Neeraja Mehra vs Rakesh Mehta and Another

S. Ravindra Bhat, J.—This contempt petition seeks initiation of proceedings against the respondent/accused, an official of the Municipal

Corporation of India (hereafter ""MCD"") for willful and deliberate disobedience of the order of this Court dated 1.10.2003 in WP(C) No.

5422/2003. During course of hearing, the arguments were addressed in relation to the role of respondent No. 2 (hereafter ""comtemnor/accused"")

Briefly the facts are that the petitioner, owner occupier of C-126 defense Colony, New Delhi, claimed that illegal constructions, in violation of

provisions of the Delhi Municipal Corporation Act, 1957 (hereafter called ""the Act""), Building bye-laws and other mandatory norms were carried

out in the neighbouring plot, No. C-125. It was alleged that the MCD was lax in its implementation of the norms; as a result of its inaction, the

sanctioned plan was not available at the site and the building was constructed in utter violation of building bye-laws. In her writ petition, (WP

5422/2003) filed on 25.8.2003, the owner occupier''s name was disclosed and it was also averred that the building activities were illegal.

On 27.8.2003, this Court made the following order on the writ petition:

The petitioner is aggrieved by the construction in property No. C-125, defense Colony on the ground that the same is not in accordance with the

sanction plan. A query was put to the petitioner whether the petitioner is willing to file any photographs about the status of the property. However,

petitioner states that it is for the respondent alone to take action and to perform the statutory duty. In view of the aforesaid position, the only

direction which can be passed at present is for respondent No. 2 to submit a status report after inspection of the property in question. The

property of the petitioner shall also be inspected and the status should be incorporated in the status report. The needful be done within a maximum

period of four weeks. List on 1st October, 2003.

On 27.9.2003, the contemnor accused, (Shri. M.M. Dahiya, Executive Engineer (Building) of the concerned zone of the MCD) filed an affidavit

that the building plan for property was sanctioned on 1.4.2003 and that during inspection the owner and his representative were found to have

deviated from the sanctioned plan regarding basement, ground floor, first floor and second floor and raised unauthorized construction of servant

quarter at the third floor of which the property was booked on 1.9.2003. There was deviation of the sanctioned plan through infringement of

setbacks and excess coverage at the basement, ground floor, first floor, second floor and unauthorized construction of servant quarter existed at

the third floor. It was also stated that show cause notice u/s 343/344(1) of the Delhi Municipal Corporation Act (hereafter ""the Act"") was issued

on 1.9.2003 and that the owners/occupiers failed to respond to the show cause notice. It was also averred that after following due process of law,

a demolition notice dated 8.9.2003 was issued, requiring the owners to remove unauthorized construction within a stipulated period of six days.

It was deposed that the demolition notice too was disregarded; resultantly a demolition order was issued on 17.9.2003. Apparently an attempt

to implement the demolition order was planned on 20.9.2003 but due to shortage of time it could not be followed up, since demolition action was

initiated for property bearing No. C-140, having regard to orders in another writ petition. The deponent assured the court that pursuant to the

notice, the owner/builder himself removed a ceiling in the servant''s quarter at the third floor. It was lastly stated that apart from demolition the

MCD had initiated sealing under the Act.

This Court after hearing the parties and considering the averments disposed of the writ petition on 1.10.2003 in the following terms:

The status report has been filed by respondent NO. 2 MCD in respect of property bearing No. C-125, defense Colony, New Delhi. It is stated in

the status report that plans for the said property were sanctioned on 01.04.2003, but on inspection, it has been found that there have been

deviations from the sanctioned plan at basement, ground floor, first floor and second floor and further unauthorized construction has been raised on

the third floor. It is stated that the said unauthorized construction was booked on 01.09.2003 and show-cause notice was issued on the same date

u/s 343/344(1) of the Delhi Municipal Corporation Act, 1957. No reply was filed within the time stipulated and, thus, demolition notice dated

08.09.2003 was issued and demolition orders have been passed on 17.09.2003. It is further stated that action was planned on 20.09.2003, but

due to shortage of time, the same could not be implemented inasmuch as that some action was required to be taken with respect to another

property in pursuance to certain directions of the Court. The status report states that prompt action shall be taken against the unauthorized

construction.

The status report also goes on to state that insofar as the property of the petitioner at C-126, defense Colony is concerned, the same is old and

occupied and has been constructed way back in accordance with the sanctioned plan.

In view of the aforesaid, the only direction to be passed is for the respondent Corporation to proceed in accordance with law in pursuance to the

Orders already passed and take action is a time-bound schedule. The necessary action in accordance with law shall be taken within a maximum

period of two months from today.

The writ petition stands disposed of.

Compliance report be filed by respondent MCD within two weeks of expiry of the aforesaid period with advance copy to the petitioner.

CM No. 9558/2003

No further orders are called for in this application in view of the disposal of the writ petition.

Application stands disposed of.

dusty to learned Counsel for the parties.

The petitioner moved an application being CM No. 1329/2003 alleging that token demolition had been performed by the MCD sometime in the

last week of October and that the excess coverage of basement which in addition violated several norms; besides coverage of 95% of the ground

floor area as against 20% permissible existed. The petitioner/applicant sought for impleadment of the owners and others. The application was

dismissed on 28.11.2003 itself with the observation that in case the petitioner was aggrieved by violation of any direction she had the liberty to file

appropriate proceedings.

It is contended that despite the orders of Court, the contemnor/accused, particularly Sh. Dahiya deliberately and with willful motive desisted

from taking any action with the intention of helping the occupiers of the premises, who had violated the law. Ms. Vaishali Mehra contented that the

status report and the further follow up action disclosed to this Court at the highest could be construed as half truths and in any case were of bundle

of lies, meant to conceal the truth. The covered area on each floor was in excess of 2000 sq.ft. According to the norms the covered area on the

second floor could not be more than 750 sq.ft. In the circumstances, demolition of 260 sq.ft. was hardly sufficient compliance. The action taken

was not more than lip service. It was also contended that there was excess coverage of the basement which was built up to the extent of 95% of

the ground floor area as against the 20% admissible and that the basement itself was a couple of feet higher than the stipulated 6 ft. This in turn

resulted to several other important violations which were intentionally overlooked.

It was additionally contended that besides suppressing the real truth from the Court, the respondent/accused facilitated the occupiers by ensuring

that no demolition action was taken, and they could seek regularization according to amended norms, much later. Learned Counsel also submitted

that the adoption of such stratagems to defeat the orders, and divert the attention of the Court from true facts was not just a deception but meant to

deliberately flout the directions. It was submitted that the deliberate inaction of the respondent resulted in the occupier filing a writ petition being

WP No. 2144/2004 in which the Court directed de-sealing of the premises on 23.2.2004 to enable the occupier to retrieve drawings and submit

them in consonance of an office order. This established the complicity of the respondent and the MCD generally as the occupier was successful in

filing a revised plan and later depositing the compounding fee. This resulted in the property being de-sealed and the Court permitting its use to the

extent that the occupier could take possession of the ground floor. It was submitted that all these facilitated in the further illegal use of the property

and the petitioner was compelled to file a suit for injunction which is still pending consideration.

It was also contended that had proper action been taken by way of sealing the premises and ensuring demolition of non-compoundable areas

in 2003, the occupier could not have been allowed to take possession of the premises without bringing the construction, in conformity with the law.

In these circumstances, the respondent - contemnor had to be dealt in the most severe manner for willfully disregarding orders of the Court.

Learned Counsel also relied upon the affidavit of Shri Dahiya, filed in April, 2004 in WP 2144/04 and submitted that he withheld any mention of

the directions of this Court, as regard action within two months, in respect of C-125. This showed that he was hand in glove with the occupier, and

wanted to favor him, in order to defeat the directions in WP 5422/03.

The stated position of the respondent-accused Sh. Dahiya is that there was no disobedience or intentional violation of the Court''s order.

According to him, everything possible in compliance with the orders of the Court in WP.5422/2003 was done. It was averred- and has been also

contended on his behalf -that right up to 1.10.2003, when the writ petition was disposed off, several steps were taken which included booking of

the property and issuance of show cause notice on 1.9.2003; issuance of demolition notice due to omission of owner and builder, to respond to

the show notice; and the order of demolition dated 17.9.2003; all these were brought to the notice of the Court. It could not be stated that the

respondents ever willfully much less deliberately disregarded or disobeyed the Court''s order. It was contended that the sealing order was made on

8.10.2003 and it was executed on 14.11.2003 when the premises were actually sealed.

Learned senior counsel Sh. Ashok Bhasin contended that demolition and sealing action was planned for 20.9.2003 and even police assistance

was forthcoming but due to shortage of time no action could be taken. All these were disclosed to the Court which directed the respondents to

proceed in accordance with law. It was contended that pursuant to a special programme fixed on 31.10.03, demolition action was carried out on

second floor and the servant quarters on the third floor the latter were demolished. Additionally the roofs existing in the said rear portion were also

demolished. However, action could not be completed and on 14.11.2003 the entire premises were sealed. A copy of the status report disclosing

all this had been filed in WP.5422/2003. All these facts were within the knowledge of the petitioner.

It was submitted that subsequently WP No. 2144/2004 was filed by the occupier who came forward and expressed willingness to submit fresh

plans in terms of amended bye-laws and in terms of Office order dated 3.3.2004. It was contended that he was ready to adhere to the new norms

fixed by the Malhotra Committee Report and undertook to deposit a compounding fee. Interim orders were made on 17.2.2004 to enable the

occupier to inspect the property and facilitate his filing of plans and drawings with the DDA. After these were done, the MCD filed a status report

in W.P.2144/2004 on 7.4.2004. Thereafter the writ petition was disposed of on 30.4.2004 granting the occupier one month''s time to bring the

property within permissible limits. It was contended that the present petitioner filed a civil suit seeking injunction restraining the occupier from

carrying out constructions. The injunction was declined and CM(M) No. 644/2004 was filed. Initially this Court directed a status quo order and

thereafter the matter was dismissed on 11.8.2004.

It was contended that this Court''s order was to take action in accordance with law and could not be construed as a direction to demolish the

non-compoundable portions, straightaway. Learned Counsel submitted that on 1.9.2003 itself a show cause notice and action by way of booking

was taken, thereafter a demolition order was made and eventually the entire premises were sealed on 14.11.2003. These amounted to taking

action in accordance with law. So long as the MCD and the respondents proceeded to comply with the direction of 27.8.2003 which was to file a

status report after inspecting the premises, (which was done) and thereafter proceeded to take further action, no question of any contempt arose. It

was further submitted that the order dated 1.10.2003 showed that the only direction which the Court contemplated was that the MCD should

proceed in accordance with law and take action in a time bound manner. The time period indicated was also two months. Counsel contended that

the demolition action taken on 31.10.2004 though partially and followed up with complete sealing up on 14.10.2004 displayed that the

respondents acted in bona fide exercise of powers and in furtherance of the Court''s orders.

Learned Counsel submitted that the orders of Court could not be construed as a mandate to proceed in a particular manner and demolish the

property or raze it to the ground regardless of all other considerations. Of course, the seriousness felt in the matter was expressed by indicating the

time limit. However, as the reply would show, on two occasions demolition action was planned but could not be completed due to other

commitments. Moreover sealing of premises was indicative of action in accordance with law as it is an important step, to enable the occupier to

either accept the MCD''s version, to approach it, seek time for rectifying the construction or appeal against the decision. In this case the complete

sealing of the premises took place on 14.11.2004. The occupier approached the Court for de-sealing and enabling them to rectify the building and

bring it in conformity with the bye-laws on 16.2.2004. The Court thereafter permitted that action. In these circumstances, there was no

disobedience much less willful disobedience of the Court''s order.

The above factual narrative would show that the petitioner had approached this Court claiming that the occupier of C-125, defense Colony

had violated building norms and indulged in excess construction beyond permissible limits. The Court had directed inspection of the property by

order dated 27.8.2003. Subsequently, status report was filed indicating that the property had been booked and later demolition action had been

planned. The status report also mentioned issuance of demolition notice and passing of demolition orders. On the strength of these, the Court

disposed of WP.5422/2003 on 1.10.2003 requiring the MCD to take action in accordance with law in a time bound manner i.e. two months. The

further facts which emerge are that on 8.10.2003 the sealing order was made which is said to have been executed on 14.11.2003. Some portions

of the property were apparently demolished on 3110.2003. The petitioner''s grievance is that the full facts were never brought to the notice of the

Court and somehow the respondents contrived a situation whereby the occupier was enabled to approach the Court and get an order vacating the

sealing of the premises and even permitting him to submit further plans for rectification of the buildings. All these, could not have been without the

connivance of the respondent-contemnor, which is nothing short of contumacious disregard of the directions of the Court, amounting to willful

disobedience of its directions.

In the present proceedings the records of disposed of writ petition Nos. 5422/2003, 2144/2004 & CM(M) 646/2004 as well as the disposed

of files in LPA No. 961/2004 were called for. Pleadings and documents in those cases were adverted to by both parties and their counsel.

The factual narrative would show that initially this Court had directed inspection on 27.8.2003. On the basis of that direction a status report

was filed before the Court on 27.9.2003 through an affidavit. The affidavit mentioned about booking of the property; demolition notice dated

8.9.2003, demolition orders dated 17.9.2003 and the proposed action on 20.9.2003. This Court disposed of the petition directing that action in

accordance with law should be completed, within two months. Two months period would have ended in January, 2005. In the meanwhile, the

sealing order was issued on 8.10.2003 and subsequently some demolition action took place on 31.10.2003. It is asserted that the premises were

sealed on 14.11.2003. This sealing was done pursuant to the courts direction, in WP 5422/03, within the two month period granted for taking

action. The occupier approached this Court on 16.2.2004 and filed wit petition being WP No. 2144/2004. That petition was eventually disposed

off, granting limited liberty to occupy a portion of the premises. In the meanwhile, the court permitted de-sealing of the premises, as an interim

measure.

The Municipal Corporation Act, 1957 undoubtedly enacts distinct stages where action against unauthorized construction can be taken. These

are issuance of show cause notice outlining the breaches and asking why sealing action need not be taken; depending on response issuance,

issuance of sealing orders and their execution; issuance of demolition notice detailing the portions that would have to be demolished by the

occupier, failing which the MCD would take action, issuance of orders on the basis of the response after giving hearing to the owner/occupier. The

demolition action has to necessarily follow after issuance of such order. These stages are essential and have to be followed. This Court

consciously, Therefore, did not define what action should be taken, and left it to be worked out by the respondent MCD, in accordance with law.

However, the time frame indicated was to inject a sense of urgency and ensure that admitted non-compliance portions were to be brought in line

with the mandate of law.

The record discloses that the action directed to be taken was not, even as per the stand of the MCD itself taken later on. The only action taken

appears to have been sealing order which according to it was implemented on 14.11.2003, and a part demolition action, on 31-10-2003. The

entirety of the submissions made and the averments in the replies of the contemnor/accused abound with justification as to why further action could

not be taken after February, 2004. The date 16.2.2004 is significant because the occupier Major Genl. Bakshi approached the Court, through

WP 2144/04 on that date; the initial interim order directing opening of seals was issued on 17.2.2004.

The gap in point of time between 31.10.2003 and 17.2.2004 is significant. Absolutely no Explanation is forthcoming as to why no further

action was taken and whether indeed after the sealing took place on 14.11.2004, the occupier had occasion to approach the MCD. This aspect

assumes significance because the occupier also does not state in his writ petition any specific date when he approached the MCD. The averments

in WP.2144/2004, particularly Paras 12 to 14 show that the sealing of the premises took place rather suddenly, according to the occupier.

However, there is no averment that the writ petitioner/occupier ever approached the MCD which resulted in stalling of any further action, pursuant

to directions in WP 5422/03. The occupier merely averred that an office order was issued on 3.2.2004, regarding the relaxed building bye-laws.

This aspect as stated earlier is significant because it shows that neither the respondent nor the occupier can assert that no further action could be

taken as a follow up including further demolition action, since the stated position even now is that only a part demolition took place on 31.10.2003.

The argument that serious action ensued because of sealing, which itself was sufficient to disclose compliance, has to be considered in the context.

The MCD and the contemnor have not established that no follow up action after 14-11-2003 could be taken due to consideration of any

application or request for rectification of the plans.

Another significant feature is that in answer to WP 2144/2004, the respondent-contemnor Sh. Dahiya had filed an affidavit in April, 2004. That

document is part of the record in this case being ANNEXURE R-2. In answer to the writ petition of the occupier, the contemnor/deponent merely

disclosed compliance with the interim order dated 17.2.2004 regarding de-sealing of the premises to enable retrieval of documents and submission

of the rectification plan in accordance with the office order dated 3.2.2004. He also stated than an amount of Rs. 90,426/- was payable as

compounding charges which was communicated to the occupier on 29.3.2004. Here again what is significant is not what was disclosed to the

Court, but what was not disclosed to the Court. The respondent-contemnor, Shri Dahiya, is none other than the deponent who had filed an

affidavit in WP.5422/2003 on 27.9.2003; he made no whisper about the previous proceedings or the directions of the Court dated 27.8.2003 and

1.10.2003. He also did not take any steps to tell the court that the sealing of the premises was pursuant to, and in compliance with this Court''s

directions; he withheld this material fact from the court in WP 2144/03 - the learned judge who heard that petition was different (Sen, J). On the

other hand, WP 5422/03 was heard and disposed off by Kaul, J. This non-disclosure cannot be viewed in isolation in view of the identity of the

deponent on behalf of the MCD in both the proceedings. It betrays a willful and deliberate attempt to not disclose true and complete facts. In this

context, the charge of complicity of the respondent-deponent to somehow keep the matter unresolved in an motivated manner, assumes

significance. If the intention of the contemnor respondent was in fact was to really comply with the Court''s directions dated 1.10.2003, nothing

prevented him from approaching the Court in WP.5422/2003 and seeking extension of time or even clarification, having regard to the writ petition

No. 2144/2004. Nothing prevented him also from disclosing the true facts in the affidavit filed before the Court, in WP 2144/04. These in my

considered opinion were deliberate attempts to suppress the facts, defeat the ends of justice and overreach the binding directions of court.

The mere charge of not proceeding further and taking demolition action, in isolation, by itself was insufficient to conclude any willful motive or

complicity by the respondent deponent. However, no follow up action was taken or even attempted beyond the period permitted by court.

Admittedly, part demolition and the sealing of premises took place. The further fact is that this Court was not appraised of the full facts by the

deponent in the subsequent proceedings, which led to the other consequences. I am constrained to find that his conduct amounts to suppression of

facts with a view to disregard and disobey the orders of this Court. The suppression of material facts cannot be viewed lightly, since the deponent

accused is not a junior level official, who can be forgiven of ignorance of the consequences; he is a senior officer, i.e Executive Engineer, of the

division, expected to be aware of the building bye laws, and consequences of placing or suppressing full facts before the court. His role in not

disclosing the full facts, in WP 2144/04 facilitated the removing of seals in the premises; those were directed to be placed in WP 5422/03, by

another learned judge. This suppression cannot but be regarded as willful, and deliberate, to keep the court in the dark about previous binding

directions. The deponent was duty bound to disclose to the court, as soon as he became aware of the pendency of WP 2144/04, that the sealing

was a step in the implementation of directions dated 27-8-2003 and 1-10-2003 in WP 5422/03. His failure to do so, resulted in a virtual negation

of the mandate of this Court, in the previous order, which had become final. His bona fides would have been shown had he shown at the earliest

opportunity that the sealing of the concerned premises, was under directions of the court; this would have afforded the court complete facts. The

court had no manner of verifying these facts, since the present petitioner had not been imp leaded in the later proceedings, by the occupier/ owner.

These establish that though the deponent contemnor acted seemingly within the bounds of law, yet, he intentionally delayed further action, after 14-

11-2003, though there was no impediment, and suppressed true facts from this Court, in the later proceedings - a conduct which is not only

deprecatory, but also in utter disregard of the courts previous order.

In view of the above discussion, I have no hesitation in concluding that the action and conduct of the respondent Sh. Dahiya amounts to willful

and deliberate disobedience of the Court''s order with full intention and knowledge that they would undermine the authority of the Court. I,

Therefore, hold him guilty of contempt. However, there is nothing on the record to proceed against the first respondent. He is discharged.

The Petition is accordingly allowed.

List on 28.5.2007 to hear the contemnor or his counsel, on the point of sentence.