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Vir Bhan Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Original Appeal No. 13 of 1974
Judge
Reported in11(1975)DLT27
ActsContempts of Courts Act - Order 39, Rule 2(3); Code of Civil Procedure (CPC), 1908
AppellantVir Bhan
RespondentMunicipal Corporation of Delhi and ors.
Advocates: Madan Bhatia,; S.N. Marwah and; A.K. Marwaha, Advs
Cases ReferredNarain Singh v. S. Hardyal Singh
Excerpt:
(i) contempt of courts act, (1971) - section 10 -- power of high court to take action under, in respect of disobedience of order of subordinate court -- civil procedure code, order 39, rule 2.; in the instant case, the shop of the petitioner was demolished on 28th january, 1974 between 10.30 a.m. and 11 a.m. by the demolition squad of respondent no. 1 under the supervision of respondents 2 and 4 on a notice issued by respondent no. 3. this is said to be in disobedience of the order passed by district judge on 27th january restraining demolition, and accordingly petition under section 10 of the contempt of courts act was made against the respondents. an objection was, inter alia, raised on behalf of the respondents that as the allegations relate to the disobedience of the order of the.....rajinder sachar, j.(1) the shop of the petitioner was demolished on 28th january, 1974 between 10-30 a.m. and 11 a.m. by the demolition squad of respondent no. 1 under the supervision of respondents 2 and 4 on a notice issued by respondent no. 3. this is said to be in disobedience of the order passed by district judge on 27th january restraining demolition. that is this petition under section 10 of the contempts of courts act for proceeding against the respondents. respondent no. 1 is municipal corporation of delhi ; respondent no. 2 is beant singh, zonal assistant commissioner, municipal corporation of delhi. respondent no. 3 is k. n. sharma, deputy commissioner, municipal corporation of delhi ; and respondent no. 4 is 0. p. mangu, manager land and estate, municipal corporation of.....
Judgment:

Rajinder Sachar, J.

(1) The shop of the petitioner was demolished on 28th January, 1974 between 10-30 A.M. and 11 A.M. by the demolition squad of respondent No. 1 under the supervision of respondents 2 and 4 on a notice issued by respondent No. 3. This is said to be in disobedience of the order passed by District Judge on 27th January restraining demolition. That is this petition under Section 10 of the Contempts of Courts Act for proceeding against the respondents.

respondent No. 1 is Municipal Corporation of Delhi ; Respondent No. 2 is Beant Singh, Zonal Assistant Commissioner, Municipal Corporation of Delhi. Respondent No. 3 is K. N. Sharma, Deputy Commissioner, Municipal Corporation of Delhi ; and Respondent No. 4 is 0. P. Mangu, Manager Land and Estate, Municipal Corporation of Delhi.

But before we go and examine this aspect a resume of few essential facts will be helpful in understanding the various aspects of the matter.

(2) The dispute having risen between the petitioner and respondent No. I about the shop premises known as 8-A Mall Road, Kingsway Camp, Delhi-9, the petitioner filed a suit for injunction against the Corporation and obtained a temporary injunction. After the temporary injunction was vacated by the trial court the petitioner filed an appeal before the Senior Sub-Judge. It appears that the petitioner and two others had made some constructions on Mall Road, near Kingsway Camp, to which objection was raised by the Corporation. This led the petitioner to file a suit. After he had been refused a temporary injunction by the trial court he filed an appeal before the Senior Sub-Judge. During the pendency of appeal respondent No. 4 wrote to the petitioner on 30th July, 1973, informing him that he had been directed by the Deputy Commissioner, Housing, that he had decided to allot a shop to the petitioner near the shop in dispute. One of the condition of allotment was that the petitioner would withdraw his case filed against the Corporation. The petitioner conveyed his acceptance by his letter dated 6th October, 1973 to respondent No. 4. On that respondent No. 4 informed the petitioner by his letter dated 8th October, 1973 that the Deputy Commissioner has accorded sanction to the standard plan of the shop at the place which had been allotted to him in place of the present shop and that he should carry out the construction of the shop. The vacant possession of the alternative site was given to the petitioner. He alleges that he constructed the site in question in accordance with the sanctioned plan though this is disputed by the respondents. We are not concerned in the present case with that aspect and it is thereforee not necessary to pursue this aspect.

(3) On 21st January, 1974, in the afternoon the petitioner received a notice from respondent No. 3 alleging that whereas he has been granted license to use the land at Kingsway Camp on certain terms and conditions and that whereas he has made deviation from the terms and conditions on which the license was granted to him and calling upon him to show cause within 48 hours of the receipt of this notice as to why the said license should not be revoked and also informing that in case no satisfactory reply to that notice was received the license would be deemed to have been revoked after the expiry of the said period and possession resumed without any further information. Notice expired on 27th evening, 26th and 27th were holidays being Republic Day and Sunday respectively. This naturally put the petitioner in a panic. The petitioner alleges that he got the reply to show cause prepared by Mr. S. R. Khandelwal, Advocate, and went along with counsel on 26th January to the residence of respondent No. 3 to deliver to him personally the reply but he avoided taking the delivery of the same and directed the petitioner to deliver it in his office on 28th January. 1974. The petitioner's consel there upon sent a telegram on 26th January, 1974 to respondent No. 3 protesting that the show cause notice of 25th January was illegal and mala fide depriving the reasonable opportunity and that construction had been made according to the sanctioned plan. The telegram also mentioned that 'You refused reply delivered today, Grant personal hearing. On 27th January, 1974 the petitioner sent by registered post A. D. reply to the show cause. However, feeling that this may not be sufficient the petitioner on the same day filed a suit and presented the plaint at the residence of the District Judge, who at 8 P.M. passed the following order :-

'PRESENTEDtoday at my residence by the counsel for the plaintiff. The learned counsel for the plaintiff submits that the premises in question would be demolished tomorrow morning, although the same had been constructed after getting the plan sanctioned. The defendants arc restrained from demolishing the constructions in dispute till 28th January, 1974. The suit is sent to the S. S. J, Delhi for assigning to a Subordinate Judge. Plaintiff to appear before the S. S. J. tomorrow.'

(4) On the same night that is 27th January, 1974 a telegram was sent by Mr. Khandelwal to respondent No. 2 marked as Exhibit AW1/B which was to the effect :

Takenotice That The Court Of Shri Fauja Singh Gill District Judge Delhi Has Granted Stay Today Till 28-74 Against The Operation Of Your Show Cause Notice Dated 25-1-74 In Respect Of Shop At Old T. T, Post Mall Road Kingsway Camp Delhi In Possession Of Shri VIRBHAN. Please Inform Your Subordinates ACCORDINGLY.

Copies of the said telegram were also sent to respondents 1, 2 and 4. It is further alleged that on the morning of 28th January at about 9-30 A. M. maternal uncle of the petitioner Dewa Ram went to the office of respondent No. 2 at Rajpur Road where both respondents 2 and 4 were present. Dewa Ram is said to have handed over the letter of Mr. Khandelwal confirming the grant, of the stay having been given by District Judge and copy of the telegram sent by Mr. Khandelwal about the said order but the said two respondents returned the telegrams, asking him to deliver it to the Town Hall. Dewa Ram thereupon is said to have come back to the premises in dispute and handed over the said letters and telegrams to the petitioner and then left for Tis Hazari Courts where the suit of the petitioner came up before B. N. Chaturvedi, sub-Judge who passed an order restraining the defendants from demolishing the shop till 29th January. Acopy of this order was taken by Deva Ram who reached the premises by about 11-00 A. M. but by that time the premises had been demolished, and respondents had left. However earlier, according to the petition, when at 10-30 A.M., respondents 2 and 4Along with Squad came to the premises in dispute, the petitioner showed, the letter written by Mr. Khandelwal as well as the copy of the telegram- and told that stay had been granted by District Judge but they in utter, disregard of the order of injunction issued by the District Judge on 27th January, 1974 ordered the demolition squad to pull down the structure. That in brief is the story from which it is claimed that contempt has been committed of the court of District Judge when his stay order was not' obeyed.

(5) Affidavits in reply have been filed by respondents 2,3 and 4. Respondent No. 3 has denied that the petitioner or his counsel came to see him on 26th January, 1974 or that he received telegram informing him about the stay granted by-the District Judge on 27th January, 1974. Respondents 2 and 4 have denied that Deva Rame came to see them at the office of respondent No. 2 on 28th January (Morning). They also deny having received the telegram before they left for the 'promises on 28th morning. They state that the telegram was received by them after they had come back from the premises in dispute when they, reached their office. Respondent No. 2 and 4 admit that the petitioner met them. at the spot but maintain that this was after the demolition of the petitioner's shop had taken place. They categorically deny that petitioner met them before the demolition of his shop or that he showed them the letter of Mr. Khandelwal or telegram about the stay given by District Judge. They also deny that the petitioner told them orally about the stay order by District Judge. It is thus mentioned by respondents 2 to 4 that as they had no knowledge about the stay order given by District Judge prior to demolition of the shop, no contempt has been committed by any of them. Admittedly respondent No. 3 was not prevent at the spot when demolition took place on 28th January under the supervision of respondents 2 and 4. I think it will be better if I first take up the case against respondent No. 3 separately from that against respondents 2 and 4.

(6) Re : Respondent No. 3. The first link in the chain about attributing the knowledge of the stay order given by District Judge starts with the alleged writ by the petitioner accompanied by his advocate the residence of respondent No. 3 on 26th January to give him reply to the show cause which the later is said to have refused to receive. Mr. Khandelwal Advocate was examined as witness and has supported this version. Respondent No. 3, however, has categorically denied in his affidavit in reply that Mr. Khandelwal or the petitioner came to his residence on 26th January or sought to deliver any reply to the show cause. Mr. Marwah had referred me to the evidence of Mr. Khandelwal and sought to point out the discrepancies to show that he could not have visited the residence of respondent No. 3 on 20th January 1974. It was pointed out that the address of respondent No. 3 was not known to Mr. Khandelwal. Further story that one Mr. K. K Sharma Advocate was called to prepare reply to the show cause was also not believable as Mr. Sharma was then residing at Mukherjee Road which was at a distance of about 10 miles from the residence of Mr. Khandelwal. Stress was also laid that according to the evidence of Mr. Khandelwal reply to the show cause was drafted within 20/25 minutes and the same was typed within half an hour and it was contended that the reply running to four and five pages could not have been prepared in such a short time and thereforee, Mr. Khandelwal's story that he had gone to the residence of respondent No. 3 is not believable. Mr. Bhatia on the other hand referred to the fact that admittedly a telegram marked as Ex. Awl/A, was sent by Mr. Khandelwal to respondent No. 3, between the night of 26th and 27th in which it was stated that he had refused to accept the reply to show cause. Sending of telegram is established by the evidence of Kartar Singh AW2, Town Inspector, Telegraphs. Respondent No. 3 however has denied having received this telegram. Ex. AW1/A was sent at 00.50 a.m. which means that it was sent between the night of 26th and 27th January, 1974. This telegram had night delivery insructions. Unfortunately the delivery slip with regard to the telegram Ex. AWI/A is not available on record and could not be produced by that witness. This witness however stated that a local telegram booked at night will be delivered in the morning and after 6 a.m. unless the instructions are to deliver it at night. Normally thereforee the telegram Ex. Aw 1/A should be expected to have been delivered to respondent No. 3 some time on 27th morning. Unfortunately there is no conclusive proof of its receipt by respondent No. 3. Of course even if this telegram was received this information about the stay was not being given because stay had yet to be obtained. Receipt of this telegram would not by itself impute any knowledge of stay by respondent No. 3. That knowledge however is said to be attributed by the petitioner by sending on 27th telegram Ex. Aw 1/C to respondents I to 4 informing them of the stay order given by the District Judge on 27th night. Copy of a telegram addressed to respondent No. 2 was received in his office at about 1.50 p.m., and then put up to respondent No. 2 at about 2 p.m. on 28th January. Similarly, a copy of telegram sent to respondent No. 4 also reached Town Hall at 11.30 a.m. on 28th January 1974. In both these cases, the telegram could not have been seen by respondents Nos. 2 and 4 prior to the demolition. Again surprisingly delivery slip with regard to a copy of this telegram sent to respondent No. 3 is not traceable. By this telegram information about the stay of demolition having been granted by District Judge was given. If this telegram had been received by respondent No. 3, there is no manner of doubt that the action of respondent No. 3 in nevertheless permitting the demolition of petitioner's shop to take place would amount to contempt of court Unfortunately the delivery slip of this telegram is not available. Respondent No. 3 denies having received the telegram. Ordinarily one may assume that in the usual course of events this telegram should have been delivered to respondent No. 3 i. e. addressee. But there is a remote possibility that it may not have been received, and as the charge of contempt has to be proved beyond reasonable doubt, benefit of this doubt has to be given to respondent No. 3 Mr. Bhatia had urged that the denial by respondent No. 3 about the receipt of telegram should not be believed because he was telling the untruth when he stated that Mr. Khandelwal did not meet him on 26th January 1974, at his residence to give him the reply to the show cause. Mr. Bhatia, of course, did not suggest that respondent No. 3 could be held to be guilty of contempt if this denial of the visit by the petitioner's counsel on 26th January is disbelieved. Bat he did urge that if respondent No. 3 is disbelieved on this aspect his denial of receipt of telegram informing aboutstay order should be straight away rejected. Now Mr. Khandelwal has clearly deposed that he had gone to the residence of respondent No. 3 There is a mention of this visit in the telegram sent on the night between 26th and 27th January. Prime facie there may be strong probability that Mr. Khandelwal and the petitioner did go to the house of respondent No, 3 to deliver him the reply to the show cause notice yet that by itself will not impute knowledge of the stay order which was given by the District Judge on 27th January. That fact could only be proved by showing that the telegram sent on 27th night had been received by respondent No. 3. in the face of the denial byrespondent No. 3 and there being no other proof of the receipt of this telegram by him it seems to me thatl it may be a little hazardous to hold conclusively that beyond doubt the telegram was received by respondent No. 3. Of course it is rather unnatural and curious that while the telegram addressed to other respondents should have reached the addressee, both the telegrams seat to respondent No. 3 should be claimed not to have been received. It may look a little too much of a coincidence. May be official machinery has moved in a rather unusual manner in this aspect. Though thereforee I have a very strong suspicion that the telegrams sent to respondent No. 3 must have been received by him. yet however strong a suspicion it can not be a substitute for conclusive proof which is a condition precedent for holding aperson guilty of contempt of court. I am, thereforee, constrained to give the benefit of doubt to the respondent No. 3 and to hold that the charge of contempt ofcourt is not proved against him. Though the impression left on my mind about this is not ahappy one, but that is a different matter.

(7) Re : Respondents 2 and 4. That brings me to the case of respondents Nos. 2 and No. 4. It will thus be apparent that the contempt is alleged to have been committed by these respondents 2 and 4 because they are said to have acted in defiance of the order of the District Judge passed on 27th January 1974, which had restrained demolition. The question that arises for consideration is whether the order of the District Judge was made known to the respondent 2 and 4 and further whether in spite of the knowledge of the stay order-they had the shop demolished. The telegrams about the stay order having been given by the District Judge were received in the offices of respondents 2 and 4 only after 11.30 a.m. on 28th January and were not seen by them earlier to demolition. Thus no knowledge of stay o^der can be attributed to respondents 2 and 4 on the basis of these telegrams.

(8) Then there is the affidavit of Deva Ram, maternal uncle of the petitioner, who states having gone to the office of respondent No. 4 at 9.30 a.m. on 27th where he found both respondents 2 and 4 and alleges to have shown a copy of the telegram and the letter of Mr. Khandelwal about the stay having been obtained from the District Judge. This visit of Dewa Ram has been denied in the reply-affidavits of respondents 2 and 4. It may be noted that the office of respondent No.4 is at Town Mall while that of respondent No. 2 at Rajpura Road. Respondent No. 4 had stated that he. was in office at Town Hall and he and respondent No.2 reachd the spot by about 10.00 a.m. along with the demolition squad. Respondent No. 2 also denied that he was in his office at 9.30 a.m. or that Deva Ram came to his office. There is also affidavit of Rakesh Kumar orderly-of respondent No. 4 who has stated that on 28th of January respondent No.2 came to his office at 10.00 a.M. He has denied that Dewa Ram gave him any papers at 9.30 a.m. to show the same to respondents 2 and 4. He has categorically denied that any body came to the office of respondent No.2 at 9.30a.m. Similarly Ishwar Chand Sharma, has stated in his affidavit that respondent No. 2 came to his office at 10.00 a.m. on 28th January; The version of Deva Ram that he showed the letter of Mr. Khandelwal confirm ing the grant of stay by the District Judge and the copy of the telegram to respondents 2 and 4 at 9-30 a.m. on .28th January is denied by the said two respondents. In these circumstances, it appears to me difficult to come. to a conclusive finding- that the said two documents about the stay order by District judge, were shown to respondents 2 and 4 on 23th at 9.30 a.m. and I cannot on this court hold that respondents 2 and 4 had knowledge of the stay order given by the District Judge on 27th January, 1974.

(9) That brings me to the crucial day of 28th .January (morning). when respondents 2 and 4, went.to the spot to demolish the shop. Now most of what happened on the morning of 28th January 1974 at the spot is common between the parties' Respondents Nos.2 and 4 admittedly. went the premises in dispute on 28th January 1974 with the demolition squad to demolish the petitioner's shop. They reached there at about 10.30 a.m. The shop of the petitioner was demolished uader the supervision of respondents 2 and 4. The demolition squad including respondents 2 and 4 came back from the spot by about 11 a.m., after carrying out demolition. It is also common case that the petitioner did meet respondents' and 4 and showed them some papers at the spot before the respondents 2 and 4 came back from the premises in dispute. The fact of the petitioner talking to respondents 2 and 4 and this being photographed on the spot is also admitted. The agreement ends here and disputed versions are put forward as to what transpired between petitioner and respondents 2 and 4 when he met and talked to them at the spot on 28th morning. According to the petitioner he was at the spot when respondents 2 and 4 came with the demolition squad and he showed to these respondents the letter of Mr. Kandelwal confirming the grant of stay and copy of the telegram bearing the signatures of Mr. Kandelwal which was sent on 27th January to the various officers. He further says that inspire of these documents having been shown to respondents 2 and 4 the demolition was done in disregard of the order of the District Judge. Respondents' case on the other hand is that up to the demolition of the shop in question the petitioner was not there. They admit having met the petitioner at the spot but say that the petitioner came to the spot after the demolition had taken place. Though respondent No. 4 says that no documents were shown to him by the petitioner, respondent No. 2 admits that some documents were shown and says that as far as he remembers it was an unauthentic copy of the reply to the show cause. The photograph at the spot shows the petitioner showing some documents to respondents 2 and 4. It is admitted that photographs were taken at the spot.

(10) It will thus be seen that the question boils down to the narrow controversy of determining the point of time at which the petitioner met respondents 2 and i. e. whether he met them before the demolition had started or he met them immediately after the demolition, and further that when he met them did he tell them of the stay given by the District Judge. In support of the petitioner's case he filed apart from his own affidavit, affidavits of Mokham Singh, Constable, Lahori Gate, who was at .the re levant time posted as constable at the Kingsway Camp and who has deposed that he was amongst the members of the party of the police which went from the Police Station Kingsway Camp to the spot on a request having been made by the officials of the Corporation who wanted police help. He has sworn that the petitioner was present when he reached the spot and showed the stay order of the court and also was telling the respondents that he had a copy of the telegram. According to him the respondents having seen the telegram refused to. accept the same and told the petitioner that they had order of demolition from the higher authorities and thereafter inspire of the petitioner's request they ordered the labourers to demolish the shop. Another witness produced is Satish Kumar who has also deposed that the petitioner was present at the spot and showed the papers to the respondents and it is thereafter that the demolition took place. That the petitioner was present before demolition and showed the documents to the officials is also supported by the affidavits of Sham Dass and Inder Narain Kohli, the photographer who has also stated that picture of petitioner's talking to respondents 2 and 4 was taken before demolition took place. Respondents have also filed additional affidavits in support of their version. One of the affidavits filed is of Sub-Inspector Bhim Singh who was posted at Kingsway Camp and who led the party along with one Head Constable including Mokham Singh Constable. He has stated that the party left the Kingsway Camp at 10.40 a.m. and when they reached the spot the shop had already been demolished. He has also deposed that the photographer accompanied by the petitioner reached the spot a few minutes after their arrival and. at the time when his shop had already been demolished. Rajinder Nath, the duty officer has proved the daily diary entry which showed that the police force headed by the S.I. consisting of Mokham Singh left the police station at about 10.40 a.m. Ram Saran is the Zonal Superintendent and he has denied that the petitioner or any other deponents whose affidavits have been filed by the petitioner were present when the demolition took place, 0m Parkash is the person who went to obtain the police help from Kingsway Police Station has stated that when he accompanied by the police party reached the spot, the demolition had already taken place. He slated that the petitioner was not present at the spot and he came after the demolition. Joginder. Lal's affidavit has been filed to counter the affidavit filed by Satish Kumar. He has staled that when the shop of the petitioner was demolished, petitioner was not present, nor was the photographer present at that lime. Mr. Marwah had sought to point out minor discrepancies in the affidavits filed by Mokham Singh and other persons to show that whereas some persons have stated that the stay order was shown to the respondents this is not even the case of the petitioner, and that Mokham Singh had not mentioned the showing of Khandelwal's letter, to the respondents. He also referred me to the affidavit of Satish Kumar where there is no mention about Khandelwal's letter. Mr. Marwah also sought to place great relevance on the suit filed by Gobind Ram and Gian Chand (their shops were also demolished on the same day as the petitioner) and made pointed reference to para 23 of the plaint wherein it had been stated :

THATin the Morning of 28th January 1974 the plaintiff opened his shop No. 8-C and requested his maternal uncle to sit at the shop and himself came at about 9.45 a.m. to the office of his counsel Shri S. R. Khandelwal, Advocate, for signing the plaintiff and application for obtaining temporary injuction. The counsel of the plaintiff was busy in the case of Shri Vir Bhan V/s M. C. D. and when the counsel for the plaintiff returned from the court of Shri B. N. Chaturvedi, Sub-Judge 1st Class Delhi he informed the plaintiff that the said court has granted stay to Shri Vir Bhan.

(11) Mr. Marwah contends that according to averment in this para Vir Bhan was the person who had gone to Tis Hazari court and had obtained the slay order and thereforee the assertion made by the petitioner now that he was present at the spot before the demolition squad is false, I-cannot agree. The first objection to placing any reliance on this para is that averment being What Mr. Khandelwal had told Gian Chand and Gobind Ram being. hearsay is no evidence. Moreover it is no where alleged that the petitioner was seen in court by Gian Chand. Mr. Khandelwal who was exaimed in court has specifically stated that the petitioner was not present in court and that it was Deva Ram who had come on 28th January 1974 and he was the one who took the stay order from the court. He has also stated that it was only 11 a.m. that Vir Bhan had come to him and asked him to accompany him to the spot and had told him that though he had shown the copy of the letter written by Mr. Khandelwal to the officials of the Corporation they had demolished the shop. He thereforee accompanied the petitioner to the spot and at that time the shop had been demolished and the officials had gone away. He was cross-examined and when para 23 of the plaintiff filed by Gian Chand and Gobind Ram was put to him he stated this para was drafted by him under the instructions of the plaintiff of that case. No effort was made to challenge Mr. Khandelwal's evidence that it was Deva Ram who had come to the spot and the petitioner was not present in the courts. Thus there is direct evidence of Mr. Khandelwal that Vir Bhan petitioner never came to the court premises on 28th January when stay order was obtained from the court of Mr. Chaturvedi. It is true that the number of deponents deposing that the petitioner was preseat at the spot and talked to respondents 2 and 4 before demolition is evenly matched by the affidavits filed on behalf of the respondents deposing that though the petitioner came to the spot it was immediately after the demolition had taken place. But the present is a case where it is unncessary to worry much about the affidavits filed by respective parties. This is because the present is a case to which the maxim rest (ipsa) Loquitor (thing speaks for itself) applies fully. Respondents 2 and 4 along with demolition squad had reached the spot at 10.30 a.m. and after demolition hid come back by 11 a.m. Petitioner had undoubtedly met and talked to them in between this period and shown them some-documents as is clear from the photograph. Is it natural that the petitioner should have been absent at the most crucial point before demolition and reappear after the demolition had been carried out? Can there be any intelligible Explanationn for such a conduct which the respondents are attributing for the petitioner This version of the respondents would have us believe that the petitioner had left his shop totally unattended even though he knew for certain that the demolition squad was to come for demolition. It is not as if the petitioner wanted to be away from the shop for some supposed undisclosed reasons because if that was so, it is not explained why the petitioner would appear immediately after demolition. The petitioner's conduct shows a feverish effort at obtaining stay of demolition before 28th January. The petitioners livelihood depended on the shop. He had. immediately on receipt of notice of 25th January sent atelegram protesting against the short notice, 26th January was holiday and 27th January was Sunday. The petitioner knew about the serious consequences flowinig from notice. He had the reply to the show cause prepared by counsel on 26th January and even if the story of his having gone to the residence of respondent No. 3 is ignored, there is no doubt that he sent the reply by registered A. D. Post on 27th January. He also sent telegrams of protest at respondent No. 3 having refused to receive reply to the show cause. He did not rest there He was vigilant enough to obtain .the stay order from the court of Shri Fauja Singh Gill, District Judge, at 8-0 p.m. on 27th January. He followed it up by sending immediatly telegram to the various respondents informing them that a stay order had been obtained. Having thus made his position secure is it conceivable that the petitioner would absent himself from the spot at the crucial time. He takes a photographer to the spot, but after the demolition-according to the respondents. One seeks invain for an answer to such an unnatural conduct and when one does not get an answer the only conclusion is that the respondents version goes against the very behavior of a normal human being more especially of the petitioner who has shown such activity in obtaining a stay order. The story that the petitioner himself would have gone to the court also cannot be believed because it is the case of the respondents that when the petitioner met them he did not mention about the stay order given by the Sub Judge, which he certainly would have had he gone to the courts on 28th. Moreover it is not to be expected that the petitioner would leave the shop unattended. He would either be himself present or someone on his behalf because having got a stay from District Judge he had no reason to be absent. I can understand that if the petitioner had not obtained stay from District Judge, he might absent himself hoping (though without basis) that the respondents may not carry out demolition in his absence. But with stay having been obtained he would see to it that he is present at the spot so as to prevent demolition, armed as he was with the mandate of the court. I have thereforee no hesitation in believing the version of the petitioner that he was at the spot on 28th January and met respondents 2 and 4 before the demolition had started. The version of respondents 2 and 4 that the petitioner met them after the demolition being unnatural does not appeal to me and must be rejected. Once it is held as I do, that the petitioner met respondents 2 and 4 before demolition it is inevitable that he would tell them that he had obtained a stay from the District Judge. If makes no sense that the petitioner should not tell about stay by District Judge but show a reply to the show cause as is suggested by the respondents. Such a conduct attributes to petitioner deliberate desire to share and accelerate his own ruination and can not be countenanced. I have thereforee no manner of doubt that the petitioner did inform respondents 2 and 4 that he had obtained the stay order from the District Judge and that in spite of their knowledge about the stay order, they went ahead with the demolition and actually demolished the shop of the petitioner, in clear definace of the order of District Judge Such conduct cannot but amount to contempt of court, and I so hold. No dobut no certified copy of the order of the District Judge is alleged to have been shown or served officially on any of the respondents. Respondents 2 and 4 also seemed to have hinted in their affidavit at his line of defense when respondent No. 2 stated that no such order of the District Judge was served on him officially or through any process server nor any official order bearing the seal of the court was ever brought to his notice nor by any one including the petitioner before the demolition of the shop in question Similarly respondent No. 4 in his affidavit in reply also stated that none of the respondents was served at any time prior to the demolition of the shop with any injunction order under the scal of the court. He also stated that as the petitioner .failed to bring to the notice of the respondents any order under the seal of the court by the District Judge addressed to any of the respondents restraining them from demolishing the shop no contempt has been committed by any of the respondent. Though this line of defense was indicated it was not seriously urged and for a very good reason because it is not in law necessary that before a person could be found guilty of contempt notice ofstay must necessarily be served officially on him. It is well settled that in case of contempt by disobedience of prohibitive order of Court in order to justify commital it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that her had notice of the order aliunde, as by telegram, or newspaper report, or otherwise and knew that it was intended to be enforced vide Bunna Prasad and others v. The State of U.P. In 43 C. J. S. Article 261 page 1009, it is stated 'where, however, a party has actual notice of an injunction, clearly informing him from what he must abstain, he is bound by the injunction, from that time, and will be punished for a violation thereof, even through it may not have been served, or may have been served on him defectively.'

'IT is altogether immaterial how defendant acquires information of the existence of the injunction; when once he has been apprised of the fact he is legally bound to desist from what he is restrained and inhibited from doing.'

It is true that punishment under the law of contempt for disobeying the order of the Courts is called for when the lapse, is deliberate and in defiance of the authority of the Court, vide Nand Kishore Chela Mal v. Commissioner of the Municipal Corporation of Delhi* There cannot be a stronger case than the present because no Explanationn for the action of respondents 2 and 4 in ordering the demolition of the shop Ob 28th January 1974 in definance of the order of the District Judge who had restrained the respondents from demolishing the construction in dispute. It is unfortunate that the public officials should consider with indifference orders issued by the Courts. Rule of law is the very foundation of a democratic structure of our society. One of the cardinal principles on which rule of law is based is the unquestioning obedience of the order of court by high and low, including all the hierarchy of the executive. The very fabric of the democratic society would be in a serious jeopardy if the public officials are permitted to disobey the law- full orders issued by the court on their private whims and fancies. It would be dangerous to society if orders issued by Courts of law can be permitted to be treated with disrespect or their prompt obedience not enforced. See The First National Bank Ltd. V. Dr. Kali Charan. It may be that respondents 2 and 4 genuinely felt that the petitioner had made construction in violation of the sanctioned plan. If so, they may take any action as is permitted under law. But what they must not and cannot do is to try to over reach the court and ignore and act in defiance of the order of the court It may be that executive may sometimes feel that the order of the court is standing in the way of action of the executive which is in the interest of and for public good If so, the executive is riot without remedy, for it may obtain from the court suitable modification of its injunction order. No doubt sometimes the process may take sometime.But in a choice between arbitrariness of the executive and the prevalence of rule of law as embodied in the obedience to the. order of the court, the choice must be of the later it the society wishes. to maintain the chershed objective of justice and equality embodied in our Constitution. The obedience to an order of the court cannot be dependent on the affected party liking the order. Courts writ must run independent of such volition and because of its own strength and vitua

'VIOLATIONof the order of injunction, cannot' be excused on the ground, that though the court acted within its jurisdiction, but the order that it passed, was erroneous. The order granting injunction. might have been erroneous, or granted improvidently, or obtained irregularly, that will not excuse the person violating it..........Further inquiry as to its advisability or legality is not called for. The court, in contempt proceedings, will not inquire into the merits of the case in which injunction was issued.' vide Narain Singh v. S. Hardyal Singh

Thus the action of the respondents 2 and 4 cannot be excused and I am compelled to hold that they have committed the contempt of the court of the District Judge. As the action of respondents 2 and 4 might have been motivated by wrong sense of enthusiasm to take action against alleged unauthorised construction I would not like to sentence them to imprisonment. I would however sentence both respondents 2 and 4 to pay a fine of Rs. 1,000'- each for the offence of contempt of court commit- ted by them. In case of default of payment of fine, they will undergo simple imprisonment for a period of one month. The fine will be paid within 6 weeks from today. Rule against respondents No. 3 however will be discharged. The petitioner will also be entitled to the costs which I assess at Rs. 500.00 . Though I have discharged the rule against respondent No. 3, yet the overall impression about his part has left an unsavoury air. As it was his notice which has led to the present proceedings, he must pay part of the costs which , fix at Rs, 300.00 ; the balance of Rs. 200.00 to be paid by the respondents 2 and 4. Before I part with the matter I must notice objection raised by Mr. Marwah that as the allegation relates the disobedience of the order of the Subordinate Court, I should not exercise my powers under the Contempt of Courts Act and leave the petitioner to take steps under Order 39 Rule 2(3) of the Civil Procedure Code and he referred me to A. Ramalingam V. Mahalinga Nadar. In that case it was obsered that if a detailed enquiry was necessary, it must be left to the court which has passed the order and which is fully more acquainted with the facts of the injunction granted by it. It was nevertheless observed that it would be alright to commence the proceedings if facts on record ex facie justify such a proceeding, it was however emphasised that even so everything will obviously depend upon the particulars set of facts in the case that is before the court. Moreover it must be emphasised that this is a matter of discretion and not jurisdiction. In the present case not only was the petition admitted but permision was given to file additional affidavits and counter-affidavits, and even oral evidence was taken before a learned Judge of this court. After all the time taken and leading evidence it seems to me in appropriate to refuse at this stage to entertain this petition and drive the parties to another round of tortuous litigation involving considerable expense and time. Moreover this court has the solemn duty and obligation cast on it to safeguard and preserve the administration of justice and any action which has the result of polluting or weekening th3 fibre of the independence and the strength of the judiciary cannot be permitted to go unnoticed, more especially when the interference and disobedience comes from a quarter like the public officials who are expected to know that the upholding of rule of law requires their respectful and instinctive obedience to the orders of the courts, Such is the scheme of the Constitution which the people of India have given to themselves. This court can not and will not shirk or abdicate the trust reposed in it. The objection of Mr. Marwah must, thereforee, be repelled. The petition is thus disposed of as above.


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