IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CONTEMPT OF COURT Contempt case No. 293/2003 (With CM No. 12091/2006) Reserved on : October 13, 2006 Pronounced On : November 13, 2006 DARYA GANJ J.M.T.C.H.B.S. LTD.... Petitioner Through Mr. Jaspreet S. Rai, Mr. Rohit Nagpal, Advocates versus RAKESH MEHTA & ORS.... Respondents Through Ms. Shaista Siddiqui, Advocate for Ms. Mini Pushkarna, Advocate for the MCD. Mr. K.C. Mittal, Advocate for some contesting private respondents. Mr.Justice S.Ravindra Bhat 1. The Petitioners here complain of violation of Court's order in CWP No.4662/2001. That writ petition was filed by the relator, i.e. a Co-operative House Building Society for declaration that the Municipal authorities acted in breach of their statutory duties, in failing to remove illegal constructions and un-authorised encroachments upon public land and green belt adjoining the land of the society. After considering pleadings this Court disposed off the writ petition on 20.08.2002. The said order in so far as it is relevant for the present purposes is reproduced below: It is directed that the respondent corporation shall proceed it accordance with law and take necessary action within a period of two months from today. In so far as the construction of the boundary wall is concerned, I am of the considered view that it is necessary that the adequate police protection be provided for the construction of boundary wall of the petitioner society. Respondent No.1 is thus directed to provide adequate police protection on the petitioner society intimating respondent No.1 about the same by giving an advance notice of two weeks. The writ petition stands disposed of in the aforesaid terms. CM No.8038/2001 No further orders are called for in this application in view of the disposal of the writ petition.
CM No.8827/2002 In view of the fact that the writ petition itself stand disposed of with a direction to ensure protection of the boundaries of the petitioner society by construction of a boundary wall and for respondent corporation to take action in accordance with law, no orders are necessary on this application. The application stands disposed off. Dast." 2. This Contempt petition was preferred on 13.05.2003, alleging non compliance, and violation of, directions in the Court's order. The relator also placed on record subsequent orders of this Court, after 20.08.2002. The circumstances which they were issued are discussed below. 3. Another Cooperative Group Housing Society, through its Resident Association namely Sudhar Sabha West Guru Angad Nagar, claiming aggrieved by the judgment dated 20.8.2002 filed a Letters Patent Appeal, being LPA No.703, along with application for leave to file appeal. That appeal was disposed of by the order of the Division Bench in the following terms. ORDER 04.10.2005 This case was wrongly posted for 9th October,2002 though the date fixed was 4th October, 2002 and hence taken up today. The date of 9th October, 2002 is cancelled. Mr. Sethi, learned senior counsel says that he has not been able to lay hand on any notification issued by the MCD declaring the road in question to be a public road. Mr. Sethi further says that he had moved an application under Order 1 Rule 10 CPC for being impleaded as party in the writ petition and though the fact of the application were taken note of by the learned Single Judge in his order, but has not recorded any finding thereon. Moreover, the appellant is not un-authroised colony. It was regularized in 1996 and the passage has been indicated to be the passage for both the colonies. This aspect has not been looked into by the learned single judge for which counsel for the appellant wants to file an application before the learned Single Judge. Request allowed. Let that application be filed within a week. Till then status quo. Dasti. With this observation, the appeal is dismissed withdrawn. Dasti by Court Master. Usha Mehra, J R.C. Jain, J " 4. In view of the above order, the Sudhar Sabha of West Guru Angat Nagar, approached the Court by filing application, CM No. 11284/2004, for modification and
recall of order dated 20.08.2002. The application was heard and disposed off, by a detailed speaking order, on 29.10.2002. This Court noted the contentions on behalf of the applicant that a suit was filed by residents of the locality i.e. West Guru Angad Nagar seeking restraint upon the construction of a boundary wall. The Court also noted the contentions about the locus standi of the Society to represent individual residents of the Colony. It held that the proceeding were initiated by members of the West Guru Angad Nagar to some how obstruct the order dated 20.08.2002. After adverting to a letter dated 29.07.1988 issued by the DDA, clarifying the right of the Darya Ganj Jama Masjid Teachers Cooperative Housing Society to construct the boundary was as it was within the land alloted to it and further letter dated 24.08.2000, this Court held, inter alia, in the said order dated 29.10.2002 upon the application by the Sudhar Sabha West Guru Angatt Nagar as follows : "CM NO. 11284/2002 The aforesaid facts make it clear that the members and the residents of the applicant society are seeking passage on the land of the petitioner society since they have unauthorisedly constructed their houses in a manner not leaving enough space. The mere subsequent regularisation of the unauthorised colony will not give any special rights including easementary rights to the applicatns on the land of the petitioner society. The members of the applicant society cannot claim to have a right of passage through the land of the petitioner society when they have themselves constructed their property in such a manner as to create a problem where by now they are alleging that they will not have sufficient path for ingress and egress. The photographs filed by the applicants earlier would show that there is a path which will still remain even after the wall is constructed but it is not a wide path way. The applicant society was an unauthorised colony which is stated to have been subsequently regularised. In such a situation the applicant cannot claim rights over the land of the petitioner society. In view of the aforesaid facts and circumstances, I find no merit in the application. Dismissed. Interim orders dated 11.10.2002 stand vacated. C.M. NO. 11432/2002 Dismissed. Dasti to learned counsel for the parties." 5. After the considering the stand of the respondent, the Municipal Corporation of Delhi (MCD) this Court had in these contempt proceedings directed an action taken report be furnished. This Court was informed during the course of proceeding on 20.1.2005 that a number of residents West Guru Angad Nagar had broken the wall, constructed by the relator pursuant to the order of the Court dated 26.02.2002. The Court by its also order dated 20.1.2005 also permitted the reconstruction of the wall.
Pursuant to the order dated 20.1.2005 the newly added respondents, residents of the West Guru Angad Nagar, furnished undertakings that they would not obstruct the construction of the wall which would be done as per the orders of the Court. 6. In the above background, in these proceedings the following order was issued on 24.02.2005 : "Cont Cas.(C) 293/2003 Undertakings on behalf of the private respondents have been placed on record. It is stated therein that the deponents have not participated in the demolition of the wall and did not impeded, obstructed or caused any hindrance in the construction of the boundary wall of the petitioner society. In this view of the matter, it is directed that this petitioner society shall construct a boundary wall as per the scheme/based on the plan given to it_by the Delhi Development Authority. Keeping in view the rival contentions, it is deem proper to appoint Ms. Avnish Ahlawat, Senior Advocate of this court as a Local Commissioner to verify the location of the boundary wall and to monitor its construction based on the plan of the society. Ms. Ahlawat will be paid a fees of Rs.25,000/- which shall be shared in three equal shares by the petitioner and respondents Nos. 1 and 2 to 21. The learned Local Commissioner shall be at liberty to take the assistance of any draftsman and photographer at the cost of these parties who shall bear the cost of the proceedings in the same shares. The fees shall be paid to the learned Local Commissioner within a period of one week from today. In the meantime, the respondent No.1 shall continue with the action already directed and shall place the status report in this behalf on record. The respondents shall abide by the undertakings given in court today by them. Gita Mittal, J The Court appointed a Local Commissioner who, by her report dated 31.3.2005 noted agreement to the construction of the wall as per the DDA Scheme. 7. In the above back ground by order dated 1.9.2006, this Court recorded that the petitioner was free to construct boundary wall and that in the event of a written request, the Station House Officer, Shakarpur would make the necessary arrangements to ensure that the boundary wall is constructed by the petitioner and maintain without any hindrance, at its own cost. 8. After issuance of the order, the application, CM 12091/2006 was filed for suspension/ stay of this operation, by certain members of the West Guru Angad Nagar. Learned counsel for the applicant Shri K.C. Mittal urged that there was no occasion for issuance of such direction as petitioners' occasion approached this Court with allegations of violations of the Court's order dated 20.08.2002. He relied upon the order in LPA No. 851/2002, (quoted supra) to contended that the Division Bench had recognized
easementary rights set up by the residents of West Guru Angad Nagar to oppose construction of the boundary wall, as it involved investigation of the disputed questions of fact. He contended, therefore, that Court ought to desist from issuing any direction in that respect. He also submitted that any direction would prejudice the merits of the dispute pending adjudication before the Civil Court in the suit for injunction preferred by some of the residents West Guru Angant Nagar. 9. Reliance was placed upon the order of the Civil Judge in Suit No. 936/2002 dated 3.6.2003 and the order of the Addl. District Judge in an appeal, preferred against the said order. The Additional District Judge had disposed of the appeal by order dated 9.9.32003. 10. The above factual matrix would show that this Court had, by order dated 20-8- 2002, directed construction of a boundary wall to secure the relator society. The representative association of residents of the West Guru Angad Nagar, feeling aggrieved, filed appeals. The Division Bench, which no doubt indicated that easementary rights would involve investigation into disputed questions of fact, nevertheless upheld the order of Court. It granted liberty to the West Guru Angad Nagar Residents Association to approach the Single Judge; the application filed by them, was considered but rejected by a detailed reasoned order, on 29-10-2002. Consequently the issue as to the permissibility and need to build boundary wall stood settled. In the course of these contempt proceedings, when the court was told about obstruction by such residents, the individuals were impleaded; they filed undertakings that the wall would be constructed as per Court's order. 11. In the above circumstances, the question as to what was the grievance projected in the contempt proceeding, when initiated by the relator, would strictly speaking, not be relevant. There is a radical difference between civil proceedings, and contempt proceedings; in the former, the parties are at lis on the issues raised. However, in the latter proceeding, the lis having been settled by orders/ decrees of court, the public interest in seeing that such directions are fully complied with, in order to ensure that the rule of law is upheld, is paramount. The proceeding, in that sense, ceases to be an adversary one. The Court is concerned that its directions are complied with. Keeping these considerations in perspective, it has to be held that the submissions of learned counsel for some applicants, residents of the West Guru Angad Nagar, are not tenable. 12. In view of the above conclusions, the directions issued on 1-9-2006 are hereby reiterated. The MCD and police authorities, including the SHO for the concerned area, shall ensure that no obstruction is made for construction of the wall, directed as per orders of the court, and ensure that protection is granted to the petitioner-relator, in that regard. 13. The contempt petition is disposed off in the above terms. The MCD shall file a compliance affidavit indicating that these directions have been carried out, within ten weeks.
S. RAVINDRA BHAT, J