Bindu Dhanwal & Ors vs Balwinder Kumar, Vice Chairman ...
2015 Latest Caselaw 463 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 19th January, 2015 .

+                              LPA No.7/2015

       BINDU DHANWAL & ORS                    .... Appellants
                  Through: Mr. Vanshdeep Dalmia with Mr.
                           Hemant Raj Phalpher & Mr. Parth
                           Goswami, Advs.

                                  Versus

    BALWINDER KUMAR, VICE CHAIRMAN,
    DDA & ORS                                  ..... Respondents
                  Through: Mr. Dhanesh Relan with Mr. Arush
                           Bhandari, Adv. for DDA.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This appeal impugns the orders dated 19th November, 2014 and 6th

January, 2015 of the learned Single Judge of this Court in Cont.Cas.(C)

No.712/2014 filed by the respondent no.5 Smt. Karuna Gupta against the

respondents no.1 to 4 being the officials of the Delhi Development Authority

(DDA).

2. The appeal was filed on 7th January, 2015 itself and was mentioned

for urgent listing and was taken up for hearing at about 1315 hours. It was

then the case of the counsel for the appellant that the copy of the order of

previous day i.e. 6th January, 2015 impugned in the appeal was not even

ready or available till then and that in the meanwhile the property of the

appellant was being demolished by the DDA in compliance of earlier order

dated 19th November, 2014 in the contempt case. The counsel for the DDA

also appeared on advance notice on 7th January, 2015. Since copy even of

one of the impugned orders was not available till then, we while directing

the appeal to be taken up for hearing on 12th January, 2015, directed that no

further demolition of the property in question shall be undertaken.

3. We heard the counsel for the appellants as well as the counsel for the

officials of the DDA on 12th January, 2015 and reserved orders. The file of

the contempt case from which this appeal arises has also been requisitioned.

4. The contempt case from which this appeal arises emanated from the

order dated 4th April, 2014 in W.P.(C) No.2247/2014 filed by the respondent

no.5 Smt. Karuna Gupta, impleading North Delhi Municipal Corporation,

DDA and the appellant no.1 Ms. Bindu Dhanwal respondents thereto. It was

the case of the respondent no.5 / writ petitioner, (i) that she was the resident

of ground floor flat No.A-4/99 in Priyadarshni Apartments, Paschim Vihar,

New Delhi; that the appellant no.1 was in occupation of the first floor flat

no.A-4/100; (ii) that the appellant no.1 had unauthorizedly raised

construction of a second as well as third floor of the property; and, (iii) that

though the respondent no.5 / writ petitioner had complained against the said

unauthorized construction but no action had been taken. Accordingly the

writ petition was filed seeking a direction to the North Delhi Municipal

Corporation and the DDA to take action with respect to the unauthorized

constructions comprising of second floor and third floor above flat no.A-

4/100 in Priyadarshini Apartments, Paschim Vihar, New Delhi. The said writ

petition came up before the learned Single Judge, it appears for the first

time, on 4th April, 2014 when the counsels for the North Delhi Municipal

Corporation and DDA appeared on advance notice. The learned Single

Judge disposed of the writ petition on the same day, without even serving

notice thereof on the appellant no.1, and on the statement of the counsels for

North Delhi Municipal Corporation and DDA that the building activities of

the subject Society were still with the DDA and North Delhi Municipal

Corporation had no role and that DDA will take necessary steps to examine

the complaint filed by the respondent / writ petitioner and take appropriate

action thereon, by directing the DDA:-

"to examine the complaint submitted by the petitioner and if it is satisfied that there exists illegal / unauthorized construction in the subject flat owned by the respondent no.5, then appropriate action for removal of unauthorized construction shall be taken after issuance of notice to the respondent no.5 in accordance with law. A written intimation of the decision taken by the respondent no.2/DDA shall be communicated to the petitioner and the respondent no.5 within six weeks from today."

5. The respondent no.5 / writ petitioner, on or about 11th September,

2014 filed the contempt case from which this appeal arises pleading that

though the order dated 4th April, 2014 supra had directed the DDA to take

action for unauthorized constructions within six weeks thereof but no action

had been taken; that due to the continuance of the unauthorized construction

the ground floor flat of the respondent no.5 / writ petition was being

damaged.

6. When the said contempt case came up before the learned Single Judge

on 27th October, 2014, the DDA informed that action in compliance of the

order dated 4th April, 2014 had already been taken. Thereafter a Status

Report dated 15th November, 2014 was filed stating that sealing-cum-

demolition order for the entire Society including flat no.A-4/100 had been

passed on 21st May, 2014 and illegal unauthorized construction over flat

no.A-4/100 had already been partially demolished and sealed on 7th October,

2014. The contempt case was thereafter listed before the learned Single

Judge on 19th November, 2014, when, finding that complete demolition

action as warranted by the order dated 4th April, 2014 had not been carried

out and further finding that though the original construction comprised of

ground and first floor only but two full-fledged floors had been

unauthorizedly constructed above the first floor and that only partial

demolition action had been taken till then, the learned Single Judge directed

the DDA to carry out complete demolition of both second and third floors as

the same were putting additional load on the structural foundation of the

entire property.

7. It is then that the appellant no.1 along with respondents no.2 & 3 i.e.

Dhanno Devi and Ram Niwas claiming to be owners of the unauthorized

construction ordered to be demolished, filed an application before the

learned Single Judge, for being impleaded as a party to the contempt case

and for recall of the order dated 19th November, 2014. The said application

came up before the learned Single Judge on 12th December, 2014 when the

arguing counsel for the appellants did not appear and the application was

adjourned to the date already fixed of 8th January, 2015. The appellants filed

another application for early hearing of their impleadment application and

on which arguments were heard and order reserved on 24 th December, 2014.

The learned Single Judge, vide order dated 6th January, 2015 dismissed the

application of the appellants for impleadment and for recall of the order

dated 19th November, 2014 and inter alia against which this appeal has been

filed.

8. It appears that on 7th January, 2015 itself, in compliance of the order

dated 19th November, 2014 commenced demolition of the second and third

floor over the property and when the appeal was mentioned for hearing as

aforesaid and stay of demolition granted.

9. The learned Single Judge has dismissed the application of the

appellants for impleadment and for recall of the order dated 19 th November,

2014 finding / observing / holding:-

(i) that there was no merit in the contention of the appellants that

in contempt case no direction as issued vide order dated 19 th

November, 2014 could have been issued; the said direction was

merely consequently to the order dated 4th April, 2014 in the

writ petition and of which contempt was averred;

(ii) that the appellant no.1, though respondent in the writ petition

was not required to be impleaded as a respondent in the

contempt case;

(iii) that the appellant no.1 if aggrieved from the order dated 4th

April, 2014 in the writ petition, ought to have filed an

application for recall of that order in the writ petition and could

not have sought impleadment in the contempt;

(iv) that moreover the appellant if aggrieved with the order of

demolition had the remedy of assailing the same before the

Appellate Tribunal MCD;

(v) that the Court, in the contempt case, was merely implementing

the order dated 4th April, 2014 in the writ petition;

(vi) that it was clear from the photographs that two full-fledged

floors had been constructed unauthorizedly on a property which

was intended to comprise of ground and first floor only.

10. The counsel for the appellants has found fault with the order dated

19th November, 2014 on the ground of being beyond the contempt

jurisdiction and by placing reliance on V.M. Mahohar Prasad Vs. N.

Ratnam Raju (2004) 13 SCC 610 laying down that the Contempt Court

cannot pass any supplemental order to the main order. Fault is also found in

the order dated 6th January, 2015 dismissing the application of the appellants

for impleadment and for recall of the order dated 19th November, 2014

contending that since the order dated 4th April, 2014 as well as the order

dated 19th November, 2014, though affecting the rights of the appellants,

have been made behind the back of the appellants, the appellants were

necessary and property parties and entitled to be heard.

11. We have considered the controversy. Besides legalese, the gravamen

of the matter is unauthorized construction. It is undisputed that the original

construction of the property was of two floors i.e. ground and first floors

only. It is also undisputed that a complete second and a complete third floor

had been constructed. Though the counsel for the appellants admits that the

construction of the third floor is indeed unauthorized, he prefers to call the

construction of the second floor not as unauthorized but as irregular.

However, when we asked him to show any document to the effect that any

part of the second floor is authorized or was in existence when the first floor

was acquired by the appellant No.1, no answer was forthcoming. We see no

reason to not believe the statement of the respondent No.5 / writ petitioner

duly supported by the counsel for the DDA that the entire construction of the

second floor is also unauthorized. This appeal though arising from contempt

proceedings, it cannot be lost sight of that the contempt alleged is of an order

in a writ petition under Article 226 of the Constitution of India. Any

interference by us as is sought, would have the effect of our coming in the

way of demolition of construction which is patently unauthorized. We are

reluctant to, while exercising our judicial powers, perpetuate an illegality.

The Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1

SCC 1 took note of the fact that the Courts today are inundated with land

grabbers and persons indulging in unauthorized construction and sounded a

word of caution against allowing the Courts to be used for retaining illegal

gains indefinitely. Similarly, in Dalip Singh Vs. State of U.P. (2010) 2 SCC

114 it was held that to meet the challenge posed by the new creed of litigants

who shamelessly resort to falsehood and unethical means, the Courts from

time to time have to evolve new rules. Unless the Courts keep pace with the

times and with the situations which they are called upon to meet today, the

Courts would be failing in their duty. Judge Learned Hand's observations in

52 HLR 361 (1939) that the Judge must discover some composition with the

dominant needs of his times, were approved of by our Supreme Court in

Bandhua Mukti Morcha Vs. Union of India (1984) 3 SCC 161 and it was

held that the Court needs to balance the authority of the past with the urges

of the future. Thus, once the construction is found to be unauthorized and

patently illegal, the Courts cannot allow their process to be abused for

preserving such unauthorized construction.

12. With the aforesaid preface, we proceed to examine the contentions of

the counsel for the appellants. The first contention, as aforesaid, is that the

learned Single Judge in exercise of contempt jurisdiction has passed an order

of demolition. It is argued that in the writ petition, no demolition was

ordered.

13. The aforesaid contention is however on an erroneous reading of the

order dated 4th April, 2014 in the writ petition. The writ petition, as

aforesaid, was filed seeking mandamus to the DDA to perform its statutory

duty of removal of unauthorized construction. This Court disposed of the

writ petition with a direction to the DDA to, in accordance with law, take

action with respect to the unauthorized construction, if any. The said action

which was directed to be taken would necessarily include an order of

demolition and demolition of the unauthorized construction. Thus, it cannot

be said that the order dated 19th November, 2014 in the contempt case in any

way enlarged the order in the writ petition. The DDA, by 19th November,

2014 when the contempt petition came up for hearing, had already passed an

order of demolition but had not carried out the demolition, which also it was

required to carry out in accordance with the order dated 4th April, 2014. The

order dated 19th November, 2014 which again directed such demolition, is

not akin to the order which V.M. Mahohar Prasad (supra) could not have

been passed in contempt jurisdiction. The scope of contempt proceedings,

besides being to punish the violators of the order / direction of the Court, is

also enforcement of the directions / orders of the Court. Reliance, if any

need in this regard can be placed on Subrata Roy Sahara Vs. Union of

India (2014) 8 SCC 470 reiterating that contempt jurisdiction extends to

enforcement of courts orders. It would be travesty of justice to hold that a

person who has obtained an order in his favour from the writ court, can only

have punished the persons who have not complied with that order but cannot

enjoy the fruits of the orders.

14. Faced therewith, the counsel for the appellants contended that though

the order dated 4th April, 2014 directed action with respect to unauthorized

construction to be taken after issuance of notice to the appellant No.1but it

was not done so.

15. Per contra, the counsel for the DDA contends that the action with

respect to the unauthorized construction had been initiated as far back as in

the year 2013 and a copy of the order dated 29th May, 2014 of demolition

was also served on the appellant No.1. He has in the Court handed over a

copy of the said order and which is found to be addressed to the appellant

No.1 also.

16. The counsel for the appellants of course controverts.

17. It is however the admitted position that in compliance with the order

dated 4th April, 2014 in the writ petition, on 7th October, 2014 demolition

was partly carried out. The photographs of the said demolition action show

the demolition then carried out to be substantial. In any case, it was not

unnoticeable. We have thus enquired from the counsel for the appellants,

whether not the appellants, if not earlier, at least on 7 th October, 2014 from

the action of demolition, became aware of the proceedings.

18. We have further enquired that even if it is the contention of the

appellants that prior to the order dated 29th May, 2014 of demolition, no

hearing was given to the appellants, why the appellants immediately after 7 th

October, 2014 did not approach the Appellate Tribunal, MCD with the said

grievance and why did the appellants waited till the passing of the order

dated 19th November, 2014 which merely directed completion of the

demolition action.

19. The counsel for the appellants is answerless.

20. It is quite clear that the appellants, knowing fully well that the

illegality in the form of unauthorized construction perpetuated by them was

indefensible, were satisfied in having the said unauthorized construction

only partially demolished, perhaps in the hope of again unauthorizedly

repairing the damage and that further demolition action would not be carried

out. Whatever the appellants are urging today, they could have, if

aggrieved, urged immediately after 7th October, 2014. The appellants rather

succeeded in obtaining an order from us from 6 th January, 2015 of stay of

demolition; but now having gone through the record, we do not find any

ground to interfere with the orders of the learned Single Judge. The

contention of the counsel for the appellants that the DDA did not give notice

to the appellant No.1, before proceeding with the action for demolition of

unauthorized construction, in the facts and circumstances aforesaid, is

unbelievable. Moreover, the said plea also could have been taken in appeal.

21. The same is the answer to the other grounds urged, of the appellants

being a necessary or a proper party to the contempt proceedings. We fail to

see, as to what purpose the presence of the appellants in the contempt case

would serve. The grievance, if any of the appellants should have been from

the order dated 4th April, 2014. The appellants have not made any

application for recall of that order or for impleadment in that writ petition.

As long as that order remains, DDA is bound to comply therewith and in

compliance has to carry out the demolition action.

22. The counsel for the appellants next contended that the Co-operative

House Building Society which has allotted the flats, itself has filed writ

petition No.8069/2014 in this Court for regularization of the second floor

which has been constructed in a large number of properties in the colony and

there is a stay of demolition in the said writ petition also. However, the

counsel himself is not in possession of any such order.

23. The counsel for the DDA controverts and states that the writ petition

has rather been disposed of with a direction to the DDA to consider the

claim for regularization. He denies that there is any stay.

24. The counsel for the appellants is unable to controvert.

25. We do not approve the aforesaid conduct of the counsel for the

appellants, of making misstatement before this Court, to somehow or the

other procure an order of stay.

26. The counsel for the appellants then contends that the appellants only

have been singled out and no action is being taken with respect to the second

floor unauthorizedly constructed in most of the other properties.

27. This submission of the counsel for the appellants is also not borne out

from the order dated 29th May, 2014 of demolition which is with respect to a

large number of properties in the colony. The counsel for the DDA also

states that demolition action with respect to all the properties is being taken,

of course in a phased manner.

28. The counsel for the appellants in the end relies on The National

Capital Territory of Delhi Laws (Special Provisions) Amendment Bill 2014,

to contend that unauthorized construction is protected thereunder. The

counsel however is himself not in possession of the said legislation. There

are no pleadings in this regard. There is nothing to show that the subject

construction is covered by the said legislation. Moreover, the said defense if

any ought to have been taken in the writ petition. It cannot be lost sight of

that there is no challenge to the order directing demolition of the subject

construction. Thus, the said plea also does not come to the rescue of the

appellants.

29. We therefore do not find any merit in this appeal and dismiss the

same. We had while reserving orders continued the interim order dated 6 th

January, 2015. Needless to state that with the dismissal of the appeal, the

said stay stands vacated. To balance equity, we direct the DDA to now, after

one week herefrom and within a further period of one week therefrom,

comply with the order dated 19th November, 2014 of the learned Single

Judge.

30. The contempt file which was requisitioned to this Court be forthwith

returned.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE JANUARY 19, 2015 'pp/bs'