Delhi High Court

Mohan Nair vs Rajiv Gupta & Ors on 1 May, 2015

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 1st May, 2015

+                               LPA No.364/2014

       MOHAN NAIR                                     ..... Appellant
                         Through:     Mr. Ramesh Kumar, Adv.

                                    Versus
       RAJIV GUPTA & ORS.                              ..... Respondents

                    Through:          Mr. Sunil Magon, Adv. for R-1 to 3.
                                      Mr. Vivek B. Saharya, Adv. for R-
                                      4/NDMC.
                                      Mr. Sanjeev Goyal and Mr. Abhjoy
                                      Banerjee, Advs. for R-5 with S.I.
                                      Bishambar Dayal.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 14 th March, 2014 of

the learned Single Judge of this Court, of disposal of Cont. Cas (C)

No.148/2014 filed by the appellant with liberty to the appellant to seek his

civil remedies against the respondents.

2. Notice of the appeal was issued and replies have been filed on behalf

of respondents No.1&2, respondent No.3 and respondent No.4. We heard the

counsel for the appellant, the counsel for the respondents No.1 to 3 and the

counsel for the respondent no.4/NDMC. The respondent No.5 is the Sub

Inspector of Police of the concerned police station.

3. To understand the controversy, it is necessary to commence from the

beginning.

4. The appellant /his father was an old tenant at a rent of Rs.100/- per

month in property No.N-5/2, Connaught Circus, New Delhi under the

respondent No.2 The Motor and General Finance Limited of which the

respondent No.1 is the Director. The appellant, on 4th January, 2003 was

dispossessed from his tenancy premises in execution of an order of eviction

obtained by the respondent no.2 Company in a petition for eviction under the

Delhi Rent Control Act, 1958 filed against some other person. The appellant,

on 14th January, 2003, filed an application under Section 25 of the Rent Act

in the Court which had passed and executed the order of eviction and

whereunder the appellant had been dispossessed from his tenancy premises.

The said application was allowed vide order dated 7th July, 2011 of the Court

of the Rent Controller. It was held that the appellant was a tenant under the

respondent No.2 Company in respect of premises No. N-5/2, Connaught

Circus, New Delhi as shown in the site plan Ex.AW5/4 and as portion D2 in

the site plan Ex. OW1/1 and that the appellant had been wrongfully

dispossessed therefrom. Accordingly, the respondent No.2 Company was

directed to restore to the appellant possession of N-5/2, Connaught Circus,

New Delhi as shown in site plan AW5/2 and as portion D2 of site plan

Ex.OW1/1.

5. However it appears that the respondent No.2 Company after

wrongfully taking over possession of the premises aforesaid in the tenancy

of the appellant, had commenced demolishing the same. On an application

of the appellant, vide order dated 15th July, 2003 the respondent No.2

Company was directed to maintain status quo and not to carry out further

demolition. Upon the respondent No.2 Company again, in or above the year

2005 proceeding to demolish the said premises, the appellant filed an

application. The respondent No.2 Company however took a stand that the

premises had fallen on their own. The appellant accordingly, after the order

dated 7th February, 2011 of restoration of his possession, applied to the Rent

Controller for a direction to the respondent No.2 to re-construct the property.

The respondent No.2 objected contending that the property could be re-

constructed only as per the provisions of the NDMC byelaws and no

building could be reconstructed in derogation thereof and thus no order for

reconstruction could be passed against the respondent No.2 Company. The

Rent Controller, vide order dated 24th August, 2011 accepted the said plea of

the respondent No.2 Company and refused to direct the respondent No.2

Company to reconstruct the tenancy premises. However the Rent Control

Tribunal in an appeal filed by the appellant in this regard, vide order dated

5th July, 2012 directed the respondent No.2 Company to their original

condition as shown in the site plans aforesaid.

6. The aforesaid order of the Rent Controller and Rent Control Tribunal

have attained finality.

7. The respondent No.2 however failed to comply therewith and which

lead to the appellant filing Cont.Cas (C) No.754/2012 in this Court.

8. The respondent No.2 Company contested the said contempt case by

again contending that it had written several letters to the NDMC seeking

permission to reconstruct the premises in the tenancy of the appellant as

directed by the Rent Control Tribunal but no satisfactory response had been

received from NDMC. The respondent No.2 Company further offered to pay

cost of re-construction to the appellant to enable the appellant to himself

restore the premises to the original condition at his own risk and

responsibility and in terms of the order of the Rent Controller and further

offered that it will cooperate and sign all papers to enable the appellant to do

so. The said offer of the respondent No.2 Company was accepted by the

appellant who submitted that no permission was required from NDMC;

reliance in this regard was placed on the observations in the order dated 5th

July, 2012 supra of the Rent Control Tribunal. It was further the contention

of the counsel for the appellant as recorded in the order of that day that even

as per the building byelaws, construction which was either demolished or

which fell on its own could be restored and no permission therefor was

required.

9. The Cont.Cas(C) No.754/2012 was accordingly disposed of by

accepting and taking on record the statements of the counsels for the parties

and ordering the parties to remain bound by the same and a direction for

payment of the agreed sum of money by the respondent No.2 Company to

the appellant towards construction cost was passed.

10. However the appellant was not able to himself also reconstruct and

restore the property to its original condition, according to the appellant

owing to collusion between the officials of the respondent No.2 Company,

Police and the NDMC, who prevented the appellant from doing so. This led

to the filing of Cont.Cas (C) No.148/2014 wherefrom this appeal arises.

11. The learned Single Judge however vide the impugned order dismissed

the said contempt case in limine observing, i) that the respondent No.2

Company, at the time of disposal of Cont. Cas(C) No.754/2012 earlier filed

by the appellant had not given any undertaking to facilitate re-construction /

restoration of the premises by the appellant and in fact the appellant had

agreed to carry out the said works at his own risk and responsibility; ii) if

according to the appellant the respondents were deliberately obstructing

reconstruction / restoration activity being undertaken by him, then it was for

the appellant to invoke the civil remedies as may be available to him in law

but contempt proceedings would not be a substitute for the same.

Accordingly, the contempt case was disposed of with liberty to the appellant

to seek his civil remedies against the respondents.

12. Inspite of being conscious of an appeal / LPA being maintainable only

against an order punishing for contempt, we issued notice of this appeal

finding that, in the legalese, the orders / directions aforesaid of the Rent

Controller and the Rent Control Tribunal which had attained finality, have

remained unimplemented thereby making a mockery of the process of law

and the likely effect whereof would be erosion of faith and respect in the

orders / directions of the Court. Sure enough, the counsel for the

respondents No.1 to 3 also, on the very first date, took objection as to the

maintainability of the appeal. The said objection has been reiterated in the

reply filed to the appeal.

13. The appellant has also impleaded Sh. Arun Mitter, another Director of

the respondent No.2 company as respondent No.3. The respondent No.3 has

filed a separate reply but through the same advocate as the respondents No.1

and 2. The respondent No.4 Chief Architect, NDMC has also filed a reply /

status report to the effect that though the respondent No.2 company was

directed to submit a proposal for the proposed construction in the prescribed

proforma but had not done so and without permission of the NDMC the

construction in terms of the order of the Rent Control Tribunal could not be

carried out.

14. The learned Single Judge, in the impugned judgment has not given

any reasoning whatsoever for holding as to why the contempt case was not

maintainable and as to why the appellant instead take up remedies in law

except for recording that the respondent No.2 Company at the time of

disposal on 25th February, 2013 of the earlier Cont.Cas (C) No.754/2012

filed by the appellant had not given any undertaking.

15. However the power to invoke contempt jurisdiction of this Court is

not limited to cases of breach of undertaking only. Reliance by the counsel

for the appellant in this respect on Rama Narang Vs. Ramesh Narang

(2006) 11 SCC 114 is apposite. It was held that the words "willful

disobedience to any judgment decree, direction, order, writ or other process

of a Court" in Section 2(b) of the Contempt of Courts Act, 1971 denote wide

nature of the power of the Court and that in the case of consent order /

decrees, even where no undertaking was given to the Court, the question

would still arise whether the party in breach of such promise could be called

upon to answer proceeding in contempt for willful disobedience of the

consent order. While addressing the said question, it was held that all

decrees and orders including consent decrees or orders are executable but

merely because they are executable would not take away the Courts

jurisdiction to deal with the matter under the contempt jurisdiction, if the

Court is satisfied that the violation of the order or decree is such that it

would warrant punishment under Section 13 of the Act on the ground that

the contempt substantially interferes or tends substantially to interfere with

the due course of justice. It was further held that in such circumstances, it

would neither be in consonance with the statute, judicial authority, principle

or logic to draw any distinction between the willful violation of the terms of

a consent decree and willful violation of a decree which is passed on

adjudication. It was yet further held that ultimately, the matter is one of the

Court's discretion having regard to the facts of the case. Finding that the

violation in the facts of that case to be a violation of the Court‟s order, it was

held that the violation was contumacious.

16. We, for the reasons following are of the view that the present appeal is

maintainable and the findings returned by the learned Single Judge in the

impugned order are liable to be set aside and the respondents No.1 to 3 have

indeed committed contempt of Court and appropriate directions required to

be issued to enforce the orders of the Rent Controller and the Rent Control

Tribunal:

(A) The finding of the Rent Controller which has attained finality is

that the respondent No.2 company of which respondents No.1

and 3 are Directors, in execution of an order of eviction not

obtained against the appellant, wrongfully dispossessed the

appellant on 4th January, 2003 from the premises in his/in his

father‟s tenancy since the year 1953.

(B) Though the appellant, within a few days of his dispossession,

on 14th January, 2003 filed objections under Section 25 of the

Rent Act as aforesaid, but the respondents No.1 to 3 inspite of

knowledge of pendency of the said objections, on or about 6th

June, 2003 got the said premises demolished by complaining to

the NDMC of the same being unauthorized. The appellant had

to again approach the Court for a direction to the respondents

No.1 to 3 to maintain status quo.

(C) Inspite of the said order of status quo, further damage was

caused to the premises, though the explanation of the

respondents No.1 to 3 was that the premises have fallen on its

own.

(D) The objections filed by the appellant under Section 25 were

finally allowed as aforesaid on 7th July, 2011 with a direction to

the respondent No.2 Company to restore possession to the

appellant and direction for reconstruction/restoration of the

premises to the original condition was also issued on 24th

August, 2011.

(E) Though the respondents No.1 to 3 did not challenge the said

orders of the Rent Controller and Rent Control Tribunal but

also did not comply with the same taking the excuse of having

applied to the NDMC and NDMC having not permitted

reconstruction / restoration of the premises, inspite of the said

plea having not found favour with the Rent Control Tribunal

and thereby compelling the appellant to approach this Court in

Cont.Cas (C) No.754/2012.

(F) Faced therewith, the respondents No.1 to 3 offered to pay the

cost of reconstruction / restoration of the premises to the

appellant to enable the appellant to himself restore the premises

as directed by the Rent Control Tribunal and which offer was

accepted by the appellant.

(G) In this manner, the respondents No.1 to 3 avoided decision on

merits of Cont.Cas (C) No.754/2012.

(H) From a reading of the order dated 25th February, 2013 of this

Court in Cont.Cas(C) No.754/2012 it can by no means be said

that the appellant discharged the respondents No.1 to 3 from

their obligations under the orders of the Rent Controller and

Rent Control Tribunal or that the liability of the respondents

No.1 to 3 to comply with the orders / directions of the Rent

Controller and the Rent Control Tribunal came to an end. This

is quite evident from the statement of the counsel for the

respondents No.1 to 3 recorded in the said order to the effect

that the said respondents had no intention to flout the orders of

the Rent Controller and the Rent Control Tribunal and that

inspite of the respondents paying the agreed cost of

reconstruction / restoration to the appellant and the appellant

himself taking over the said work, the respondents would

remain liable to cooperate in the said works and would sign all

papers and documents which they may be required to sign in

this regard. Not only so, the said order dated 25 th February,

2013 also binds the respondents to the statement made by them

before the Court.

(I) The learned Single Judge is thus clearly in error in the

impugned order in proceeding on the premise that the directions

/ orders of the Rent Controller and the Rent Control Tribunal

averring contempt of which the earlier Cont.Cas(C)

No.754/2012 had been filed ceased to be enforceable or that a

fresh arrangement had come into being between the parties in

terms of the order dated 25th February, 2013 or that the

appellant was required to take civil remedies for enforcement of

the obligations of the respondents arising from the order dated

25th February, 2013.

(J) Not only so, once the right of the appellant to restoration of

possession of the premises in its tenancy by reconstruction

thereof in the same position as it existed prior to demolition

thereof has been established in a competent Court, to direct the

appellant for fresh adjudication is to make as aforesaid a

mockery of law and the process of the Courts and which this

Court can by no stretch of imagination allow to happen. If the

same were to be allowed, the same will send a message to the

public at large that the orders / directions of the Court need not

to be complied with.

(K) the net effect today is that the respondent No.2 Company,

inspite of accepting and allowing the orders aforesaid of the

Rent Controller and Rent Control Tribunal to attain finality, has

for the last nearly three years been successful in evading

implementation / enforcement thereof.

(L) The impugned order dated 14th March, 2014, holding that the

orders of the Rent Controller and Rent Control Tribunal are no

longer actionable/enforceable and the relationship of the parties

is now governed by the terms recorded in the order dated 25 th

February, 2013, in our view is not a order declining to initiate

proceedings for contempt or of dropping the proceedings for

contempt or an order acquitting or exonerating the contemnor

but a decision made on the merits of the dispute between the

parties;

(M) The Supreme Court in Midnapore Peoples' Coop. Bank Ltd.

Vs. Chunilal Nanda (2006) 5 SCC 399 has held that any

direction issued or decision made by the High Court on the

merits of a dispute between the parties, will not be in the

exercise of jurisdiction to punish for contempt and therefore not

appealable under section 19 of the Act unless such direction or

decision is incidental to or inextricably connected with the

order punishing for contempt, in which event the appeal under

section 19 of the Act can also encompass the incidental or

inextricably connected directions. It was further held that if the

High Court decides an issue or makes any direction relating to

the merits of the dispute between the parties in a contempt

proceedings, the aggrieved person is not without remedy; such

an order is open to challenge in an intra-court appeal.

(N) The counsel for the respondents No.1 to 3 has not even argued

that the obligations / liability of the respondents No.1 to 3 under

the orders aforesaid of the Rent Controller and the Rent

Controller Tribunal stand extinguished; rather, to be fair to the

counsel for the respondents No.1 to 3, he had stated that the

respondents No.1 to 3 have no objection to the appellant

reconstructing / restoring the premises to the same condition as

shown in the site plan referred to in the order of the Rent

Controller and would create no impediments thereto, if the

NDMC was not to object to the same.

(O) Thus the impugned order of the learned Single Judge treating

the relationship of the appellant and the respondent No.2

company to be governed by the terms and conditions contained

in the order dated 25th February, 2013 and the liability of the

respondent No.2 company to comply with the directions

contained in the orders aforesaid of the Rent Controller and

Rent Controller Tribunal to have stood extinguished, has but to

be set aside.

(P) We have considered whether after holding so, to remand the

matter to the learned Single Judge to proceed with the

contempt. However, the matter being very old and having

heard the counsel for the NDMC also and is the only objection

to the implementation / enforcement of the orders of the Rent

Controller and the Rent Controller Tribunal, we do not feel the

need therefor.

(Q) The counsel for the NDMC of course, with undue vehemence

contended that without plans for construction being submitted

and being sanctioned by the NDMC no re-construction /

restoration of the premises to the original condition can be

permitted.

(R) We are however of the opinion that the said argument is today

not available. We may highlight that the said contention, this

time by the counsel for the NDMC, is but an echo of the

contention raised by the counsel for the respondent No.2

company before the Rent Controller and which had found

favour with the Rent Controller who refused to direct the

respondent No.2 company to reconstruct the property.

However, the Rent Control Tribunal in appeal held that the

contention that permission from NDMC would be required or

the reconstruction would invite an action against the respondent

No.2 company was misconceived. It was held that once it was

found that the respondent No.2 company had illegally obtained

possession of the said portion in the tenancy of the father of the

appellant, the appellant was entitled to get it re-erected. It was

also noticed that it was not the case of the respondent No.2

company that the said portion was illegal. The said finding also

has attained finality and though NDMC was not a party to the

proceedings before the Rent Controller or the Rent Control

Tribunal, but is bound thereby. The attempt of the NDMC to

help the respondents no.1 to 3 is evident.

(S) We may in this regard also notice that the finding which has

attained finality is, of the father of the appellant being a tenant

with respect to the said premises since the year 1953. The

NDMC areas prior to the year 1994 when the NDMC Act was

enacted were governed by the Punjab Municipal Act, 1911.

Under the said Act, action for demolition of unauthorized

construction even if any could be taken only within six months

of the construction. It has been held by the Division bench of

this Court in NDMC Vs. H.K. Choudhary

MANU/DE/1985/2009 that the NDMC could not take any

action for demolition of any unauthorized construction carried

out prior to 27th May, 1984. Thus the question whether the

construction of the premises in the tenancy of the appellant / his

father was legal or illegal is now not relevant. Further, the

NDMC having wrongfully demolished the said construction on

the complaint of the respondent No.2 company of the same

being illegal, cannot now object to reconstruction / restoration

thereof.

(T) The principles of restitution would apply to such

reconstruction/restoration of premises to the original condition

and the procedure applicable to raising new construction would

not apply. The action of reconstruction/restoration to original

condition which has been directed, is nothing but undoing of

what has been found to be done illegally. Both, respondents

no.1 to 3 as well as NDMC are privy to such illegality and

cannot now object to such restitution on the grounds raised.

(U) We, in arriving at the aforesaid conclusion, have been guided

strongly by our view that to say that the orders of the Rent

Controller and Rent Control Tribunal are unimplementable and

unenforceable has the tendency of making the law and the

Court, a laughing stock. The perception of "the law" as Mr.

Bumble (in Oliver Twist) said "is a ass − a idiot" will be

cemented if the Courts themselves hold their own orders to be

unimplementable and unenforceable. It is the duty of every

Court to prevent its machinery from being made a sham,

thereby running down the Rule of Law and rendering itself an

objection of ridicule. The House of Lords, in Attorney General

Vs. Guardian Newspaper Ltd. [1987] 1. W.L.R. 1248 observed

that public interest requires that we have a legal system and

courts which command public respect and if the courts were to

make orders manifestly incapable of achieving their avowed

purpose, law would indeed be an ass. Justice Krishna Iyer in

Bushing Schmitz Private Ltd. Vs. P.T. Menghani (1977) 2

SCC 835 also held each Court to be clothed with the purpose to

prevent, its process from being rendered a parody and the rule

of law from becoming an objection of public ridicule and the

law, a laughing stock. We are of the opinion that to allow the

orders aforesaid of Rent Controller and Rent Control Tribunal

from remaining unimplemented on the grounds which were

considered while making the said order, would indeed make the

law a laughing stock and frustrate justice.

(V) The Division Bench of this Court in Prof. Ram Prakash Vs.

Bengali Sweet Centre ILR (2012) Delhi 808 has also held that

the Courts, if owing to shackles of technicalities, do not grant

the relief, if found to be due, would be doing disservice rather

than service and that the Courts, if do not come to the rescue of

a litigant entitled to relief, would not be rendering justice for

which the Courts have been set up. It was observed that justice

is a virtue which transcends all borders and neither the rules of

procedure nor technicalities of law can stand in its way.

Reliance was placed on M.S. Grewal Vs. Deep Chand Sood

(2001) 8 SCC 151 laying down that Court will lose their

efficacy if they cannot possibly respond to the needs of the

society.

(W) Here, we have a large corporate (respondent no.2) controlled by

one of the most influential residents of the city (respondent

no.3) pilled against a small tenant who has only the Courts to

rely upon. The respondents no.1 to 3 have succeeded in, first

illegally dispossessing the said tenant from the premises in its

tenancy and after the tenant, by litigating for nearly nine years

obtained an order of repossession/restoration, now for the last

nearly three years, from implementation thereof. The Supreme

Court in Krishnadevi Malchand Kamathia Vs. Bombay

Environmental Action Group (2011) 3 SCC 363 observed that

justice is only blind or blindfolded to the extent necessary to

hold its scales evenly; it is not and must never be allowed, to

become blind to the reality of the situation, lamentable though

that situation may be.

17. We accordingly allow this appeal by directing:

(i) that the appellant shall be entitled to forthwith

reconstruct / restore the premises in its tenancy as shown

in the site plans referred to in the orders aforesaid of the

Rent Controller and neither the NDMC nor the

respondents No.1 to 3 or anyone else on behalf of the

respondent No.2 company shall cause any disruption in

the said works;

(ii) if either of them cause any disruption, the appellant shall

be entitled to apply for appropriate measures in this

proceeding itself;

(iii) if the respondents comply with this order, the contempt

case against them shall stand discharged; however, if

they cause or allow to be caused any interference in the

reconstruction / restoration of the premises, this Court

will be constrained to proceed further with the contempt

case to its logical conclusions;