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Judgment
G.S. Sistani, J.—Petitioner alleges wilful disobedience of the orders dated 13.07.2004 and 08.05.2006 passed in the Writ Petition No. 3554/2003. The said writ Petition No. 3554/2003 was filed by the petitioner which is the welfare Association of Boulevard Road, MCD Flats owners. In the writ petition it was prayed that a writ of Mandamus be issued to the respondent to complete the boundary wall of the residential complex of the petitioner association. A direction was also sought to DDA to provide security arrangement for the residential complex. The main grievance of the petitioner in the said writ petition was that a jhuggi jhopri cluster has been allowed to come up on government land abutting to the colony of the petitioner association and the jhuggi dwellers have breached the boundary wall of the colony to enable them to trespass into the colony leading to thefts and compromising to the security of the residents of the complex.
During the pendency of the matter, the petitioner association proposed to construct the boundary wall at their own expenses and sought a direction to the SHO of the local police to provide adequate protection to the labours engaged by the petitioner association for the purposes of repair/ reconstruction of the boundary wall. The said writ petition was disposed of with a direction inter alia that the petitioner would be entitled to repair / reconstruct the boundary wall and closing the colony known as MCD Flats, Boulevard Road, and the SHO of the local Police Station shall provide adequate police protection to the labour engaged by the petitioner association for the purposes of repair / reconstruction of the boundary wall. Aggrieved by the aforesaid order, CM. No. 1609/2005 was filed by the slum dwellers in the aforesaid writ petition, which was disposed of on 08.05.2006. The said order was also challenged by preferring an LPA No. 1105/2007 filed by the slum dweller, which was also dismissed on 30.07.2007. A review application No. 323/2007 was also filed in the said LPA, which was also dismissed on 05.09.2007. A SLP No. 17080/2007 filed by the slum dwellers also met with the same fate. Since the Police was not rendering necessary assistance as directed vide order dated 13.07.2004 the petitioner was forced to file Cont. Cas (C) No. 287/2007, in which notice was issued and the petition was finally withdrawn on 29.01.2009, wherein the following order was passed:
CM. 1281/2009 in Cont. Cas (C) No. 287/2007
After some arguments, learned Counsel for petitioner wishes to withdraw the present application with liberty to file appropriate proceedings in accordance with law.
Accordingly, present application is dismissed as withdrawn with the aforesaid liberty.
Cont. Cas (C) No. 287/2007
After some arguments, leaned Counsel for petitioner wishes to withdraw the present petition as having become infructuous against the present contemnors.
Consequently, the present petition is dismissed as withdrawn.
Counsel for the petitioner submits that initially the petitioner association had repaired some portion of the wall, but on account of financial constraints all the breaches could not be repaired by them. Counsel for petitioner further submits that even otherwise the repairing of the boundary wall is a continuous cause of action and this has led to the filing of the present contempt petition.
Counsel appearing for the respondent submits that the present contempt petition is not maintainable, as the petitioner had not reserved its right to file a subsequent contempt petition on the ground that the association did not have enough funds to carry out repairs of the entire boundary wall, which arguments have been raised during the course of the present contempt petition.
Counsel for the respondent further submits that initial contempt petition pertained only to one breach, which is evident from the pleadings. Counsel for the respondent has placed reliance on the copy of the daily diary filed along with counter affidavit which reads as under:
DD NO. 21A Dated 10.09.07 P.S. Civil Lines, Delhi.
Insp. Omprakash
SHO/CL
Arrival & reported
Time 9.30 PM, I alongwith the staff vide DD No. 33B of today after performing the arrangement duty at MCD flats Boulward Road, Civil Lines, Delhi in compliance to the order of Hon''ble Delhi High Court. Today, the program of completion of the order of the Hon''ble Delhi High Court was fixed in connection with CWP. No. 3554/03 was fixed. As per order necessary Police protection was provided to the petitioner to re-erect, re-construct the boundary wall as per order. The petitioner have completed the work as per order and given as under taking in writing about Completion of work peacefully. During the operation no untoward incident happened and everything was finished smoothly. The out force & local Police was relieved from the spot at 7:30 PM (PCR Calls received in the P.S. Are checked & found that DD No. 13B was filed as no action was required DD No. 57B is filed as no complainant was present. DD No. 58D is filed on Compromised, no other PCR Call is received.
Relying on the daily diary, counsel for the respondents submits that it had been noted that the work has been completed peacefully and the petitioner had given an undertaking in writing about the completion of the work. Counsel further contends that even at that stage the petitioners did not reserve their rights, neither brought to the notice of the police that there were other breaches as well. Counsel next submits that the area has completely changed from the year 2005, when the aforesaid order was passed as the photographs placed by the petitioner on record shows that some shops have been constructed and the shutters appear to be opening on the slum side where some transporters are occupying the area. Counsel for respondent also submits that in case police protection is granted to comply with the orders dated 13.07.2004 and 08.05.2006, it may lead to multiplicity of proceedings, in view of change of circumstances. Counsel further submits that obviously rights would have been created in the aforesaid shops and structures. She further submits that in case police protection is granted and the petitioner is permitted to carry out repairs of breaches, it may even lead to law and order problem.
Counsel for the petitioner relies on Annexure P-3 (at page 26) filed with the Cont. Cas. No. 287/2007 in support of her submission that in the representation made to the DCP, North it was pointed out that the association is not in a position to carry on entire repair work in one stretch due to paucity of fund and other resources thus reserved their right to carry on remaining repair work at later stage, in compliance of the orders of the court.
Present contempt petition is opposed by counsel for the respondents on the ground that orders dated 13.07.2004 and 08.05.2006 passed by this court have been complied with and thus the present petition is not maintainable. Mr. Sindhwani, counsel for respondent submits that the petitioner had filed Contempt Petition No. 287/2007 seeking compliance of the orders dated 08.05.2003 and 14.07.2004. Reply to the contempt petition was filed. Police protection was granted to the petitioners and they were permitted to complete the reconstruction of the boundary wall. Since the order was complied with, the contempt petition was withdrawn on 29.01.2009.
Counsel for the respondent further contends that the petitioner is now setting up a new case of having constructed only a portion of the boundary wall, which is contrary to the record, as the earlier contempt petition was withdrawn, as having become infructuous. Moreover, the withdrawal of the contempt petition was unconditional. Counsel has also drawn attention of the court to DD No. 21-A dated 10.09.2007, Police Station Civil Lines, Delhi, wherein it had been recorded by the officer of the respondent that the construction work stands completed. It is submitted that the present request of the petitioner cannot be acceded to, in view of material change in circumstances, as the photographs filed by the petitioner itself would show that a two storey building has come up having shops on the ground floor and residence on the first floor. It is submitted that under the garb of the orders passed as far back as in the year 2003 and 2004 the petitioner cannot be allowed to take law into their own hands under the protection of Police, as the same is likely to cause multiple of proceedings.
I have heard counsel for the parties and find force in the submission made by counsel for the respondent. File of the earlier Cont. Cas (C) No. 287/2007, was also called and perused by this court.
It is noticed that the order was passed, as far back as on 13.07.2004, and the petitioner filed the first contempt petition in the year 2007 which was dismissed as withdrawn, at that stage, it was open for the petitioner to either have reserved her right to approach the court again or should have taken leave or at least have pointed out to the court that the petitioner cannot carry out repair work in one stretch on account of paucity of funds. There is also no explanation for the delay in filing the present contempt petition in the year 2011. Counsel for the respondent points out that as per section 20 of the Contempt of Courts Act, 1971 the limitation for filing a contempt petition is one year from the date of the order. Counsel for the petitioner has relied upon Pallav Sheth Vs. Custodian and Others, , in support of her submission that the limitation would only start when a person learns about the violation of the order.
The aforesaid judgment is not applicable to the facts of this case, as the petitioner has been aware about the breaches in the boundary wall from the year 2004 onwards and thus it cannot be said that the petitioner was not aware of the same.
Counsel for the petitioner has also relied upon Shri Bihari Lal and Another Vs. Shri V.M. Bansal and Others, and more particularly paragraph 9, which reads as under:
Learned Senior Counsel for respondent no. 4 has also relied upon the judgment of the Supreme Court in Pallav Sheth Vs. Custodian and Others, , which discussed the issue of period of limitation within which an application of contempt can be filed. The expression initiation of contempt proceedings was considered in terms of Sections 17 and 20 of the Contempt of Courts Act, 1971. It is held that period of one year would commence from the date on which the commission of contempt came to the knowledge where that had been concealed by fraud or dishonest conduct of the contemner. Learned Counsel thus contends that in whatever manner the judgment is read, the petition filed by the petitioner in September, 1999 would be barred by time.
The submission made by counsel for the petitioner is that this is a continuing cause of action and is without any force, as the cause of action was available with the petitioner at the time when the writ petition was filed, and thereafter when the first Cont. Cas(C) No. 287/2007 was filed. It is not a case where during the pendency of the contempt petition or thereafter any such breaches have been made. The breaches referred to the petition have been in existence throughout and in fact the petitioner has not been careful or diligent and have allowed such a situation to arise where number of shops have been erected, no grounds made out to initiate contempt proceedings. Accordingly, the petition is dismissed. Notice of contempt is discharged.