so far as respondents Nos. 3 and 4 are concerned they have taken the plea of compliance with the order, the only controversy raised at the bar being whether or nto the order has been fully complied with. In our view, it is nto necessary in the present proceedings to decide as to whether the extent of demolition admittedly carried out amounts to a complete demolition of the structure. The petitioner, it may be pointed out, had been trying to get the premises now in controversy vacated by the tenant and the tenant on his part had been trying his best to counteract the steps taken by the landlord for his eviction. Five-sixths portion of the building in question was demolished under Section 348 of the Delhi Municipal Corporation Act, 1957, and, according to respondents Nos. 3 and 4, the remaining one-sixth portion has also been demolished in the same way.

Indisputably, the roofs of the rooms have actually been demolished and, according to the report of Shri Yogeshwar Dayal also, some of the karries appear to have been recently fixed. On the material on the record, thereforee, we are unable to hold that respondents Nos. 3 and 4 have deliberately disobeyed the orders of this Court so as to render them liable to be punished for contempt of Court. It has always to be borne in mind that the Court, while considering and dealing with the offence of contempt of Court, acts both as an accuser and a Judge and the procedure adopted is also somewhat summary. It is, thereforee, highly necessary that the Court should proceed with caution and deliberation and should take action only when it is called for in the interests of the administration of justice. The Court must make all allowances for errors of judgment and difficulties arising from the attending circumstances in a given case. Punishment under the law of contempt for disobeying the orders of the Courts is called for when the lapse is deliberate and in defiance of the authority of the Court. It is only when a clear case of contumacious conduct nto explainable otherwise arises that the contemner should be punished. The casual manner in which some of the departments to local self-government are known to function, unsatisfactory and open to serious criticism as it is, has to be taken into account when determining the question of the offence of contempt in the sense of the lapse being conscious and deliberate.

In our opinion, the fact that the order of this Court was nto brought to the notice of the learned Commissioner with the expected promptitude, and the further fact that the notice sent by Shri B.N. Kirpal remained with the Municipal Engineer from 22-8-1968 to 11-9-1968, merely disclose a lamentable slovenly method of discharging their official duties on the part of the various officers of the Corporation. We are unable to compliment them either for their efficiency or for their sense of responsibility. But however, inexcusable their lapse departmentally, we are nto convinced that this is evidence of contumacious conduct on their part or of any desire to disobey or flout the orders of this Court. The remedy for the laxity shown by the officers of the Corporation in dealing with this matter lies in reform and suitable punishment of those officers depart-mentally and nto in punishment under the law of contempt.

9. In the affidavits produced by the respondents, a suggestion has been thrown as if the question of filing an appeal to the Supreme Court against the order of the Letters Patent Bench was being considered. Now, though this ground was nto in the forefront of the arguments in defense of failure to carry out the order of this Court, an oblique indication was thrust in the persuasive address of the respondent's learned counsel Shri Chopra that an appeal to the Supreme Court was contemplated, and for this purpose, a certified copy of the order was applied for on 31-8-1968. It is, however, noteworthy that on 6-9-1968, Shri Tikku, who appeared for the respondents, did nto state that the respondents were nto submitting to the order of the Letters Patent Bench because they were contemplating an appeal to the Supreme Court. Even Shri Bishamber Dayal on 9-9-1968 did nto take up this position and he merely stated that the order had been complied with. The sole defense up to that stage was that the order had been complied with. But this apart, we are of the opinion that if the respondents were desirous of filing an appeal, then in view of the nature of the order and the circumstances of the case, steps to that effect should have been taken with reasonable diligence and this Court should have been approached without unreasonable delay with a prayer for the requisite interim relief.

To treat the matter with indifference has nto created a happy impression in this Court. It is certainly nto worthy of the august body like the Corporation of the capital of our Republic. The Municipal Corporation of Delhi and its officials are expected by the people to be an ideal Corporation from the point of view of efficiency, sense of duty, integrity, due compliance with lawful orders and desire to deal fairly and judiciously with the citizens. Lapses in this respect only serve to promote in the minds of the citizens feelings of scepticism towards our democratic system of local self-government, which may, in due course, develop into feelings of frustration.

10. There is also another aspect to which we would like to advert. The petitioner has very zealously pursued this application and has tried to persuade us to punish respondents Nos. 3 and 4 for contempt of Court. In our opinion, the petitioner had performed his duty when he brought to our notice the facts contained in the application. Thereafter, it was a matter between this Court and the alleged contemners and the petitioner had no personal right which he could have safeguarded by getting the respondents punished for' contempt of Court. The petitioner's desire to have one-sixth portion of the building completely razed to the ground so that he may get rid of the tenant -- and this strike us as his main dominant purpose for moving us--is nto at all persuasive enough for the purpose of considering, whether or nto to punish these two respondents for contempt of Court: Resort to such proceedings for the purpose of securing execution of the Court's orders for the benefit of a private litigant is not, generally speaking, to be too readily encouraged. As to what further steps, the petitioner would be entitled to take for the purpose of razing the demolished building to the ground, is a matter with which this Court is nto concerned, in these proceedings, and certainly this Court is disinclined to allow contempt proceedings to be used as an instrument for clearing the debries or the demolished building from the site in question. Judicious restraint and evenly-balanced judgment, in cases like the present, serve to preserve the serene and magnanimous dignity and majesty of the Court better than punishing the alleged contemners.

11. On a consideration of all the circumstances of the case, as observed earlier, we do nto think respondents Nos. 3 and 4 are guilty of any punishable contempt with the result that we are constrained to discharge the rule against them as well. They are, however, directed to bear their own costs of these proceedings.

12. Rule discharged.


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