Allahabad High Court
Cantonment Exec. Officer, Cantonment ... vs Smt. Puspa Devi And Others on 29 January, 2014
Author: Vikram Nath
Bench: Vikram Nath
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R Case :- CONTEMPT APPLICATION (CIVIL) No. - 380 of 2001 Petitioner :- Cantonment Exec. Officer, Cantonment Board, Meerut And Anr. Respondent :- Smt. Puspa Devi And Others Petitioner Counsel :- Prashant Mathur Respondent Counsel :- P.K.Jain,Amit Daga,Ashutosh Gupta,Kuldeep Saxena,P.K. Jain,S.C.,S.N. Singh,Sanjay Agarwal,Satyam Singh Hon'ble Vikram Nath,J.
"Disobedience of orders of the Court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which it is sacredly entrusted, the dignity and authority of the Courts have to be respected and protected at all costs". The above is an extract from a recent judgement of the Apex Court in the case of Maninderjit Singh Bitta Versus Union of India and others reported in (2012) 1 SCC 273. Material on record of this contempt petition unfolds a blatant and glaring case of continuous and many faceted deliberate and wilfull disobedience of an injunction order obtained by the opposite party no.4 from this Court. A huge plot of land admittedly situate within the domain and supervision of Cantonment Board, Meerut (hereinafter referred to as the Board) measuring 9.06 acres has been divided into dozens of plots, sold to different persons and a whole colony constructed containing palatial residential buildings, shopping and commercial complexes including a Mall in gross violation of the injunction order. Opposite party no.4 got a power of attorney executed in his favour from opposite parties no. 1 to 3 and thereafter proceeded to sell plots, get buildings raised without any sanction or approval of the Board and in the process himself raised three huge constructions and encouraged the purchasers to raise their individual constructions all without getting any building maps being approved by the Board in gross violation and disregard to the Rules, Regulations and Bye-laws of the Board and of course in violation of the injunction order. The Court is shocked at the courage, boldness, mischief and the deep rooted disregard shown by the opposite party no.4 in committing the grossest contempt continuing for years together. He has also been dishonest and deceitful in not disclosing to purchasers about the pending litigation and the injunction orders passed by the High Court. The facts recorded in this order leaves the Court with no option but to award the maximum punishment permissible under law and issue other necessary directions in the interest of justice. This contempt application filed by Cantonment Executive Officer and President of the Cantonment Board, Meerut Cantonment under Section 12 of Contempt of Courts Act, 1971 (hereinafter referred to as 1971 Act) alleges disobedience of the order dated 13th April, 1995 passed by a Division Bench of this Court in First Appeal From Order No. 298 of 1995 - Smt. Pushpa Devi and others Vs. Cantonment Board Meerut and others. In the contempt application (i) Smt. Pushpa Devi wife of Late Sumant Prasad Jain, (ii) Chandra Prakash Jain S/o Late Sumant Prasad Jain (iii) Vijay Prakash Jain S/o late Sumant Prakash Jain and (iv) Sri Anand Prakash Agarwal S/o Dhan Prakash Agarwal {holding power of attorney of opposite parties (i) to (iii)} have been impleaded as opposite parties. Order dated 13.04.1995 passed by the Division Bench in the aforementioned First Appeal From Order reads as follows :-
"Sri A. K. Sinha has accepted the notices on behalf of respondents no1. and 2. He prays for and is granted three weeks time to file counter affidavit. Appellant will have one week thereafter to file rejoinder affidavit.
List this appeal immediately after expiry of aforesaid period.
Meanwhile, parties are directed to maintain status quo with regard to Bunglow no.210-B, Western Road, Meerut Cantt. Appellants shall also not raise any further construction nor respondents shall demolish any construction. "
There is a property described as Bungalow No.210-B, West End Road, Meerut Cantonment, Meerut. The said property is alleged to be owned by Government of India and managed by Defence Estate Officer, Meerut. As per the extract from the General Land Register (GLR) the property is comprised in Survey No.313 and has a total area of 9.06 acres. The opposite party is said to have occupancy rights over the land in terms of the Old Grants governed by terms and conditions contained in the GGO No.179 of 1836 dated 12.09.1836. Certain illegal and unauthorised constructions were being raised over vacant land being part of bungalow in question, whereupon under provisions of the Cantonment Act, 1924 (hereinafter referred to as 1924 Act), directions were issued to demolish unauthorised constructions. In order to protect the constructions from being demolished Opposite party no.1 Smt. Pushpa Devi and others instituted a suit claiming relief of permanent injunction before the Civil Court, Meerut which was registered as Suit No.581 of 1994 - Smt. Pushpa Devi and others Vs. Cantonment Board, Meerut and others. Along with the plaint an application for ad interim injunction was filed with the allegations that the plaintiff's therein were the owners of Bungalow No.210-B, West End Road, Meerut; the Bungalow was very old and was in dilapidated condition; for the protection of the Bungalow repairs were necessary; the repairs would not in any manner violate Section 179 of the 1924 Act; the plaintiff wanted to maintain the bungalow in its original shape; despite the fact that plaintiff had not violated any of the provisions of the 1924 Act the Board had issued public notices in the daily newspaper on 21.06.1994 and 22.06.1994 to demolish the bungalow; on 30th June, 1994 task force had been sent by the Board to demolish the constructions; on the intervention of residents of the locality the demolition could not take place; there is apprehension that on any date the constructions may be demolished. Objections were filed by the Cantonment Board alleging that Union of India was the owner of the Bungalow No.210-B; the plaintiffs had occupancy right only; the bungalow has large area of open vacant land; the condition of the building of the bungalow is good and it does not require any repair as alleged; in fact the plaintiffs are not making any repair in the building of the bungalow but are raising new constructions by building shops in gross violation of the provisions of Section 178 and 179 of the 1924 Act; no permission has been taken from the Cantonment Board or the Defence Estate Officer; the public notice published in the newspaper on 21st and 22nd June, 1994 was with regard to any unauthorised constructions within the Cantonment area; no task force had been sent on 30th June, 1994 for demolition of the building of the bungalow; show cause notice was given to the plaintiffs on 16th June, 1994; the construction being raised by the plaintiff does not fall in the category of repair work of the bungalow. After exchange of affidavits the Trial Court passed a detailed order dated 6.4.1995 rejecting the application for interim injunction (Annexure 1 to the affidavit filed in support of the contempt application). Aggrieved by the said order plaintiffs preferred a First Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 before this Court registered as FAFO No. 298 of 1995. A Division Bench of this Court on 13th April, 1995 passed an order of injunction directing the parties to maintain status quo with regard to the Bungalow in question, it also restrained the appellants (Smt. Pushpa Devi & others) from raising any further constructions and further restrained the respondent authorities (Cantonment Board & others) from demolishing any constructions. The aforesaid first appeal from order is still pending before this Court. The opposite parties violated the injunction obtained by them which compelled the applicants to file this contempt application. In paragraph nos. 15 to 19 of the affidavit filed in support of the contempt application, it has been averred that despite the injunction order passed by this Court on 13th April, 1995, opposite parties were continuing to raise constructions; that they themselves having obtained the injunction order were violating the same knowingly, wilfully and deliberately and as such were liable to be punished for committing contempt. The contempt application was presented on 12th February, 2001 and notices were issued to the opposite parties no.1 to 4 on 13th February, 2001. Along with the affidavit filed in support of the contempt application, Cantonment Board also annexed a number of notices / reports regarding unauthorised constructions given to different parties referred to as occupier / offender and in all the notices of unauthorised constructions name of Anand Prakash Agarwal (opposite party no.4) finds mention. These notices are annexed as Annexures A-III to A-IX along with the affidavit. The following table will provide in short the details contained in the notice. Sl.No. Annexure No. Date Name of offender Date of starting or restarting constructions Remarks, if any.
1 A-III 26.04.96
(i) Smt. Laxmi Devi
(ii) Shri Anand Prakash Agarwal started on 09.01.1996 and restarted on 18.04.96 2 A-IV 26.04.96
(i) Smt. Kamlesh
(ii) Sri Anand Prakash Agarwal started on 09.01.96 and restarted on 18.04.96 3 A-V 16.05.96
(i) Smt. Krishna Agarwal (ii) Sri Anand Prakash Agarwal Started as per first report and work is going on 4 A.VI 29.09.99
(i) Sri Anand Prakash Agarwal
(ii) Chandra Prakash Jain (iii) Smt. Pushpa Devi (iv) Sri Vijay Prakash Started on 2.9.1999 and work is going on.
5 A-VIII 29.09.96
(i) Smt. Pushpa Devi (ii) Sri Chandra Prakash Agarwal (iii) Sri Vijay Prakash (iv) Sri Anand Prakash Agarwal Started on 28.08.1999 and work is going very speedily 6 A-VIII 11/12/00
(i) Sri Anand Praskash Agarwal (ii) Sri Chandar Prakash Jain (iii) Sri Vijai Prakash Jain (iv) Smt. Pushpa Devi Started as per first report on 28.8.99 and work is going on 7 A-X 14.12.2000
(i) Sri Anand Prakash Agarwal (ii) Smt. Pushpa Devi (iii) Sri Vijay Prakash Jain (4) Sri Chandar Prakash Jain. Re-started on 8.12.2000 and work is going on.
These reports clearly mention that constructions were still going on even in the year 1999-2000. Photographs were also annexed along with affidavit to show the constructions which were going on just before filing of contempt application. A communication dated 21st December, 2000 was also annexed to show that a complaint was made to Station House Officer, Police Station Sadar Bazar, Meerut Cantonment requesting him to stop the encroachment and unauthorised constructions. Upon service of notice opposite party no.4 filed counter affidavit dated 30.11.2004. In the counter affidavit filed by Anand Prakash Agarwal, (opposite party no.4) it was stated that opposite party no.1, Smt. Pushpa Agarwal had expired on 14.12.2001, further opposite party no.3 lives outside India for more than 35 years and opposite parties no. (i) to (iii) had executed power of attorney in his favour on 07.11.1991. With regard to merits of the matter it was alleged in the counter affidavit that:
(i) the contempt application was filed after expiry of one year from the date on which the cause of action arose, as such was not maintainable in view of bar contained in Section 20 of the 1971 Act;
(ii) the suit out of which the FAFO arose had been dismissed as withdrawn on 30.11.2000 prior to the filing of the contempt application, as such no breach or violation could be alleged;
(iii) declaratory suit filed by opposite parties (Suit No.836 of 1999) was decreed by the trial Court on 18.04.2000 and first appeal filed by Union of India was dismissed on 3011.2000, however Second Appeal No.276 of 2001, Union of India Versus Smt. Pushpa Devi and others was pending before the High Court, with no interim orders therein till that time (later on, it may be recorded, an interim order was passed on 28th March, 2006);
(iv) it was denied that any unauthorised constructions are being raised as alleged in paragraphs 12 to 19 of the affidavit filed in support of contempt petition.
It was brought on record by way of affidavits filed by applicants that in addition to constructions being made in violation of interim injunction the opposite party no.4 was continuously executing sale deeds of parts of open land of the property in dispute which was also in violation of interim order of status quo. This Court after considering the replies filed by opposite parties vide order dated 27.7.2007 framed charges against Anand Prakash Agarwal- opposite party no.4. The charge as framed in the order dated 27.07.2007 reads as follows :-
" Heard learned counsel for the parties.
A detailed order was passed on 25.5.2007 incorporating the facts and different orders of this Court, including the order dated 1.3.2006 by which the opposite party no.4 was summoned for framing of charges. The said order dated 25.5.2007 shall form part of this order.
Shri Anand Prakash Agrawal, opposite party no.4 has been produced before this Court through the agency of the Senior Superintendent of Police, Meerut who has filed his personal affidavit. Shri Agrawal has filed a supplementary affidavit and an exemption application also. After hearing the counsels at length, a prima facie case for trial of Shri Agrawal is made out and the following charges are framed against him:-
You Anand Prakash Agrawal, opposite party no.4, show cause why you should not be tried and punished under Section 10 to the Contempt of Courts Act 1971 for deliberate and wilful violation of the interim injunction granted by this Court on 13.4.1995 in First Appeal From Order No.202 of 1995 for having transferred parts of the property through various sale deeds and for raising constructions.
A copy of the reply to the show cause may be served on the counsel for the applicant on or before 1.3.2007. Since Shri Agrawal did not appear on the earlier occasion in spite of directions, he would submit a Bank draft for an amount of Rs.50,000/- drawn in favour of the Registrar General of this Court by 28.7.2007 to secure his presence on the next date. In case of default in depositing the aforesaid draft he shall be taken into custody by the Registrar General of this Court to be produced before the Court on the next date. In case Shri Agrawal does not appear on the date fixed even after submitting the Bank draft, the same may be liable to be forfeited. "
The opposite party no.4 filed his affidavit in reply to the show cause notice after the charge was framed. This affidavit is dated 29.07.2007 and was filed on 3rd August, 2007. In paragraph 3 of the affidavit an unconditional apology has been tendered. It is further stated that no deliberate or intentional act has been committed by the deponent and that he undertakes to be more cautious in future. In paragraph 4 of the affidavit, it has been stated that the Original Suit No.581 of 1994 was dismissed on 30th November, 2000 and the FAFO No.298 of 1995 was abandoned as on 29.01.2001 after due notice to the applicant i.e. Cantonment Board. It further refers to Original Suit No.836 of 1999 being decreed on 18th April, 2000 i.e. prior to the dismissal of the Suit No.581 of 1994 on 30.11.2000. The said paragraph further states that subsequent purchasers who were well identified to the Cantonment Board as against them the Cantonment Board had proceeded for demolition of unauthorised constructions as such opposite party no.4 cannot be held liable for prosecution for any contempt committed by subsequent purchasers. In paragraph 5 of the affidavit, it was stated that opposite parties to the contempt application were already declared as true owner of the property in dispute by the Civil Court in the declaratory suit filed by them. It further mentioned that appeal filed by Union of India was dismissed and thereafter a second appeal filed by Union of India was pending before the High Court in which there was no interim order initially but was granted only in the year 2006. It was further stated that the opposite parties to the contempt application were well within their rights to execute the sale deed till 28th March, 2006 on which date they were restrained from transferring the property in dispute by way of an interim order passed in the second appeal. In paragraph no.6 of the affidavit plea of limitation and the bar contained in Section 20 of 1971 Act has been raised. In paragraph 7 of the affidavit it was stated that the contempt application was not maintainable as applicant had remedy of filing an application under Order 39 Rule 2-A of the C.P.C., in the pending First Appeal From Order for alleged violation of order dated 13.04.1995. It further mentioned that in pending Second Appeal No.276 of 2001, Union of India had already preferred an application under Order 39 Rule 2A of the C.P.C. for violation of the injunction granted on 28.03.2006. Paragraph nos.9 to 11 are repetition of the previous paragraphs. Paragraph nos.13 to 19 deal with the facts relating to civil litigation which has already been referred to above. In paragraph no.20 of the affidavit it was stated that the suit for perpetual injunction being O.S. No.581 of 1994 was dismissed as withdrawn on 30th November 2000. Paragraph nos. 21 and 22 state that an application was filed on 29.1.2001 before the High Court to withdraw the First Appeal From Order No.298 of 1995 and on 30th January, 2001 the said application was directed to be listed in the next cause list. Paragraph no. 23 mentions that the present contempt petition was filed on 12th February, 2001. Paragraph nos. 24 to 28 refer to an order being passed in contempt proceedings on 01.03.2006 summoning opposite party no.4 for framing of charges. A contempt appeal was filed against the order dated 01.03.2006 which was dismissed on 15.05.2006 against which Special Leave to Appeal was preferred before the Apex Court which was disposed off with liberty to the opposite party no.4 to withdraw the petition with the following observations :-
" We may however observe that it would be open to the petitioner to raise before the learned Single Judge in contempt proceedings all the points which has been taken in the S.L.P. and the contempt application shall be disposed of without being prejudiced by any observation made in the impugned order passed by the Division Bench. The Special Leave Petition is accordingly disposed of. "
The opposite party no.4 in the above circumstances prayed that notices be discharged and contempt proceedings be dropped. In addition to the reply submitted by opposite party no.4 to the charge framed against him and the show cause notice given to him, he has filed documents in support of his defence, which would be referred to at an appropriate stage later in this order. Applicants have also filed certain documents in support of the application and have also led oral evidence of Kamal Singh Yadav, K. A. Gupta, Piyush Gautam and Anoop Singh as P.W. I to P.W IV. All four witnesses were cross-examined by the learned counsel appearing for opposite party no.4. The order sheet of this court records a number of orders passed in detail recording the blatant violation by opposite party no.4 in continuing to raise constructions in defiance of the interim injunction order dated 13.04.1995 obtained by opposite party no.4 as one of the appellants. Reference is being made to a few of the said orders. This Court vide order dated 7.8.2007 required opposite party no.4 to file copies of various sale deeds and agreement to sell executed by him with respect to the land comprising of Bungalow No.210-B, West End Road, Meerut Cantonment. Thereafter another order was passed on 22.5.2009 requiring opposite party no.4 to disclose certain information along with details. The said order dated 22.05.2009 is reproduced below :-
In the city of Meerut there is an allegedly old grant premises known as Bungalow no.210-B, Western Road, situated within the Cantonment limits and has an area of about 9.6 acres wherein stood a building. When the respondents started making new constructions without any approval of the Cantonment Board or the Defence Estate Officer, several notices were issued as the constructions were in violation of various provisions of the Cantonment Act for stopping construction. The opposite parties instituted Suit No.581 of 1994 for permanent injunction against the Board along with an application for temporary injunction which was rejected vide order dated 6.4.1995. The respondents thereafter preferred a First Appeal From Order no.202 of 1995 before this Court where an interim order was passed on 13.4.1995 to the following effect :-
" Meanwhile, parties are directed to maintain status quo with regard to Bungalow no.210-B, Western Road, Meerut Cantt. Appellants shall also not raise any further construction nor respondents shall demolish any construction."
Nevertheless, the respondents continued with the constructions despite several further show cause notices and first information reports. Therefore, this contempt petition was filed on 12.2.2011 alleging violation of the aforesaid injunction order of this Court. After pleadings were exchanged, the parties were heard at length and judgment was reserved. During dictation of the judgment, the Court found that certain facts which are relevant, were either not available on record or there was some doubt. Accordingly, the respondent no.4, who is contesting this case, is directed to disclose the following information to the Court along with the details as below :
(1) Disclose all agreements of sale with transfer of possession executed on or after 13.4.1995 with the names of the vendees, their addresses and also disclose the area and whether any constructions have been made thereon.
(2) Disclose the details of all sale deeds executed on or after 13.4.1995 with the aforesaid details.
Note- He would also refer to the map prepared by the Advocate Commissioner, so that during hearing the property can be identified in the said map. (3) Disclose whether there was any mention of the aforesaid injunction of this Court dated 13.4.1995 in the said agreements of sale and the sale deeds, so executed and if not then whether any information was given and by which mode. The applicants shall disclose the details of the writ petitions filed by the aforesaid persons in this Court and the date of interim order granted therein . The respondent no.4 shall personally swear the affidavit while a 1st Class Gazetted Officer of the Board shall swear its affidavit. Both the affidavits be filed on or before the next date.
List on 17th of July, 2009. "
Affidavits have been filed by opposite party no.4 in compliance to the orders dated 7.8.2007 and 22.05.2009 annexing the sale deeds, as also providing the details. From a perusal of affidavits filed by opposite party no.4 in pursuance to the aforesaid two orders it is borne out that approximately 58 number of sale deeds were executed by opposite party no.4. Details of the sale deeds giving the area covered by the sale deed, the name of the vendee with address will be apparent from the following tables:-
List of sale deeds annexed with counter affidavit of opposite party no.4 dated 16.04.2010.
Sl. No. Date of sale deed Area covered Vendee Address Remarks (1) status (2) Annexure 1 30.06.1989 26 sq. meter (shop) Sardar Jagmohan Singh, Jasveer Singh 381, Subhash Puri, Meerut CA-8 2 23.8.1997 50.16 sq. Meter Kapil Sharma Piyush Sharma Vikash Sharma Sadar Bazar Cantt. Meerut CA-9 3 N.A 150 sq. m (plot) Late Raja Ram Shiv Chowk, Ghantaghar, Meerut, Cantt.
CA-10 4 N.A. 500 sq. m Swneshwar Dayal Bombay Bazaar, Meerut Cantt.
CA-11 boundary wall constructed 5 20.09.2003 146.66 sq yard (house) Shalini Khanna 210-B, West End Road, Meerut CA- 12 house constructed 6 NA 120 sq. yard (house) Billey Singh 210-B West End Road, Meerut CA-13 house constructed unauthorised possession 7 NA 140 sq. yard (house) Budh Prakash 210-B West End Road, Meerut CA-13 house constructed unauthorised possession 8 2003 220 sq. yard (house) Anil Kumar Jain 210-B West End Road, Meerut CA-14 house constructed 9 2005 275 Sq. yard Rubi Jan 26, Alimpura, Meerut Cantt.
CA-15 boundary wall & room constructed 10 1999 40 Sq. yard (shop) Lalit Nagdev N.A CA-16 shop constructed Details of sale deed annexed with the application and affidavit of opposite party no.4 dated 7th September, 2009.
Sl. No. Date of sale deed Area covered Vendee Address Remarks (1) status (2) Anenxure no.
1 1992-1993 building 21- shop N.A Anoop Garg, Kapil Vashisht, Peeyush Vashist, Vikas Vashist, Narendra Sharma, Guru. C. Arora, Puspehwar Gaur, Sadar Kale Singh 210-B, West End Road, Meerut Annexure 2 2 N.A 200 Sq. yards (plot) Deepa Allen N.A Annex. 2 3 31.3.1995 154 Sq. yards (plot) Lakshmi Devi 210-B West End Road, Meeurt.
Annex. 3 4 01/05/95 220 Sq. yards (plot) Kamlesh Sharma 210-B West End Road, Meeurt.
Annex. 4 5 01/03/95 220 Sq. yards (plot) Krishna Agarwal 210-B West End Road, Meeurt.
Annex. 5 6 N.A 200 Sq. yards (plot) Suraj Prakash Bombay Bazaar, Meerut N.A 7 N.A. 150 Sq. yards Raja Ram Shiv Chowk.
Ghantaghar, Meerut Cantt.
N.A 8 N.A. 250 sq. yards Dinesh Kumar Swarjpath, Abu Lane, Meerut Cantt.
N.A 9 01/08/94 110 Sq. yards Sushila Devi 34, Jandel Mohalla, Rajwan, Meerut Cantt.
Annex. 6 10 N.A. 220 Sq. yards (plot) Amit Gupta Lal Kurti, Meerut Cantt.
N. A 11 13.06.1997 200 Sq. yard (plot) (house) Mukesh Kumar Gupta N.A Annex. 7, 8 construction 12 11/02/98 269 sq. yard (plot) Gulab Singh 210-B West End Road, Meeurt.
Annex. 9 13 1997-98 220 sq. yard (house) Shail Bala 210-B West End Road, Meeurt.
N.A 14 03/08/99 220 sq. yard (house) Sunita Verma 210-B West End Road, Meeurt.
House constructed Annex. 10 15 1999 150 Sq. yards (house) Meenu Rani 210-B West End Road, Meeurt.
House constructed N.A 16 03/07/98 146.66 sq. yards (house) Harjeet Kaur 210-B West End Road, Meeurt.
House constructed Annex.12 17 19.06.1996 220 sq. yards (house) Rani Gayal 210-B West End Road, Meeurt.
House constructed Annex.12A 17 10/03/93 2100 sq.yards (house) J. P. Agarwal Kabadi Bazaar, Meerut.
House constructed Annex.12B 18 N.A 500 sq. yards Sumeshwar Dayal Bombay Bazar,Meerut Cantt.
boundary wall constructed N.A 19 N.A 120 sq. yards Dilley Singh 210-B West End Road, Meeurt.
house constructed, unauthorised possession 20 20.9.2003 146.66 sq. yards Shalini Khanna 210-B West End Road, Meeurt.
house constructed Annex. 13-14 21 N.A 140 sq. yards Budh Prakash 210-B West End Road, Meeurt.
house constructed unauthorised possession 22 7.8.1998 9.3.2005 7.8.1998 6.8.1998 1500 sq. yards Janak Raj, Satish Kumar, Nishant Kumar, Naresh Kumar 210-B West End Road, Meeurt.
house constructed Annex. 15 23 2003 220 sq. yard (house) Anil Kumar Jain 210-B West End Road, Meeurt.
N.A. house constructed 24 18.8.2003 17.10.2003 360 sq. yard (house) Sandeep Kumar 210-B West End Road, Meeurt.
house constructed.
Annex. 16 25 10/04/03 340 sq. yard (house) Juhi Saxena 210-B West End Road, Meeurt.
house constructed.
Annex. 17 26 1999 220 sq. yard (godown) S. K. Agarwal 35-EGali No.8, Mansarover, Meerut City Go-down constructed.
Annex. 18 27 29.05.1999 275 sq. yard (house) Balbir Singh Kohli 210-B West End Road, Meeurt.
house constructed.
Annex. 19 28 30.08.1999 400 sq. yard (house) Kamlesh Jain, Sanjeev Kumar Jain, Rajiv Kumer Jain 210-B West End Road, Meeurt.
house constructed.
Annex. 20 29 12/08/05 220 sq. yard (house) Renu Shankar 210-B West End Road, Meeurt.
house constructed.
Annex. 21 30 20.5.2003 220 sq. yard (house) Manju Garg 210-B West End Road, Meeurt.
house constructed.
Annex. 22 31 10/04/03 220 sq. yard (godown) Mukesh Agarwal Shivaji Colony, Meerut Cantt.
Go-down constructed Annex. 23 32 19.7.2002 200 sq. yard (house) Pawan Kumar Garg 210-B West End Road, Meeurt.
house constructed.
Annex. 24 33 17.10.2003 220 sq. yard (house) Shobha Gupta 210-B West End Road, Meeurt.
house constructed Annex. 25 34 2005 275 sq. yard (plot) Rubi Jain (re-purchaser) 62, Alimpura, Meerut Cantt.
Boundary wall and one room constructed N.A 35 24.08.2005 256 sq. yards Kumkum Jain (re-purchaser) 210-B West End Road, Meeurt.
house constructed Annex. 26 36 25.08.2005 11.07.2005 300 sq. yards 234 sq. yards M/s Shanti Associates through Yogendra Singh 77-A, Tandel Mohalla, Rajbar Meerut Cantt.
commercial hall constructed Annex. 27 37 22.06.2005 52 sq. yards Kamal Walia A-84, Defence Colony, Meerut Cantt.
house constructed Annex. 28 38 10.3.1993 2.9.1993 10,000 sq.yards plot (agreement to sale) Dhani Ram Sadar, Meerut Cantt.
shopping area, constructed Annex. 29 39 19.12.2002 24.52 sq. yard plot Deepak Sharma Ranjit Puri, Meerut shop constructed Annex. 30 40 1999 40 sq. yard (approx.) Lalit Nagdev N.A Shop constructed N.A 41 08/01/01 115 sq. yard Umesh Kumar Singhal 6,Ramakutir,P.L. Sharma Road, Meerut Annex. 31 42 23.3.2004 200 sq. yard Rajendra Kumar 123/3, Pragiti Nagar, Meerut Annex.32 43 01/05/95 198 sq. yard Kamlesh Sharma Indra Nagar, Meerut Annex.33 44 11/10/04 200 sq. yard Kala Devi 8-A, Chana Market, WEO, Karol Bagh, New Delhi.
Annex.34 45 14.6.2004 200 sq. yard Tushar Agarwal 122, Rajpur Road, Dehradun Annex.35 46 14.6.2004 400 sq. yard Som Lata 122, Arya Nagar Annex.36 47 20.10.2005 200 sq. yard Atul Bansal Nikunj Bansal Thapar Nagar, Meerut Annex.37 48 25.11.2004 341 sq. yard Puram Gupta 199 Tanki Mohalla, Sadar, Meerut Cantt.
Annex.38 In the meantime contempt court had appointed an Advocate Commissioner vide order dated 10.09.2007 to submit a report on the following aspects :-
(A) Whether any new constructions have been erected over the vacant land comprising of Bungalow No. 210-B Western Road, Meerut Cantt., if so its extent and stage?
(B) Whether in fact any repair, reconstruction or renovation have been made in the old building situated on the said land.
(C) To identify the land for which notices were issued by the Cantonment Board and are annexed as Annexure A-III to A-IX of the contempt petition as mentioned in paragraph 15 and whether the construction in fact are standing thereon, if so its stage ?
The Advocate Commissioner made an inspection of the spot on 28.09.2007 after giving due notice to the counsel for the parties as also the administration. Report was submitted on 3rd October, 2007, which is part of the record. It would also be relevant to mention here that on the inspection report objections were invited. Opposite party no.4 filed objections dated 25.10.2007 which does not dispute the Advocate Commissioner's report with regard to the constructions. Paragraphs 8 and 9 of the report submitted by the Advocate Commissioner contain the answers to the three questions framed in the order dated 10.09.2007. Both the aforesaid paragraphs of the report are reproduced below :-
" 8. That while passing the order dated 10.09.2007 the Hon'ble Court has been pleased to direct the undersigned to submit a report with regard to issues framed by the Hon'ble Court and in pursuance to the same the present report is being submitted for kind consideration of this Hon'ble Court issue-wise:
ISSUE NO. 'A' While framing the present issue the Hon'ble Court has directed to ascertain as to whether any new construction have been erected over the vacant land comprising of Bungalow No. 210-B Western Road, Meerut Cantt., if so its extent and stage ?
In this regard it is respectfully submitted that the constructions shown in the map annexed with the report are all new constructions erected over vacant land comprising of Bungalow No. 210-b Western Road, Meerut Cantt., and are standing over there as is clear from the photographs annexed with this report.
Construction No.1 as shown in the map of which photograph Nos.23, 24, 25, 26, 52, 53 and 54 are found on spot in the shape of shops which are 21 in number are existing thereon, and measurement of other constructions over land are shown in map and photographs of constructions are already attached with this report.
ISSUE NO. 'B' While framing this issue the Hon'ble Court has directed to ascertain as to whether in fact any repair, reconstruction or renovation have been made in the old Building situated on the said land ?
In this regard it is submitted that at the time of inspection of old building situated on the said land no repair work, reconstruction or renovation was found in the said old Building, and the same is found in tenancy of a third person as informed by the parties present on spot. (Photograph Nos.27 to 34 are of Old Bungalow No.210-B Western Road, Meerut Cantt.).
ISSUE NO. 'C' While framing this issue the Hon'ble Court has directed to identify the land for which Notices were issued by the Cantonment Board and are annexed as Annexure A-III to A-IX of the contempt petition as mentioned in 15 and whether the constructions in fact are standing thereon, if so its stage ?.
In this regard it is submitted that by the above-noted Notices 4 constructions as shown in the map as (No.3,4, 5 and 19) were alleged to be unauthorized which were inspected by me and were found standing thereon as shown in the map annexed with this report and the stages are apparent as visible in photograph Nos.35, 36, 37, 38, 39, 40, 41 and 42 which are part of this report.
9. That in view of facts and report submitted above, it is apparently clear that:
1) There is no repair, reconstruction or renovation in old Bungalow No.210-B, Western Road, Meerut Cantt.
2) The constructions alleged to be unauthorized are standing on spot over the vacant land of old Bungalow as shown in the map attached with the report which are appears to be newly constructed.
3). the constructions regarding which the Cantonment Board issued notices are also standing thereon as visible in photographs.
4). The constructions shown as MALL (No.40) is a three-storied Building which is under construction, and found to be sealed, hence internal inspection could not be made. The state of said Mall is clear from photograph Nos.43,44,45 and 46 which is already annexed with this report.
The Advocate Commissioner also submitted an Album containing photographs and connecting those photographs to various plots and the constructions raised on each plot through a map of Bungalow No.210-B, West End Road, Meerut Cantonment, Meerut. The photographs show large scale constructions made during the pendency of the appeal, and in gross violation of the order dated 13.04.1995. Modern houses of double and triple storeys have come up. There are commercial buildings also which have been constructed. From a comparison of the map and the photographs it is apparent that on plot no.36 of the map, corresponding to photograph no.65, a residential house is said to have been constructed by Anand Prakash Agarwal, opposite party no.4. Further the shops shown on plot no.1 and corresponding photograph being 23, 24, 25, 26, 52, 53 and 54 have also been constructed by Anand Prakash Agarwal. Still worse on plot no.40 of the map with corresponding photograph being 43, 44, 45 and 46 a shopping Mall has also been constructed by Anand Prakash Agarwal. I have heard Sri R. B. Singhal, learned Senior Counsel, assisted by Sri Prashant Mathur, learned counsel appearing on behalf of the applicants and Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Vijit Saxena, learned counsel appearing on behalf of opposite party no.4. Sri R. B. Singhal, learned Senior Counsel, for the applicants made following submissions:
(i) Opposite party no.4 is guilty of contempt and should be punished.
(ii) All sale deeds executed in violation of the injunction order be cancelled.
(iii) Status of constructions as it stood on the date of injunction order should be restored, by removing the constructions made after the injunction order dated 13.04.1995.
(iv) Heavy costs be imposed on the opposite party no.4 and the applicant should be suitably compensated.
On the other hand Sri Shashi Nandan, learned Senior Counsel for the opposite parties raised the following two preliminary objections regarding maintainability of the contempt application:-
(i) Contempt application is not maintainable in view of Order 39 Rule 2-A of the CPC.
(ii) Contempt application is hit by Section 20 of the 1971 Act. Apart from the aforesaid preliminary objections he further raised the following arguments on merits :-
(i) Suit having been dismissed and the appeal abandoned the contempt application was filed with malafide intention.
(ii) Sale deeds were validly executed as the declaratory suit stood decreed in favour of the opposite parties and first appeal of Union of India had been dismissed therefore no contempt can be alleged with regard to execution of sale deeds.
(iii) No pleadings regarding alienation made in the affidavit filed in support of the contempt application, nor the interim injunction order had put any restrain on alienation as such charge relating to execution of sale deeds can not stand and as such the trial is vitiated.
(iv) Contempt application was bad for non-joinder of necessary parties.
Considering the nature of controversy and the submissions advanced it would be appropriate to first decide the preliminary objections raised by the opposite parties regarding maintainability of the contempt application. ORDER 39 Rule 2-A CP.C The first argument raised on behalf of the opposite parties is with regard to the maintainability of the Contempt application under Section 10/12 of the 1971 Act. The submission precisely is to the effect that the injunction order was passed in civil proceedings in a First Appeal From Order arising out of civil suit and the Code of Civil Procedure being fully applicable to the First Appeal From Order, applicants had adequate remedy of filing an application under Order 39 Rule 2A of the C.P.C for the alleged disobedience / violation of injunction order dated 13.4.1995. According to Sri Shashi Nandan, learned Senior Counsel the contempt application is liable to be dismissed on this ground. In support of his submission reliance has been placed upon a judgement of this Court in the case of Chhotey Lal Chaurasia Versus Rajesh Mishra reported in 1997 (2) JCLRE 247 (All). On the other hand Sri Singhal, learned Senior Advocate appearing for the applicant, submitted that if two remedies are open to the applicant, it is for the applicant to opt for the remedy. Sri Singhal further submits that an application under Section 10/12 of the Contempt of Courts Act is not barred where an application may otherwise be maintainable under Order 39 Rule 2A of the C.P.C. Opposite parties cannot compel the applicants to pursue a specific remedy. It is well settled principle of law that where parties have multiple remedies open to it, selection of remedy to be pursued is at the discretion and choice of the party initiating the proceedings until and unless there is a specific bar. The 1971 Act does not bar or prohibits initiating proceedings under section 10/12 of the said Act where the contempt alleged is of an order passed by the civil Court or by High Court in proceedings arising out of a civil suit. Under Section 10 of the 1971 Act the High Court is competent to initiate proceedings for contempt of orders passed by Courts subordinate to it or under its supervisory jurisdiction. In the present case the order of which contempt has been alleged was passed by the High Court. The judgement in the case of Chhotey Lal Chaurasia (supra) has no application to the present case as in the said case the order of which contempt was alleged was passed by the Civil Judge and not by the High Court. Even otherwise the said judgement does not debar the High Court from entertaining petition under Section 10/12 of the 1971 Act. Thus, this argument raised on behalf of the opposite parties fails. It is accordingly rejected. SECTION 20 of the Contempt of Courts Act, 1971.
The next argument raised on behalf of opposite parties is with regard to the bar contained in Section 20 of 1971 Act. Much emphasis has been laid by Sri Shashi Nandan, learned Senior Counsel appearing for opposite party on the point of limitation. Reference has been made to various notices issued by the Cantonment Board to different parties who had raised constructions. In each of these notices opposite party no.4 was a common factor. The notices were under various provisions of the 1924 Act and were issued in the year 1996 to 2000 (details given in the table referred to in the earlier part of this order). Based on these notices submission of Sri Shashi Nandan is that once the Cantonment Board was aware of the injunction order dated 13.4.1995 and it was also aware of its violation by not only the opposite party no.4 but also the purchasers to whom notices had been issued, the cause of action would accrue from the date of the knowledge i.e. 1996. The limitation for entertaining a contempt petition under Section 20 of the Contempt of Courts Act, 1971 is one year as provided under Section 20 thereof, which is reproduced below:-
20. Limitation for actions for contempt :- No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
According to learned Senior Counsel appearing for opposite parties once the Cantonment Board chose not to initiate contempt proceedings, within prescribed period of limitation, the present contempt proceedings initiated in 2001 after several years from the date when the cause of action arose i.e. 1996, would be clearly hit by Section 20 of 1971 Act and the only out come of this contempt application would be its dismissal. Reliance has been placed on the following two cases on this point:-
(i) Pallav Seth versus Custodian and others reported in (2001)7 SCC 549.
(ii) Islamuddin Versus Umesh Chandra Tiwari and another reported in 2009 (3) JCLR 287 (All).
Sri R. B. Singhal, learned Senior Counsel, appearing for the applicant in reply submits that where there is recurring cause of action, section 20 of the 1971 Act would not come into play so long there is a continuing violation. According to him the opposite party no.4 not only continued to raise various constructions but also continued to execute sale deeds in favour of 3rd parties in violation of the injunction order obtained in the appeal. He has referred to various documents in this regard. According to Sri Singhal constructions were continued to be raised till 2001 and even thereafter as such the contempt application cannot be said to be barred under Section 20 of the 1971 Act. He has placed reliance upon the following decision :-
(i) Ganpat Ram Raj Kumar Versus Kalu Ram & others reported in 1989 Supp(2) SCC 418.
Having considered the submissions, it may be noticed that raising of constructions is not a day's affair. It is a continuing process, it may take years to complete. If the High Court had restrained the appellants from raising any further constructions, on 13th April, 1995 disobedience would be constituted if any further constructions were raised after the said date may be after five years or 10 years or may be immediately after the date of the order. Cantonment Board in its affidavit filed in support of contempt application had clearly stated that opposite parties were continuously making unauthorised constructions and various reports in that regard were submitted by staff of Cantonment Board right up to the month of December, 2000 and they were placed on record. These reports had been submitted after spot inspection. The officials of Cantonment Board had submitted reports right from 1996 till 2000, which have been filed along with affidavit as Annexures A-III to A-IX details of which have already been recorded in earlier part of this order. Further complaint made to the police station concerned in December, 2000 regarding non compliance / disobedience of orders passed by the High Court regarding maintenance of status quo has been filed as Annexure no.XI. Photographs of the constructions were also filed as Annexure X. The officials of the Board in their deposition as PW I to PW IV have also supported the continuance of the constructions through out. In reply to affidavit filed in support of contempt application as also in reply to show cause notice against charges, opposite party no.4 has not denied raising of constructions. What has been submitted is that he would be more cautious in future and further that no deliberate or intentional act has been committed by the deponent. Aforesaid facts have been stated in paragraph 3 of affidavit of the opposite party no.4 filed along with the application dated 29.07.2007. In paragraph no.9 it is admitted that the subsequent purchasers had raised unauthorised constructions. From above facts it is evident that at the time of filing of contempt application or at least one year prior to filing of contempt application, the constructions were being raised. It therefore does not stand to reason that the application is barred by limitation. Learned counsel for the opposite party relied upon two decisions Islamuddin (supra) and Pallav Seth (Supra) in support of this objection. In the case of Islamuddin (supra) the question involved was as to whether provisions of the Limitation Act 1963 would be applicable to the contempt proceedings initiated after expiry of period of one year from the date of alleged contempt. The Division Bench of this Court held that Section 5 of the Limitation Act 1963 would have no application in such matters. The question involved in the present case is totally different. Further in the case of Pallav Seth (supra) the question involved was as to from which date the proceedings would be treated to have been initiated. Both the aforesaid cases do not relate to raising of constructions continuously for years and as such will have no application in the facts of the present case. Whereas in case of Ganpat Ram Raj Kumar (supra) relied upon by the learned counsel for the applicant, the Supreme Court has held that failure to give possession of the premises in compliance of Court orders would be a continuing wrong and hence limitation under Section 20 of the 1971 Act would not be applicable. In the present case constructions having been continuously raised upto December, 2000 as such the contempt application filed on 12th February, 2001 would be well within time and would not be hit by Section 20 of the Act. MERITS OF THE CONTEMPT :
Having dealt with the various objections raised by the opposite party no.4 regarding maintainability of the contempt application the Court now proceeds to deal with the merit of the matter.
First of all it is to be considered as to whether opposite party no.4 had knowledge of the injunction order dated 13th April, 1995. This question does not require any discussion in as much as the FAFO filed by Smt. Pushpa Devi, Chandra Prakash Jain and Vijay Prakash Jain was through their attorney Sri Anand Prakash Agarwal (opposite party no.4) to this contempt application. The vakalatnama had been signed by Anand Prakash Agarwal as attorney of the three appellants. Thus, Anand Prakash Agarwal opposite party no.4 had knowledge of the order dated 13th April, 1995 passed by the Division Bench of this Court in the FAFO which had been filed by him.
DISMISSAL OF THE SUIT AS WITHDRAWN AND ABANDONMENT OF APPEAL :
Great emphasis has been laid by Sri Shashi Nandan, learned Senior Counsel appearing for opposite party no.4 on the fact that once the suit for injunction i.e. Original Suit No.581 of 1994 had itself been dismissed as withdrawn on 30.11.2000 and an application to dismiss the appeal i.e. F.A.F.O No.298 of 1995 filed on 29th January, 2001 prior to the filing of the present contempt application, the injunction order dated 13.04.1995 can no longer be said to be in existence and therefore there could not have been any case of contempt. The opposite parties having abandoned the appeal prior to the filing of the contempt application, the Cantonment Board could not maintain the contempt application.
The above argument has no legs to stand. An interim order passed in a case is valid, existing and operative so long as the case is pending until and unless such order is vacated / withdrawn / modified / discharged / not extended by specific order or the case itself is finally decided. In the present case none of the above eventualities took place. Mere filing of an application to dismiss the appeal cannot take away the effect of the interim order dated 13.04.1995. In fact it was part of the sinister design of the appellants (opposite parties) to file the application for dismissal on the one hand and to keep the appeal pending on the other hand as would be clear from the following facts.
Opposite parties filed the appeal and got the injunction order dated 13.04.1995. The order dated 13.04.1995 was in three parts (i) directing parties to maintain status quo with regard to the Bungalow, (ii) restraining the appellants therein from raising constructions and (iii) restraining the respondent Board from demolishing the constructions. As the constructions being raised by the appellants (opposite parties) were in violation of the Cantonment laws and liable to be demolished they wanted the 3rd part of the injunction to continue so that the Board would not be able to demolish. The Officers and other staff of the Board being government servants would not dare to violate the order of the High Court, which was a blessing to the appellants and other vendees to continue with their constructions in full swing violating the injunction with impunity and complete disregard. This is one reason why the appellants (opposite parties) did not prosecute their application to dismiss the appeal as withdrawn.
There was further mischief attached to the inaction of the opposite parties in not getting the appeal dismissed. Throughout from 1994 till 2005 sale deeds of smaller plots were being executed by Anand Prakash Agarwal (opposite party no.4). The vendees also started raising constructions over the land purchased by them. Technically there was no injunction operating against the vendees as they were not parties to the appeal but the injunction restraining the Board from demolishing any constructions stopped it from carrying out demolition activity with respect to the constructions over the land and building of the Bungalow in question.
The order of status quo was projected by the opposite parties as if it restrained the Board from in any manner interfering with the Bungalow. On the other hand the opposite party no.4 and his vendees continued to execute sale deeds in dozens and raise new constructions over the land purchased. The opposite party no.4 and the vendees themselves kept the Board and its officials on tenter hooks of not touching them in the garb of the injunction order but on the other hand themselves continued to violate the same extensively.
There is one more aspect which may be recorded. It has been held by the Apex Court in the case of Tayabbhai M. Bagasarwalla and anothers Versus Hind Rubber Industries Pvt. Ltd. and others reported in (1997) 3 Supreme Court Cases 443 that where interim order had been passed by the Court while the decision on the question of jurisdiction was pending and ultimately it was held that Court had no jurisdiction, violation of such interim order would still be punishable. Further a learned Single Judge of this Court in the case of Rakesh Singhal and another Vs. Vth A.D.J, Bullandshahar and others reported in (1989)2 AWC 1360 has also taken a similar view. Thus, in the present case even if the appeal had been dismissed subsequently but during pendency of the appeal and existence of the interim order the opposite parties had violated the same, they would still be liable to be tried in the contempt proceedings.
EFFECT OF DECREE OF DECLARATION BY CIVIL COURT:
Sri Shashi Nandan, learned Senior Advocate, appearing for the opposite party no.4 submits that the appellant Smt. Pushpa Devi and her sons have already been declared as the owner in possession of the land over which Bungalow no.210-B Western Road is situate. He also submits that the appeal filed against the decree of the Trial Court has also been dismissed. The second appeal filed by the Union of India is pending before this Court. In such circumstances it is submitted that where two courts have already held that the title of the appellants Pushpa Devi and her sons was perfect, thus they or their attorney had a valid right to transfer their property, any construction raised over such property by the owners or by their transferees cannot be said to be illegal or unauthorised and therefore this Court may not compel the opposite party no.4 from removing the constructions raised by him after the order dated 13.04.1995 during the pendency of the appeal (FAFO).
This argument apparently cannot be accepted and does not help the opposite party in any manner in the present contempt proceedings. In the contempt proceedings the Court is not going to decide the question of title, what is to be seen is as to whether there is violation of injunction order dated 13.04.1995 passed by the Division Bench of this Court. If there is violation then the same has to be dealt with in accordance with law and the wrong doer howsoever harsh the consequences may be will have to purge the wrong and further face adequate punishment. The declaration in favour of the opposite parties have no link, relevance or connection to this contempt proceedings. The contempt Court is examining the alleged disobedience of the injunction order dated 13.04.1995 passed in FAFO No. 298 of 1995. Even if there had been a clear title in the opposite parties but if they are found violating an order of injunction of status quo and restraining them from raising constructions they could always be tried in contempt proceedings.
NO PLEADINGS REGARDING EXECUTION OF SALE DEEDS :
The next argument advanced is that there was no pleading in the contempt petition and the affidavit in support thereof with regard to alienation / transfer by way of sale deeds of the land in dispute as such the charge framed against the opposite party no.4 cannot be said to be justified. Even the injunction order of which violation is alleged does not refer to any injunction with regard to alienation or transfer. It only refers to raising of construction and demolition of constructions. In such facts it has been submitted that the charge as framed cannot be sustained.
In reply to the aforesaid submissions Sri Singhal, learned Senior Counsel for the applicant, submits that in the order dated 13th April, 1995 it was clearly provided " ............Meanwhile, parties are directed to maintain status quo with regard to Bungalow No.210-B, Western Road, Meerut Cantt. ............". Relying upon the aforesaid part of the order it is the case of the applicant that maintenance of status quo with regard to any immovable property would also mean status of its title and possession. The submission is that the order of status quo was a general order and not confined either to the existing constructions or with regard to the title and possession. It is also urged on behalf of the applicant that along with execution of sale deeds the possession of the land covered by the sale deed was also transferred to the vendees. Further the vendees have raised constructions over the land purchased by them. This clearly would be violative of the order of status quo. Thus it would squarely cover status with regard to the title, possession as also the constructions.
Reference in this regard may be had to the following decision of Supreme Court in the case of Navalshankar Ishwar Lal Dave and another Versus State of Gujarat and others reported in AIR 1994 SC 1496.
In the present case the opposite parties are being tried for having violated the injunction obtained by them in their appeal. These are proceedings for contempt of orders passed by this Court. The first part of the injunction order is a general order of status quo regarding the immovable property. The second part is an injunction against appellants from raising any further constructions. Whereas the third part is an injunction restraining the respondents in the appeal from demolishing any constructions. Reverting to the first part of the injunction order an order of status quo would include the status of the title as also possession and therefore creation of third party rights and transferring of possession would amount to violation of the status quo order.
The opposite parties have admitted that sale deeds have been executed; third party rights have been created and possession transferred after the injunction order dated 13.04.1995. Contempt proceedings are not adversarial in nature. It is between the Court and the contemner. The contempt is to be tested on the basis of material placed on record. It is an action to be taken by the Court where it is to be seen as to whether the parties have violated / disobeyed / not complied with the orders of the Court. Even if the applicant did not allege transfer by way of sale deeds as a violation once it comes in the notice of the Court from the record, it cannot be pleaded as a defence that the pleadings or averments were lacking. The charge as framed thus cannot be faulted with.
NON JOINDER OF NECESSARY PARTIES.
The next argument raised on behalf of the opposite party relates to non-joinder of necessary parties, if at all any violation could be alleged against the purchasers who had raised the constructions. According to learned Senior Counsel for the opposite party, the Board was fully aware of the details of the persons who were raising the constructions as notice had been issued to them under the provisions of the 1924 Act requiring them to stop the constructions. These, notices are part of the record but despite the same the Board has chosen not to implead them as opposite party.
The non joinder of necessary party as alleged by the opposite party is not a fatal defect. It is not in issue that opposite party no.4 had been raising constructions despite the injunction order dated 13th April, 1995 and even immediately prior to the filing of the contempt application he was raising constructions. The matter relating to the offenders who have not been impleaded cannot in any manner extend any protection or advantage to the opposite party no.4. Whether relief can be granted to the applicants as against the purchasers would be examined at a later stage in this judgement. Thus the plea of non-joinder of necessary parties cannot be sustained and is accordingly rejected.
MERITS OF THE MATTER :
Before entering into the merits of the reliefs / directions claimed by the applicant it would be worth while to record certain facts relating to the status of the property in question.
The Bungalow in question is admittedly situate within the limits of Meerut Cantonment . From the material placed on record in the form of extract from the General Land Register of Meerut Cantonment, the Bungalow in question is situate over survey No. 3130 and is shown to be belonging to B-3 Class, its management is under the Military Estate Officer; the landlord is the Government of India; the occupancy rights are held by Smt. Pushpa Devi and two sons (opposite party nos. 1 to 3); the nature of rights in the occupant is of old grant. Sufficient material has been placed by the Cantonment Board, to show that the aforesaid facts are admitted to the occupant, in the form of various correspondence which are on record. The building and the land comprising the Bungalow in question is situate is governed by the G.G.O No.179 dated 12.09.1836. The G.G.O has been held to have statutory force in large number of cases to name of few (1) Raj Singh Vs. Union of India reported in AIR 1973 Delhi 169 (DB) (2) Mohan Agarwal Vs. Union of India and others reported in AIR 1979 Allahabad 170 (FB) (3) Chief Executive Officer Vs. Surendra Kumar Vakil and others reported in 1999 (3) SCC 555. Under the said GGO, there is a statutory restriction on raising of any construction without the prior permission of the Military Estate Officer or the Cantonment Board as the case may be and secondly it prohibits sale of any part of lease land without prior permission of the Military Estate Officers or the Union of India as the case may be.
The importance of the land situate within the limits of Cantonment has to be given due importance and its basic structure cannot be changed without prior permission of the competent authority under the relevant Act, Rules and Bye-laws.
The occupant, whether authorised or unauthorised and constructions whether authorised and unauthorised are all governed by the provisions contained in the Cantonment Act 1924 and now under the Cantonment Act, 2006. In a number of cases the provisions of the Public Premises Eviction of Unauthorized Occupants) Act, 1971 has also been made applicable to any kind of unauthorised occupation or construction within the limits of the Cantonment.
Cantonment Board, Meerut had given notices to all offenders who were raising unauthorised constructions over part of the Bungalow in question. Dozens of these notices have been placed on record after serving its copies on counsel for the opposite party no.4 in December, 2012. Even earlier along with the affidavit filed in support of the contempt application, applicants placed certain notices given to the offenders. It would also be worth while to mention here that public notices had been published in daily newspapers having wide circulation in the city of Meerut in the month of June, 1994 warning the general public from not entering into any agreement / contract or from raising any constructions with regard to the land comprising in Bungalow in question. These three notices are also on record along with an affidavit filed by opposite party no.4 on 16.04.2010. These public notices were issued soon after the opposite party started executing the sale deed and started raising unauthorised constructions. Thus the general public of Meerut city had due knowledge of the warning given by the Cantonment Board even before filing of the civil suit.
POWERS OF THE CONTEMPT COURT:
In order to do complete justice between the parties and to ensure that the contemner or his beneficiaries do not derive any advantage by committing contempt, it has been held in several cases that contempt Court may issue directions which may be referable to Article 226 and 227 of the Constitution of India. Reference may be made to the following decisions :
(1) Special Leave Petition (Criminal ) No.685 of 2004 (Smt. Shail Vs Manoj Kumar and others decided on 29.3.2004.
(2) Surya Dev Rai Vs. Ram Chandra reported in AIR 2003 S.C 3044.
(3) Vidya Charan Shukla Vs. Tamil Nadu Olympic Association and others reported in AIR 1991 Madras 323.
(4) Sukhdev Singh Vs. Hon'ble the Chief Justice Teja Singh reported in AIR 1954 S.C. 186.
(5) Smt. Abida Begum Vs. R.C.E.O reported in AIR 1959 Alld. 657.
CANCELLATION OF THE SALE DEEDS:
Sri R. B. Singhal, learned Senior Advocate, appearing for the applicant submits that the court of contempt is well equipped and has wide powers to get a blatant wrong corrected. A party to the proceedings who is knowingly and deliberately flouting an injunction and in that process if some third party rights are created the Contempt Court without calling upon the third party may compel the contemnor to purge the violation and the rights if any of the third party would be settled between the contemnor and the third party. He, thus, submits that opposite party no.4 acting upon the power of attorney of opposite party nos.1 to 3, was continuously executing sale deeds and permitting the third parties to raise constructions. It was his duty to inform the third parties about the pendency of the litigation and the injunction order dated 13.04.1995 passed by this Court. The third parties may have acquired some rights through opposite party no.4 but they would only be stepping into his shoes and therefore would be bound by the orders passed against opposite party no.4. Sri Singhal has placed reliance upon following decisions in support of his submissions:-
(i) Delhi Development Authority Versus Skipper Construction Co.(P) Ltd. reported in (1996)2 SCC 622.
(ii) T. N. Godavarman Thirumulpad through the Amicus Curiae Versus Ashok Khot and another reported in JT 2006(5) SC 492.
(iii) All Bengal Excise Licensees Association Versus Raghabendra Singh and others reported in (2007) 11 SCC 374.
(iv) C Elumalai and others Versus A.G.L Irudayaraj and another reported in (2009) 4 SCC 213.
In reply Sri Shashi Nandan, learned Senior Counsel appearing for opposite party no.4 has raised the same argument as has been discussed earlier that there was no averment in the affidavit filed along with contempt application that any sale deed has been executed in violation of the injunction order and secondly that there was no injunction relating to alienation / transfer / creation of 3rd party rights. In earlier part of this order the Court has already rejected the said pleas raised by the opposite party no.4. It has already been held that an order of status quo covered within its ambit an order restraining the parties from alienating / creating third party rights and also from transferring possession. A sale deed executed in violation of an injunction order is a nullity. It is a document which does not confer any rights on the third party / vendees. Opposite party no.4 was well aware of the injunction order dated 13.04.1995 and all the sale deeds executed after 13.04.1995 by opposite party no.4 would be void not conferring any rights in the third party / vendees. In Jehal Tanti and others Vs. Nageshwar Singh (D) thr. LR's reported in AIR 2013 Supreme Court 2235. The Apex Court referring to Section 23 of the Indian Contract Act 1892 has held that every agreement executed with an object or consideration which is unlawful is void. Para 13 of the judgement as per the report reads as follows :-
" 13. We may also notice Section 23 of the Indian Contract Act, 1872, which lays down that the consideration or object of an agreement is lawful,unless it is forbidden by law; or is of such a nature that, if permitted,it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regard sit as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful and every agreement executed with such an object or consideration which is unlawful is void. Since the sale deed was executed in favour of respondent No.1 in the teeth of the order of injunction passed by the trial Court, the same appears to be unlawful."
Similarly in the case of Vidur Impex and Traders Pvt. Ltd. and others reported in AIR 2012 Supreme Court 2925 while dealing with an application of impleadment filed by the purchasers through sale deeds executed in violation of an injunction it held that the agreement for sale did not have any legal sanctity and such transactions did not confer any right upon the vendees and on these grounds rejected their plea for impleadment. Relevant extract as contained in para 37 of the report is reproduced below :-
"37...........The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when respondent No.2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained respondent No.2 from alienating the suit property or creating third party interest. To put it differently, the agreements for sale and the sale deeds executed by respondent No.2 in favour of the appellants did not have any legal sanctity. The status of the agreement for sale executed by the appellants in favour of Bhagwati Developers was no different. These transactions did not confer any right upon the appellants or Bhagwati Developers........."
In the case of Smt. Savitri Devi Vs. Civil Judge (Senior Division), Gorakhpur and others reported in AIR 2003 Allahabad 321, a learned Single Judge of this Court after considering the legal propositions in detail has taken a similar view that any action taken in disobedience of order passed by this Court would be illegal and subsequent action would be nullity. Paras 10, 11 and 12 of the report are reproduced below :
10. Admittedly, there was an order dated 18.8.1992 for both the parties not to alienate any part of the property in dispute. Respondent no.3 has executed two sale deeds in favour of respondent Nos.4 to 6. It is settled legal proposition that sale deeds so executed are a nullity as having being executed in disobedience of the interim order of the Court. In Mulraj V. Murthi Raghunathji Maharaj, AIR 1967 SC 1386 the Hon'ble Supreme Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal, subsequent action would be a nullity.
11. Similar view has been reiterated in Surajit Singh v. Harbans Singh (1995) 6 SCC 50; (AIR 1996 SC 135), Govt. of A.P. V. Gudepu Salloo (2000)4 SCC 625 : (AIR 2000 SC 2297), Hansraj Tirathram v. The Administrator, Municipality Jammu, AIR 1963 J & K 18.
12. Therefore, there is no doubt that the alleged sale deeds are nullity, meaning thereby non est, unenforceable and inexecutable and deserve to be ignored.
Thus, there is little scope for the transactions of sale made after the passing of the order of injunction dated 13.04.1995 to be saved in law. All such sale deeds executed after 13.04.1995 i.e. the date of the injunction order would be unlawful and void, not conferring any rights on the purchasers / vendees. The next question which arises is as to whether in contempt proceedings Contempt Court can declare the sale deeds to be unlawful and void. In view of the discussion recorded in the earlier part of this order, specific findings have been recorded to the effect that the sale deeds were being regularly executed by opposite party no.4 in favour of third party / vendees in gross violation of injunction order dated 13.04.1995. The Apex Court in the case of Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and another reported in (1996) 4 Supreme Court Cases 622 has held that where act is done in violation of an order of stay or injunction it is duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. It further observed that the principle that a contemnor ought not to be permitted to enjoy and / or keep the fruits of contempt is well settled. Paras 17, 18, 19 and 20 of the report are reproduced below:
17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd. Idris v. R.J. Babuji [1985 (1) S.C.R.598], this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions to in additing to punishing the petitioners for contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach [of undertaking]".
18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn [1985(1)All.E.R. 211], Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they ere liable to penalties for contempt of court for doing what they did,nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S. Suppiah & Ors. [A.I.R.1975 Madras 270] and Sujit Pal v. Prabir Kumar Sun [A.I.R.1986 Calcutta 220]. In Century Flour Mill Limited, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right an not allow the perpetuation of the wrong-doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to be exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognize that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. In Suraj Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. In view of the above discussion, considering the nature of allegations and position in law the sale deeds executed by opposite party no.4, after 13.4.1995 in violation of the injunction order and in respect of the property in dispute deserve to be declared null and void and are accordingly so declared. REMOVAL OF CONSTRUCTIONS Sri R. B. Singhal, learned Senior Counsel appearing for the applicant, has submitted that all the constructions raised over any part of the land of the Bungalow in question is unauthorised and illegal and is further in gross violation of the injunction granted by this Court on 13.04.1995. He further submits that not only the opposite party no.4 raised three constructions as already recorded above but even the third party who had got sale deeds executed in their favour raised the constructions despite public notices, individual notices and in collusion with the opposite party no.4. He further submits that even the third party / vendees should not be spared and all the constructions should be restored as they existed on 13.4.1995. In this regard he has placed reliance upon the decisions of the Apex Court in the case DDA Vs. Skipper Constructions Co. (P) Ltd (Supra.) The same principles will apply in restoring the position as it existed on the date of the injunction. In reply it is submitted by Sri Shashi Nandan, learned Senior Counsel for opposite party no.4, that relief claimed by applicants with regard to demolition of constructions so as to maintain status quo as existing on date of the injunction order, would be in gross violation of principle of natural justice and fair play. An order of demolition has serious civil consequences and therefore, cannot be passed until and unless opportunity is given to the party raising constructions. According to learned counsel for opposite party the purchasers who raised constructions have made the same over land purchased by them and they would be having a valid right to raise constructions subject to the bye laws that may have been framed by the Cantonment Board. Even if such constructions are in violation of Bye Laws they cannot be demolished except in accordance with law. The 1924 Act provides for demolition of unauthorised or illegal constructions by drawing appropriate proceedings, giving show cause notice, opportunity to lead evidence and thereafter by passing appropriate orders. It was for the Cantonment Board to initiate such proceedings. Sri Shashi Nandan further submitted that apparently the Cantonment Board issued orders for demolition in the year 1994 to 1996 against which appeals were filed which were dismissed. However, later writ petitions were filed in which interim orders were granted at the time of filing of the writ petitions. Further the writ Court vide order dated 03.04.2012 allowed a bunch of 13 writ petitions filed against orders of demolition. Thereafter it was for the Board to initiate fresh proceedings for demolition of the constructions alleged to have been made unauthorisedly without taking prior sanction of the Board or in violation of Bye Laws. In contempt proceedings without impleading persons who have raised the constructions an order of demolition may not be passed and all the more when there is a specific procedure provided under the 1924 Act or the subsequent Act of 2006 for removal of illegal and unauthorised constructions. Considered the submissions on behalf of the parties. On the above issue what is borne out from the record is that opposite party no.4 has himself constructed a residential house, dozens of shops and a shopping Mall over separate plots carved out of the land of the Bungalow in question. The rest of the houses and the constructions have been raised by the third parties, who are not parties to the contempt proceedings or to the civil proceedings giving rise to the First Appeal From Order. From the law as laid down by the Supreme Court in the aforementioned cases, it is apparent and evident that the contempt Court can direct the parties to restore the status as it existed on the date of the injunction order or on the date of the communication of the injunction order to the aggrieved party. In the present case opposite party no.4 had himself filed the appeal before the High Court and had obtained the injunction order as such he was fully aware that after the order dated 13.04.1995 no further constructions could be raised. It has already come on record that opposite party no.1 Smt. Pushpa Devi died long time ago during pendency of the contempt application. Opposite parties no. 2 and 3 have already executed the power of attorney in favour of opposite party no.4 before filing of contempt application. Thus, it is opposite party no.4 who had general power of attorney from opposite party nos. 1 to 3 and he on their behalf had been selling the properties to different persons on the strength of the deed of attorney. In addition opposite party no.4 himself ventured into raising constructions on several plots in blatant defiance of the interim injunction order dated 13.04.1995 of which he had due knowledge. Further the other constructions raised by the purchasers was also in violation of the injunction order and also in violation of the relevant laws applicable over land situate in the Cantonment area. Public notices had been published in the newspapers and notices were given to the parties raising constructions as such they also had knowledge of the illegal activity of constructions being carried out by them. Even otherwise if they did not have specific service of the injunction order once it is an admitted case that constructions were in blatant violation of the laws applicable to land within Cantonment limits then such construction cannot be allowed to remain. Further the law on the point is very clear that the status as on the date of the injunction order is to be restored and maintained. All acts of the contemnor in violation of the injunction order have to be undone. In that process all the constructions raised after 13.04.1995 are to be removed. The next question to be considered is whether Anand Prakash Agarwal and others raised any construction in violation of the injunction order granted by the Division Bench on 13.4.1995. The affidavit filed in support of the contempt application duly sworn by Sri R. Zameer, Drafts- man in the Cantonment Board, Meerut Cantonment clearly stated that the constructions were being raised even at the time of filing of the contempt application. Along with the affidavit were annexed the notices / reports right from 1996 till 2000 prepared by the staff of the Cantonment Board after due inspection of the site. Further dozens of notices have been placed on record in December, 2012 which were issued by the Board to the parties raising construction without sanction unauthorisedly. Thus also such constructions raised after 13.04.1995 need to be removed and the status as on the said date deserves to be maintained. It is ordered accordingly, Opposite party no.4 and other parties who have raised constructions in violation of the injunction order are directed to remove the same. Cantonment Board, Meerut shall issue individual notice to the occupants / offenders who have raised constructions over any part of the Bungalow in question after 13.04.1995 to remove all such constructions within two months failing which Cantonment Board, Meerut will remove the same at the expense of the parties who had raised the constructions. CONVICTION AND SENTENCE OR OPPOSITE PARTY NO.4.
Reports clearly mentioned not only names of third party who were raising constructions but also names of the three appellants and Anand Prakash Agarwal - opposite party no.4. In some of the reports there are no names of any third party but only that of the three appellants and Anand Prakash Agarwal - opposite party no.4. These reports have been annexed as Annexure A-III to Annexure A-IX to the affidavit filed in support of the contempt application. Annexure A-III refers to one Laxmi Devi, Annexure A-IV refers to Smt. Kamlesh, Annexure A-V refers to Smt. Krishna Agarwal, in addition to the appellant / Anand Prakash Agarwal. However, Annexure nos. A - VI to A-IX refer only to the appellants and Anand Prakash Agarwal as the offenders of raising unauthorised constructions. These four reports are dated 29.9.1999, 29.9.1999, 11.12.2000 and 14.12.2000 respectively. These report also mentions the dates on which the constructions were started / restarted which also are of the year 1999-2000. The officials of the Cantonment Board, Meerut examined as PW I to PW IV have stated in unequivocal terms that despite notices the constructions were being raised at the relevant time. Photographs annexed with the affidavit as Annexure A-X also go to show that large scale construction activities were under taken at the time contempt application was filed. There is complaint made to the Station House Officer of the Police Station, Sadar Bazar, Meerut Cantonment, District Meerut dated 21.12.2000, which also refers to constructions being raised unauthorisedly by Anand Prakash Agarwal and others. The report submitted by the Advocate Commissioner also refers to and gives details of the constructions raised by Anand Prakash Agarwal, opposite party no.4. In his reply to the show cause notice given after the charge was framed, Anand Prakash Agarwal has nowhere denied raising of constructions by him. He has only sought to claim apology by stating he would be more cautious in future. He has also tried to shift the blame on third parties who were raising constructions by alleging that he could not be held responsible for any constructions being raised by third parties. From the above discussion it is apparent that Anand Prakash Agarwal was more than guilty of deliberately and knowingly defying the injunction order by raising constructions at least over those plots which had not been transferred to any third party but apparently had been taken by him in his own name or his family members. Brief description of the 58 sales deeds is given in the chart described in the earlier part of this order. At least 40 sale deeds were executed during the period after 13.04.1995 till the year 2005. They were all subsequent to the grant of the injunction order. A perusal of the sale deeds on record show that they were all executed by opposite party no.4 as attorney of the other three opposite parties. Thus, Anand Prakash Agarwal / opposite party no.4 was raising constructions and had executed the sale deeds, transferred possession in favour of the purchasers in gross defiance of the injunction order which was operative on those dates, despite having due knowledge of the injunction order. He is accordingly held guilty of the charge and convicted accordingly. Dated : 29.01.2014 SS Opposite party no.4 is present at the time of delivering of the order holding him guilty of the charge of having committed contempt of Court. Upon being given opportunity of addressing on the question of awarding of sentence Sri Vijit Saxena, learned counsel for opposite party no.4 has made following submissions :
(i) Suit No.581 of 1994 was with regard to construction of shops which were being raised at that time therefore that alone could have been subject matter of consideration. Any other construction raised by the subsequent purchasers cannot be treated as a disobedience or violation by the opposite party no.4.
(ii) He further submits that the opposite party no.4 had acted upon the interpretation of the injunction order dated 13.4.1995, which was also based on legal advise. There was no injunction for executing sale deeds or restraining third parties from raising constructions. On that interpretation it could not be alleged by the applicant that there was any wilful disobedience on the part of opposite party no.4.
(iii) Further reliance has been placed upon a judgement of the Apex Court in the case of Sahdeo alias Sahdeo Singh Vs. State of U.P. and others reported in (2010)3 SCC 705. This judgement has been relied upon for the proposition that if there has been non compliance on account of bona fide mistake, inadvertence or misunderstanding of the order or purport of order there could not be any contempt. Reference has been made in particular to paragraphs 15 and 17 of the report.
(iv) It is also submitted that as the opposite party no.4 has already submitted an unconditional apology, which the Court may accept and not impose any sentence or fine.
(v) It has also been submitted that even in cases where the Court comes to the conclusion that contempt has been committed then the sentence of fine is substantial punishment and that is the general rule whereas awarding sentence of simple imprisonment is an exception to the rule. Therefore, the Court may not pass any sentence of imprisonment but may confine it to fine only.
On the other hand it has been submitted by the counsel for the applicants that opposite party no.4 does not deserve any leniency or sympathy. He has knowingly violated the injunction order by executing dozens of sale deeds and raising massive constructions. He has been dishonest. Further he connived to get dozens of buildings erected within the Cantonment area. Considered the submissions.
With regard to submissions (i) and (ii) elaborate discussion has already been made in the earlier part of the order holding that the order of injunction dated 13.04.1995 was very clear and specific, it related to the entire land comprised in the bungalow in question and opposite party no.4 had wilfully and knowingly flouted the same. Thus, the said submissions (i) and (ii) are rejected. With regard to reliance on the judgement in the case of Sahdeo alias Sahdeo Singh (Supra) {submission no.(iii)} the same does not help the opposite party no.4 as the present case is not of any contempt on account of bonafie mistake or inadvertence. On the other hand there is already a finding of wilful disobedience. With regard to the submission no. (iv) and (v) reference may be made to the proviso and the explanation to Section 12(1) and also to Section 12 (3) of the Contempts of Courts Act 1971. Apology has been tendered but the Court is not inclined to accept the same as it is only an eye wash. Opposite party no.4 has actively violated the injunction order obtained by him. Further the conduct of the opposite no.4 as has already been recorded in this order does not permit the Court to leave him only with imposition of fine. Further the opposite party no.4 is not entitled to benefit of Section 13(a) of the Contempt of Courts Act, 1971 on account of his conduct through out the proceedings and the manner in which he violated the injunction order and further encouraged third parties to violate the injunction order. Anand Prakash Agarwal (opposite party no.4) does not deserve any leniency or sympathy from the Court. Punishment for Contempt of Court is provided in Section 12 of the Contempt of Court Act, 1971. The maximum sentence provided is simple imprisonment for term which may extend to six months or with fine which may extend to Rupees Two thousand only. Accordingly Anand Prakash Agarwal (opposite party no.4) who is present in Court is sentenced to six months simple imprisonment and fine of Rs.Two thousand only, to be deposited within 15 days. It is further clarified that the Court is not imposing exemplary costs for the reason that the sale deeds have been declared as null and void and further direction has been issued for removal of the constructions. At this stage Sri Vijit Saxena, learned counsel for opposite party no.4 has prayed for suspending the sentence for a reasonable period to enable the opposite party no.4 to file an appeal . Considering the facts and circumstances of the case, the sentence awarded to opposite party no.4 shall remain suspended for a period of one month from today. The opposite party no.4 shall surrender before the Chief Judicial Magistrate, Meerut on 1st March, 2014, whereupon he shall be taken into custody to serve out the sentence. CAUTIONS TO THE CANTONMENT BOARD:
Before closing the Court would like to record that the Cantonment Board had utterly failed to protect its property by not taking the steps and appropriate action which it should have taken under the provisions of the Cantonment Act, 1924 for dispossession and demolition of not only the opposite parties but all other vendees and trespassers who had entered into possession over parts of the land in dispute. It also failed to prosecute the contempt application in a manner reasonably expected by an institution of the level of Cantonment Board when it had all the infrastructure and the support of the State / Central Government in carrying out its objective. The Cantonment Board should be more vigilant and should not only act strictly but also timely in accordance to law. Once party is allowed to violate the law and continue violating the same it may result into tress-pass, illegal constructions, obstructions to public way and violation of the bye- laws governing the Cantonment areas. It indicates the weakness of the Cantonment Board being an extended organ of the Defence Ministry in permitting tress-pass and illegal activities within the Cantonment area. The Central Government must take notice and issue appropriate directions to the Cantonment Boards and whenever it is found that Board has been lacking in timely action and discharging its duties of supervision and maintenance of the Cantonment area in accordance to law, the Central Government / Ministry of Defence must take appropriate action against the erring officials so that further violations of the trespass is checked and controlled.
A copy of this order be forwarded to the Secretary, Ministry of Defence, Government of India, New Delhi for necessary action.
The records be consigned.
Order Date :- 29th January, 2014 SS