Sanjay Narang vs Jakir Hussain

Sudhanshu Dhulia, J

This is a contempt petition filed by the petitioner alleging that the respondent has willfully and deliberately violated the order of this Court dated 10.01.2018 passed in Review Application No.941 of 2017 in Special Appeal No.645 of 2014.

This case has a chequered history. The petitioner had raised a construction in the Cantonment area, which was against the bye-laws of the Cantonment Board as well as against the Works of Defence Act, 1903.

The case of the Cantonment Board was that firstly the petitioner had raised the construction within 50 meters of a defence establishment, and hence violated the Works of Defence Act, 1903. In any case, since the construction raised by the petitioner was not authorized under the Cantonment Act, 2006, a demolition order was passed. Consequently, a writ petition being WPMS No.2609 of 2014 was filed by the petitioner before this Court which was dismissed by this Court on 27.11.2014, against which, a special appeal being SPA No.645 of 2014 was filed by the petitioner, which was also dismissed by a Division Bench of this Court vide order dated 05.09.2017.

As far as the construction which was within 50 meters of the defence establishment was concerned, there was no ambiguity in the order of the Division Bench and the demolition was carried out, but the remaining construction which was beyond 50 meters, the Cantonment Board was to wait for a period of three months before carrying out the demolition.

The only question was from when the three months period was to be calculated, whether it would be calculated from 10.01.2018 when the Division Bench had passed the order or from the date when the actual measurement was carried out which was ultimately done on 20.03.2018. The operative portion of the Division Bench order dated 10.01.2018 is as follows:-

"We are of the view that the review is to be partly allowed and the impugned notice (Annexure - 2) in relation to Building No. 2 and structures, namely, Building No.6 falling under Building No. 2 will stand quashed. This we do for the purpose of carrying out measurement from the Work under the Defence of India Rules. Respondent Nos. 3 & 4 will carry out the measurement. If it is found that the structures are within 50 meters, they will be free to carry out the demolition as per the notice. In case, it is found that it is beyond 50 meters, then the respondent Authorities will wait for a period of three months and this is in view of the pendency of the challenge against the order setting aside the sanction order dated 30.06.2012."

(Emphasis Provided)

It is true that on clarification sought by the petitioner as to from when the three months period would start, the Division Bench of this Court vide order dated 17.05.2018 later clarified that three months period would start from 20.03.2018. This clarification was done on 17.05.2018. However, by this time, the demolition had already been carried out. The petitioner, therefore, has filed the present contempt petition before this Court saying that the order dated 10.01.2018 passed by the Division Bench of this Court has been deliberately and willfully disobeyed, inasmuch as, the demolition was carried out before the period of three months.

The reason why three months period was granted to the petitioner obviously was that the petitioner's prayer against the construction and demolition was pending before this Court in a writ petition being WPMS No.07 of 2017, in which time was given to the petitioner to raise his grievance. The aforesaid writ petition was later dismissed in any case, by this Court on 18.06.2018. Against which, a special appeal is pending, as informed by the learned counsel for the respondent.

The case of the respondent who is present in person before this Court is that he was under a bona fide belief that three months would start from the date of the order of the Division Bench passed on 10.01.2018. He has also stated before this Court that this has been done due to the advice given to him by the Senior Advocate of Delhi and there was no willfull disobedience or intention on his part to disobey the order of this Court. He has also tendered his unconditional apology before this Court.

In my view, the act of the respondent, Sri Jakir Hussain does not amount to a willfull disobedience. His apologies before this Court are also sincere.

In view of the above, the contempt petition stands dismissed. Notices given to the respondent are also hereby discharged.