Mohd Idris vs M.C.D & Ors
2011 Latest Caselaw 2643 Del

11.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CONT.CAS(C) 431/2008

%                                  Judgment Delivered on: 18.05.2011

MOHD IDRIS                                                 ..... Petitioner
                       Through :   Mr. Rajat Aneja, Adv.

                       versus

M.C.D & ORS                                                ..... Respondents
                       Through :   Mr. O.P. Saxena, Adv.

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

           1. Whether the Reporters of local papers may be allowed to see
              the judgment?
           2. To be referred to Reporter or not?
           3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J. (ORAL)

1. Learned counsel for the parties submit that they do not wish to file

any further pleadings and the contempt petition may be set down

for final hearing and disposal.

2. Mr. O.P. Saxena, learned counsel for the respondent MCD, submits

that name of Mr. Shailendra Dhawan, Executive Engineer, should

be substituted in place of respondent no.2.

3. Accordingly, oral request of counsel for the respondent MCD is

allowed. Mr. Shailendra Dhawan is substituted in place of Sh. B.S.

Tolia, as respondent no.2. The petitioner shall file an amended

memo of parties before the next date of hearing.

4. With the consent of counsel for the parties, contempt petition is set

down for final hearing and disposal.

5. In this case, notice was issued on 31.7.2008. Respondents sought

time to file reply on 12.12.2008. Reply has been filed by

respondents no.3 and 4. Petitioner sought time to file rejoinder on

18.5.2009. Thereafter the matter was adjourned on three occasions

either at request of counsel for the petitioner or counsel for the

respondents. Thereafter on 21.7.2010 time was granted to the

respondent MCD to file additional reply, however, no additional

reply was filed till 8.10.2010. The Court had directed respondent

no.2 to remain present in Court on the next date of hearing, which

was 21.11.2010, on which date, a copy of the reply was handed

over to counsel for the petitioner. A status report dated 24.11.2010

was also filed by the MCD. The matter was adjourned to

25.11.2010. It was made clear that no further adjournment will be

granted as the matter was pending for the past two years. On

17.1.2010, the following order was passed:

"+ CONT.CAS(C)NO.431/2008

An affidavit of Mr.Shailender Dania (Executive Engineer Construction Division- II, Delhi Urban Shelter Improvement Board, Inderlok), has been filed on 15.01.2011 and a copy thereof has been handed over to counsel for the petitioner in court today. On the last date of hearing i.e. on 25.11.2010, this court while noticing in its order the submission of Mr.Rajat Aneja, counsel for the petitioner that the reply filed by the MCD did not address the basic issue in the contempt proceedings, granted liberty to the respondent to file an additional affidavit. The court also observed that no further adjournment would be granted to the respondent, as the matter has been pending for more than two and a half years.

In pursuance of this order, the present affidavit of Mr.Shailender Dania, has been filed. The respondent has filed the affidavit only on 15.01.2011, knowing fully well that either the affidavit would not come on record or time would be taken by the petitioner to look into the matter.

Counsel for the petitioner submits that costs as directed by this court vide its order dated 21.07.2010, has not been paid. In case the previous costs have not been paid, the same shall be paid within two weeks from today.

The matter is being adjourned only on account of inaction on the part of the respondent. Subject to payment of further costs of `10,000/- to be paid by respondent no.2 to the petitioner for today's adjournment within two weeks, adjourned to 07.04.2011."

6. The necessary facts, to be noticed for disposal of this contempt

petition, are that petitioner had filed W.P.(C)No.18703/2005

seeking direction to the respondent MCD to carry out repairs in the

property bearing no.7323-24, XIV, Galli Gurudwarewali, Qasabpura,

Sadar Bazar, Delhi, and also an order restraining respondents no.4

and 5 from causing any obstruction or interference in the aforesaid

repair process. The order dated 24.7.2007 reads as under:

               "                                   ORDER
                                                   24.07.2007

1. The prayer in this writ petition is for a direction to the Municipal Corporation of Delhi ('MCD') to carry out repairs in the property bearing No.7323-24/XIV, Gali Gurudwara Wali Qasabpura, Sadar Bazar, Delhi and inter alia to restrain the respondents no. 4 and 5 from causing any obstruction or interference in the aforesaid repair process.

2. A report was filed in this Court on 12.10.2006 by the Deputy Director (Property), Slum and J.J. Department, MCD stating the property in question requires immediate repairs as it was in a dangerous condition and further that the occupants of the property were obstructing the repair work.

3. At the previous date of hearing i.e. 6.7.2007, learned counsel for the respondents 4 and 5 stated that his clients had no objection to the repair work being carried out provided that after the repairs are carried out the parties should be restored to the position in respect of their possession of different portions of the property. It was also stated by learned counsel for the petitioner that in respect of one room on the second floor which has been sealed, the petitioner does not lay any claim to the said room and that it can be demolished at the time of effecting repairs. That was also not objected to by the learned counsel for the respondents 4 and Since there was a dispute in respect of who was in occupation of the first floor, the Deputy Director (Property) was again directed to visit the premises in question and file a detailed status report.

4. Pursuant to the above order, the Deputy Director (Property) on 20.7.2007 filed a status report enclosing therewith rough

sketch plans of the first, second and third floors indicating in shaded colours the status of each of the rooms. The Deputy Director has in his affidavit further stated as under:

"3. That on inspection it was found that on the ground floor of the property on Sh. Mohd. Bilari s/o late Sh. Mohd Yusuf is residing. He is in occupation of three rooms, one covered varanda, one latrine and one bath room.

4. That on the first floor of the property one small store is in dilapidated condition. There is a dispute between both the occupants i.e. Mohd. Bilari and Mohd. Idris in respect of this room.

5. That further on the second floor of the property there is another room other than the sealed room. This room is also in dispute and two locks were found and their keys are with Sh. Mohd. Idris s/o Late Sh. Mohd. Ayub residing in first floor.

6. That in respect of first floor of the property it has been found that Sh. Mohd. Idris s/o Late Sh. Mohd. Ayub occuping two rooms, one covered varanda, one latrine, one bath room, one room of tin shed is also at first floor."

5. Learned counsel for the respondents 4 and 5 states that he has no objection to the status report and what is stated in the affidavit. He states that the Respondents 4 and 5 will abide by the directions of this Court. Learned counsel for the petitioner states that if a direction is issued to restore the parties after the repairs are carried out to the position they are at the moment, he will have no objection.

6. Accordingly, it is directed as under:

(i) The petitioner and the Respondents No. 4 and 5 will hand over the vacant and peaceful possession of the respective portions under their occupantion to the Deputy Director (Property), Slum and JJ Department, MCD on 1.8.2007 at 11.00 a.m. The keys of the respective portions will be handed over to the Deputy Director by the petitioner and Respondents 4 and 5.

(ii) The repair work will commence as soon thereafter as is practicable and will be completed on or before 15.9.2007.

(iii) In the process of the repair work, the sealed room on the second floor can be demolished since neither party lays any claim to it.

(iv) After the repair work is complete, the Deputy Director (Property) will put the parties i.e the petitioner and the respondents 4 and 5 back in possession of the respective portions of the property under their occupation at the time of taking the possession. This will be done on or before 22.9.2007.

7. With the above directions, this writ petition and the pending application stand disposed of.

8. Order be given dasti to learned counsel for the parties.

7. Pursuant to the directions issued by the Single Judge in the writ

proceedings a rough sketch of the property, in question, was

prepared by the MCD, a copy of which has been placed on record.

8. Learned counsel for the petitioner submits that petitioner was

residing at the first floor and second floor of the property. Sketch

plans were prepared by the MCD, which shows as under:

9. Grievance of the petitioner is that although rooms have been

constructed on the first floor of the property, but no roof has been

constructed on the WC and bathroom. Further the doors have been

removed and fresh doors have not been provided by the

respondent MCD. Respondent MCD has also not provided a proper

drainage system in these premises. As far as the second floor is

concerned while placing reliance on the rough sketch, learned

counsel for the petitioner submits that room, which is shown at the

right hand corner and stated to be locked by putting two locks, has

been demolished by the respondent MCD but has not been re-

constructed. It is further submitted that the order was passed as far

back as on 24.7.2007 but the MCD has not complied with the same

till date.

10. Petitioner was put back into possession only on 6.4.2008 pursuant

to the order passed on 14.12.2007. Order dated 14.12.2007 reads

as under:

"5. The net result is that the order of this Court remains unimplemented and the time line set by this Court is incapable of being complied with. The Court is constrained, given the casual approach of the MCD in the matter, to require the MCD to pay the costs of Rs.10,000/- to the Delhi Legal Services Authority (DLSA) for necessitating today's adjournment. The amount will be paid by the cheque within a period of 3 weeks from today, and in any event not later than 4.1.2008. Proof of payment of costs be filed before the next date of hearing.

6. A notice will issue to the Standing Counsel to the Govt. of NCT of Delhi without process fee along with a complete copy of the writ petition, and pleadings, returnable on 11.1.2008. The Counsel for the MCD will also serve on the Standing Counsel for GNCTD a complete set of the papers including present application, CM. No. 13909/2007. A copy of the application be also served on counsel for the Petitioner."

11. Learned counsel for the respondent MCD submits that the order

passed on 24.7.2007 has been complied with. Counsel further

submits that whatever position existed at the site when the

possession was handed over for the purposes of repair has been

restored back to the original condition. Counsel also submits that

no objection was raised by the petitioner either with regard to the

room at the second floor or with regard to non-availability of doors

and drainage system at the time of taking over possession. Counsel

for the respondents has drawn the attention of the Court to the

handing over report dated 28.3.2008. It has been strenuously

argued by learned counsel for the respondent MCD before this

Court that no room was constructed at the second floor by the MCD

as the possession with respect to this room was disputed between

the petitioner and the other occupants residing on the ground floor.

12. Learned counsel for the petitioner submits that by taking over

possession, it cannot be said that petitioner has condoned the act

of the respondent MCD as the petitioner is a poor and illiterate

person and had no place to reside during the time when the

possession was handed over by the respondent.

13. I have heard counsel for the parties and also perused the

documents and orders placed on record. The basic facts of this

case are not in dispute as prior to the passing of the order the court

dealing with the writ petition had directed the MCD to visit the

property and prepare a site plan. All parties had admitted the site

plan to be correct. The site plan is not disputed by the respondents

even during these proceedings. The site plan clearly shows that

there is only one area in the property, which is open to sky and no

assessment can be made on the basis of this plan that other parts

of this property were without any roof. Thus to show that the

property has been restored to the petitioner in the same condition

as it was taken is factually incorrect. The submission made by

counsel for the respondents is without any force that since the

room of the second floor is disputed, the respondents were not

obliged to reconstruct the same. The order dated 24.7.2007 clearly

states that on inspection it was found that on the ground floor of

the property one Sh. Mohd. Bilari is residing. He is in occupation of

three rooms, one covered varanda, one latrine and one bathroom.

Further on the first floor of the property one small store is in a

dilapidated condition and there is a dispute between both the

occupants, Sh. Mohd. Bilari and Sh. Mohd. Idris (petitioner herein)

in respect of this room. As far as second floor is concerned it was

noticed that there is another room other than the sealed room. This

room is also in dispute and two locks were found and their keys are

with Sh. Mohd. Idris (petitioner herein), residing on the first floor.

14. The court has also noticed that with respect to first floor of the

property it has been found that Sh. Mohd. Idris (petitioner herein) is

occupying two rooms, one covered varanda, one latrine, one

bathroom, one room of tin shed is also at first floor. The effect of

the order was that the respondent MCD was to repair and restore

the property in the same condition as it was taken from the parties.

15. Admittedly the respondents have failed to construct the additional

room of the second floor irrespective of the fact that there is

dispute between the occupants as the order dated 24.7.2007

reveals firstly that the room exists on the second floor and

secondly the room was locked with two locks and both the keys are

with Sh. Mohd. Idris (petitioner herein). Respondents have willfully

committed the contempt in utter disregard of the orders passed by

this Court. In view thereof, Mr.Shailendra Dhawan, Executive

Engineer, respondent no.2, is held guilty of contempt.

16. List the matter on 14.7.2011, for arguments on sentence.

G.S. SISTANI, J.

MAY 18, 2011 'msr/2'