Mohd. Danish vs Col. Raju George and Others

Prafulla C. Pant, J.—This contempt petition is moved u/s 12 read with Section 10 of the Contempt of Courts Act, 1971.

Brief facts of the case are that the Plaintiff-Applicant filed a Civil Suit No. 31 of 2004 before the learned Civil Judge (Junior Division), Almora against the Union of India, one Major Nautiyal and Colonel Sidhu, for injunction restraining them from repairing his house in suit or from demolishing said house. The said suit appears to have been decreed ex-parte on 23-09-2004 in respect of the house in suit situated in survey No. 7/74 within-the limits of Cantonment Board, Almora. In the contempt petition, it is alleged that the Respondents have violated the said decree and committed disobedience of the Court''s order.

Respondent Nos. 1 and 3 have filed their counter affidavit. In the counter affidavit of Respondent No. 1, it has been stated that the contempt petition has been moved by alleging wrong facts. It is stated in the counter affidavit, that in the month of September 2004 when the disobedience is alleged to have been committed, Respondent No. 1 was posted in Jammu and Kashmir. It is further stated in the counter affidavit that the Plaintiff-Applicant wants to make construction in violation of provisions of Section 179 and 180 of the Cantonment Act, 1924 and in the garb of injunction he has moved this petition to prevent the Cantonment Board from proceeding according to law. As far as the barrier on the main road is concerned, the answering Respondent has stated that it is meant for checking the unauthorized vehicles from proceeding in the Army area. Alleging the contempt petition to be malafide, it has further been stated by Respondent No. 1 that answering Respondent was not even a party in the suit and as such, no contempt proceeding is maintainable as against him.

Respondent No. 3, has also filed his counter affidavit stating that the Plaintiff-Applicant has concealed the material facts from the Court. This Respondent has also stated that the motive of the Plaintiff-Applicant is to raise construction in violation of the provisions of Sections 179 and 180 of the Cantonment Act, 1924. This Respondent has also stated that he has not committed any contempt of the Court and barrier in the main road has been placed by the military administration and not by the Cantonment Board. It is also stated in the counter affidavit of Respondent No. 3 that notices u/s 185 of the Cantonment Act, 1924 were issued in November 2004 by this answering Respondent to stop the illegal work proceeded by the Plaintiff-Applicant. It has further been stated that the act on the part of the answering Respondent is bonafide and according to law and not in violation of the decree passed by the court.

I heard learned Counsel for the parties and perused the record.

Copy of the letter dated 02-11-2004, filed as Annexure C.A.-9 to the counter affidavit of Respondent No. 3, clearly shows that notice u/s 184 of the Cantonment Act, 1924, has been issued by the Executive Officer of the Cantonment Board. The ex-parte decree passed by the trial court nowhere says that the Plaintiff is allowed to raise the illegal constructions. No Court can pass a decree to permit a Plaintiff to do an act, which is against the law. And if any Court passes such decree, which is in violation of law, such decree is nullity and the Defendants cannot be said to be bound by'' such decree. What the Respondents have done in the present case, is this, that they have proceeded under the Cantonment Act, 1924 against the construction being raised in violation of law. This fact is further proved by the document filed by the Plaintiff-Applicant himself, which is copy of notice under Sub-section (2) to Section 185 of the Cantonment Act, 1924, issued on 08-11-2004 by the Cantonment Executive Officer.

In the aforesaid circumstances, it cannot be said if there is any willful disobedience on the part of the Respondents, of the decree in question, as the act on the part of the Respondent is in pursuance of the Cantonment Act, 1924 and not against the law.

Accordingly, the contempt petition is liable to be dismissed and the same is hereby dismissed. The notices issued to the Respondents shall stand discharged.