Delhi District Court
Mohd. Ismail vs Commissioner on 6 September, 2017
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IN THE COURT OF DR. NEERA BHARIHOKE, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
RCA No.8787/16
Mohd. Ismail
S/o Late Sh. Murad Ali
R/o Khasra no.67, Noor Nagar
Okhla, New Delhi110025
............Appellant
Versus
1. Commissioner
Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006
2. Sh. O.P. Belwani
R/o G10/5,
Malviya Nagar,
New Delhi110017
3. Sh. Bir Bhan Setia
R/o 17/75, Malviya Nagar
New Delhi
4. Sh. Dharambir Singh Joshi
SHO PS Srinivaspuri,
New Delhi
Service be effected through
Commissioner of Police,
Police Head Quarters, I.T.O.,
RCA No.8787/16
Mohd. Ismail
Vs.
MCD & Ors.
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New Delhi
5. Sh. Satish Sharma
Inspector Police Post
Okhla New Delhi
Service to be effected through
Commissioner of Police,
Police Head Quarter,
ITO, New Delhi
6. Asif Mohd. Khan
S/o Ashiq Mohd. Khan
R/o 787/1,Zakir Nagar
Okhla, New Delhi
............Respondents
06.09.2017 O R D E R:
1. Vide this order, I shall decide the present appeal filed against the order dated 21.12.2010 passed in respect of 2 nd contempt application filed under Order 39 Rule 2A by the appellant against the respondents.
2. It is pertinent to note that the parties to the suit were only the appellant and the respondent no.1 while rest of the respondents in the contempt proceedings were not parties to the suit. Respondent No.2 and 3 are officers of Respondent No.1. Respondent no.6 is a private individual by name of Asif Mohd. Khan while respondent no.4 was SHO of PS RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 Srinivaspuri and respondent no.5 was inspector police post of Okhla who are also the respondents in the present appeal.
3. The appellant had filed the said suit for permanent injunction against the respondent on 05.04.1994 for restraining the respondent, its agents, assignees etc. from illegally and forcibly demolishing the suit property or dispossessing the appellant from the suit property i.e. property bearing Khasra no.67 of village Okhla New Delhi or in any way interfering in the peaceful possession of the appellant.
4. Brief facts of the appellant are:
4.1 The appellant is the lawful occupant and has been in possession of the suit property for more than 40 years on the date of filing of the suit and has relied on entries in the Khasra Girdawari in support of the said submission.
4.2 The appellant had also submitted in the said suit that the land in the suit has been shown under the ownership of Agra Canal Department in the Revenue Record and that the possession of the appellant falls within the abadi of Noor Nagar, New Delhi and therefore the Agra Canal Department left the same for use and occupation of the appellant and constructed boundary wall on remaining land of Khasra RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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no.67.
4.3 The appellant had submitted that he had constructed five rooms
for the residence of his family members and tin shed for the buffaloes and cows and that he has been in actual physical possession of the property for last more than 40 years on the date of filing of the suit. 4.4 The appellant had further submitted that Jiledar Pradhan of the Agra Canal Department had also sent notices dated 19.12.89 and 20.04.93 to the appellant and other inhabitants to vacate the land under their possession as the same belongs to them. The appellant has submitted that he has suitably replied to the same. 4.5 The appellant had submitted that the respondent had no right, title or interest in the property/land in possession of the appellant however the officials of the respondent were bent upon to dispossess the appellant from the suit property and demolish the suit property. The appellant had also submitted that the land in possession of the appellant had yet not been acquired by the government or any other agency and that no notice/show cause notice had been served upon the appellant by the respondent.
RCA No.8787/16
Page of 18 4.6 The appellant had submitted that the officials of the respondent had
come at the suit property on 04.04.19 94 at about 10 AM and tried to demolish the rooms and tin shed constructed by the appellant and hence the said suit for permanent injunction was filed by the appellant.
5. The respondent had filed a detailed written statement by raising objections that the said suit was barred by section 477 and 478 of the DMC Act and that the suit was not maintainable under section 321 and 322 of DMC Act. It was also stated by the respondent that the appellant had no locus standi to file the said suit as he had no right, title or interest in the suit land and the suit land is part of municipal Park and that the appellant had not come to the court with clean hands and had suppressed material fact from the court.
5.1 The respondent had also contended that the suit land had been acquired by DDA vide award no. 95/83 - 84 and the same had been handed over to the respondent on 17. 08.1987 and thus the respondent is entitled to remove the illegal occupant and encroachment upon the public Park. Rest of the submissions made in the plaint were denied by the respondent.
RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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6. Along with the suit, the appellant had also filed an application for interim injunction. The appellant has submitted that on finding a good prima facie case in favour of the appellant, learned trial court restrained the respondent no.1 herein by way of ad interim injunction dated 05.04.1994 directing that the structure standing at the suit property be not demolished. The appellant has submitted that the said order was violated by the officials of the respondent no. 1 as well as its officials along with the police officials of PS Srinivaspuri who came at the suit property at about 1 PM on 1.5.1998 and at the behest of Respondent No. 6 i.e. Asif Mohd. Khan threatened to demolish the property. The appellant has submitted that he apprised the respondents of the passing of the injunction order dated 5.4.1994 and showed a photostat copy/certified copy of the said order but the respondents did not bother to see the same and torn it into pieces by saying that they do not bother for such piece of paper and they are above the law.
7. The appellant has submitted that the respondents in utter defiance and violation of the same got substantial portion of the property of the petitioner demolished and the household articles and other costly items were also taken away by the respondents and have been misappropriated by them the value of which has been assessed to be RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 the tune of ₹1 lakh. The appellant has submitted that the action of the respondents is illegal and accordingly application under order 39 rule 2A CPC was filed by the appellant for prosecution of the contemnors which was registered as 31/09.
8. The appellant has submitted that subsequently on 31.7.1998 and 2.8.1998, Respondent No.6 sent truck of bricks for unloading the same at the property of appellant. Again on 2.8.1998 at about 4:35 PM, respondent No.6 along with respondent no.3 to 5 as well as other officials of MCD on police officials came at the spot and started raising boundary wall around the property and despite showing the stay order to them they remained adamant to construct boundary wall and continued to construct the same whole night in supervision of police officials guarded by SHO at the spot and in the said manner all of them flouted the order dated 5.4.19 94 of the court and accordingly another application under order 39 rule 2A CPC was filed by the appellate for prosecution of the contenders which was registered as 30/09.
9. Appellant has submitted that the contempt proceedings were tried by learned trial court parallel to the suit. The respondent no. 2 and 3 filed the reply to the contempt application contending that the officials of the respondents never committed any disobedience of the orders of the RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 court. Respondent No.4 and 5 in their reply also contended that they have not defied orders passed by the court and they are bound to provide the police assistance to the staff of any concerned statutory authority/government agency who requisition their help for safety of the life and limb of the staff conducting demolition.
10. From the pleadings of the parties, following issues are framed on contempt proceedings for adjudication on 25.11.2000: Whether there has been a willful and contumacious disobedience of the injunction order passed on 5.4.1994 in suit no. 3/99? OPA
11. Vide impugned order, the contempt application filed by the appellant was dismissed and hence the present appeal has been filed on various grounds. The appellant has submitted that the learned trial court has wrongly formed an opinion that there is no material whatsoever to arrive at the conclusion that the respondents have deliberately and knowingly violated the order dated your 5.04.19 94 in spite of the fact that specific dates of incidents were mentioned in the contempt application.
12. The appellant has also contended that the learned trial court erred in holding that in the instant case it is not established even prima facie that contenders had intended to disobey the orders of the court and the cause of action giving rise to filing of the application of contempt was RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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absent.
13. The appellant has submitted that learned trial court wrongly relied upon the authorities cited in the impugned order which in fact had no applicability in the facts of the case. It has been further contended that learned trial court erred in holding that merely some violation has been alleged at the hands of the respondent by itself does not attract the prerequisites of Order 39 Rule 2 A CPC as it is for the applicant to establish his own case and burden of proof squarely lies on him to allege and prove facts and circumstances enabling fixing of liability of breach against the contenders which is completely lacking in the application.
14. It has also been contended that the impugned order has been passed in a predetermined and utmost manner in spite of the fact that the appellant and his witnesses have successfully proved the violation of the court's order with specific dates and instances.
15. Respondent no. 1 in its reply have relied on the averments made by it in its reply to the contempt application before the learned trial court and has denied that there exists any ground for challenging the impugned order.
RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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16. Before the learned trial court, respondent no.1 had filed the reply and contended that the applicant being encroacher has no right and is not entitled to remain on the land which now belongs to respondent as the same having handed over to respondent no.1 by the DDA. Respondent no.1 had denied the flouting of the orders of the court. The reply of Respondent No.1 is taken to be reply of respondent no.2 as well because respondent no. 2 is official of respondent no.1.
17. Respondent no.4 to 6 did not file the reply despite being served.
Respondent No.3 in reply to the contempt application before the learned trial court had submitted that Respondent No. 3 is licensing inspector in the Central Zone and his duties are under the administrative officer and he has power to remove the goods from the public land/passage under section 321/322 of DMC Act. He further submitted that the case related to horticulture Department with which he had no concern/knowledge and had been illegally impleaded as a party to the proceedings. Before the learned trial court, Respondent No.4 had also denied violation of the order of the court and had submitted that the respondent no.4 is duty bound to render police assistance to the staff of any concerned statutory authority/government agency who requisition their help for the safety of the life and limb of RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 the staff conducting demolition. Respondent and no.4 denied that he acted in collusion with Respondent No. 6.
18. Arguments were advanced by learned counsel for the appellant and respondent no.1 and 2.
19. Arguments heard. Record of the learned trial court has been perused.
20. Vide order dated 25.11.2000, learned trial court had taken the pleas of the parties in consideration and recorded that evidence would be called to prove whether respondent no. 3 and 4 and 5 had the knowledge of the stay order and whether the MCD had not carried out any demolition in respect of the suit property after the stay order dated 5.4.94 and thereafter the issue aforementioned was framed on the same date.
21. It is noticed that the appellant only examined himself as the witness on 28.7.2009 and in his affidavit of evidence reiterated the submissions made in the contempt application in respect of violation of the order of the court dated 05.04.1994. Since no one appeared for respondent nor was any evidence filed on behalf of respondent, evidence of respondent was closed vide order dated 18.5.2010. The matter was then listed for final arguments and after hearing the arguments on 21.12.2010, the impugned order was passed on the same date. RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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22. It is noticed that in the affidavit of evidence filed by the appellant, he had deposed not only to the alleged contempt committed by respondents on 02.08.1998 but also in respect of the alleged contempt committed by them on the 01.05.1998 and in respect of the said alleged contempt committed by respondents on 01. 05.1998, learned trial court has observed in the impugned order that the witness i.e. the applicant in his affidavit stated that the certified copy of the restraint order was shown to the contemnors but they did not bother to see the same and torn it into pieces by saying that they did not bother for such piece of paper. No evidence has been brought on record to show that the contemnors torned the order of the court. No independent witness has been produced in the court to corroborate the version of the applicant. None of the photographs placed on record by the applicant shows that the order of the court had been shown to the contemnors and they torn it into pieces. All these observations have already been found to be correct while disposing of appeal against the order passed in M31/09 i.e. RCA 8789/16.
23. It is noticed that in his examination in chief the appellant tendered in his testimony 25 documents out of which 22 were photographs while copy of site plan was tendered as Ex.AW1/1, copy of complaint dated RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 12.12.1996 was tendered as Ex.AW1/2 and copy of complaint dated 01.05. 1998 was tendered as Ex.AW1/3. Contents of Ex.AW1/2 and Ex.AW1/3 have been gone through. The photographs tendered as Ex.AW1/4 to Ex. AW1/25 have also been seen. None of the photographs reveal any demolition work in progress in respect of alleged demolition of the suit property by the respondents on 1.5.1998 or on 2.8.19 98 showing that any structure standing on the suit property is being demolished or that any boundary wall is being constructed by the respondents as alleged in the 2 nd contempt application filed by the appellant.
24. Be that the case as it may, there is no infirmity in the impugned order that none of the photographs reveals that the injunction order of the court was shown to the contemnors nor any of the photographs reveals that the contemnors torn it into pieces nor any of the photographs shows that the boundary wall was being raised by the respondents as alleged in the 2nd contempt application. It is further noticed that the appellant had filed a list of 14 witnesses however he did not examine any of them in the witness box and examined only himself as a witness.
25. Appellant was well aware of the issue framed in respect of which the evidence was to be led by him which specifically placed onus on him to RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 show that there was disobedience of injunction order dated 05. 04.1994 and the same was willful and contumacious. Despite knowing that, the appellant did not lead any evidence to show that the copy of the injunction order was shown to the respondents or that they had torn it into pieces as alleged for the contempt alleged to have been committed on the government on 01.05.1998 or that they constructed the boundary wall on 2.8 1998 despite knowledge of the injunction order. Unless the same was proved by the appellant, allowing of the application under Order 39 Rule 2A could not have followed which even otherwise is a discretionary remedy. It was for the appellant to prove the disobedience and that too willful on part of the respondents which he could have proved by summoning the persons who were present at the time of the alleged incident of demolition or by taking photographs catching the moment of constructing of the boundary wall willfully after disregarding the injunction order. The other three documents exhibited by the appellant before the learned trial court also cannot be considered as a material to arrive at the conclusion that the respondents deliberately and knowingly violated the order dated 05.04.1994.
RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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26. Learned trial court has rightly relied on the law laid down in the matter titled M/s Jai Durga Industries versus Shri Ranjeet Singh, 1994 (IV) A.D. (Delhi) 55. In the said matter it has been held by the Hon'ble High Court of Delhi that the proceedings under Order 39 Rule 2 A CPC involve penal consequences and that the burden of proof lies on the petitioner to allege and prove facts and circumstances enabling fixing of liability of breach on the person proceeded against.
27. It has been rightly observed by learned trial court in the impugned order that there is no material whatsoever to arrive at the conclusion that the respondents have deliberately and knowingly violated the order dated 05.04.1994. I find no infirmity in the observation of the learned trial court that no material whatsoever has come up on record or even brought on record by the appellant to show the alleged flouting of orders.
28. Learned trial court has rightly mentioned the purpose of Order 39 Rule 2 A CPC that this provision is not to punish the man but to see that the order is obeyed and the wrong done by willful disobedience of the order is remedied and the status quo ante is brought into effect. RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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29. The application filed by the applicant under Order 39 Rule 2 A CPC has also been perused. On perusal of the same along with the documents placed on record by the appellant in the proceedings under Order 39 Rule 2 A CPC, it is noticed that the appellant had failed to establish that contemnors intended to disobey orders of learned trial court. Perusal of the observations of learned trial court on 25.11.2000 reveals that learned counsel for MCD i.e. respondent No. 1 stated that after the vacation of the status quo orders in another case in relation to adjoining property, the MCD had undertaken demolition work to remove the encroachment in the adjoining land but the present applicant i.e. the appellant was claiming that his property had also been demolished and he further submitted that no contempt had been committed and it was thereafter that the learned trial court had framed the aforementioned issue.
30. The appellant did not examine or produce any witness to disprove/belie the statement of the respondent no.1. The appellant had filed the suit against the respondent no.1 and learned trial court had passed the order dated 05.04.1994 against Respondent No. 1 alone. The appellant has not shown as to how the other respondents in the said proceedings were bound by the injunction order passed against Respondent No.1 RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
Page of 18 alone without the same being brought to their knowledge. Further it is noticed that the order dated 05.04.1994 was not absolute. It was conditional which read as:
"In the meantime structure standing at the site be not demolished if the land and the structure has not been taken possession of in pursuance of the proceedings of award no.95/83-84 by UOI and has not been notified as Nazul Land or has not placed at the disposal of DDA or MCD.
31. Respondent no.1 had filed a detailed written statement on 19.5.1994 and it was specifically mentioned in para 6 that the land in question was acquired by DDA vide award no. 95/83 - 84 and thereafter the area in question was handed over to the respondent by DDA on 17.8.1987 for development of Park. Photocopy of the handing over taking over/layout plan of the area showing the Park site which included the suit property as well was also filed along with the written statement. Thus the injunction order dated 05.04.1994 was a conditional ad interim order and in view of the submissions made by respondent no. 1 in para 6 of written statement duly supported by the layout plan of the area recording giving and taking of the possession of the suit property by the DDA to the respondent, the interim order was not applicable on the date of the alleged incident of violation of the same. RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.
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32. In view of these observations, the order of learned trial court is upheld as there is no merit in the present appeal and the appeal is accordingly dismissed. File be consigned to record room. (Announced in open Court on 06.09.2017) (Dr. Neera Bharihoke) ADJ01, South District Saket Courts, New Delhi RCA No.8787/16 Mohd. Ismail Vs. MCD & Ors.