Delhi High Court
Gulzar Amhad vs P K Gupta & Ors. on 7 May, 2015
Author: Suresh Kait
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 7th May, 2015
+ CONT.CAS(C) No. 286/2013 & CM. Nos. 6417/2013,
6418/2013 and 9510/2013
GULZAR AHMAD ..... Petitioner
Represented by: Mr. M. Tarique Siddiqui
and Ms. Rakhshan Ahmed, Advs.
Versus
P K GUPTA & ORS. ..... Respondents
Represented by: Mr. Sanjeev Sabharwal,
Standing Counsel for R1/North MCD.
Mr. S.K. Duggal, Adv. for R3 to R7.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present petition, petitioner seeks directions thereby
initiating contempt proceedings against the respondents for wilful
disobedience of order dated 25.02.2008 passed in W.P.(C)
7089/2007 and order dated 09.09.2008 passed in LPA No.
129/2008.
2. Vide order dated 25.02.2008, order passed by the MCD on
29.06.2007 was set aside and the respondent / MCD was directed to
seal the premises no. 6342-6343/XI, Quresh Nagar, Qusabpura,
Sadar Bazar, Delhi.
3. Being aggrieved by the aforesaid order, Naseem Pathaan
(now deceased) filed an LPA no. 129/2008. Same was disposed of
vide order dated 09.09.2008, wherein it was recorded as under:
"4. As is clear from the order of the learned
Single Judge, there is a serious dispute as to the
ownership rights in respect of the suit property.
There is also a dispute as to which party was in
possession of the suit property on the date of
the sealing. It appears that after the writ
petition was heard by the learned Single Judge
and matter was kept reserved for judgment, the
present appellant had filed a civil suit and in
that suit, he has obtained an ex-parte
temporary injunction and the said suit is still
pending. In view of the disputed question of
fact, the learned Single Judge was right in
directing re-sealing of the premises and further
directing costs of Rs.25,000/-. It is, in our
opinion, not possible to resolve the controversy
in writ jurisdiction under Article 226 of the
Constitution. The parties are free to approach
the Civil Court for seeking their remedies and
the MCD shall continue to keep the property
under seal and strictly abide by the directions
of the civil court."
4. Ld. Counsel for the petitioner has drawn the attention of this
Court to Page 70, Annexure P-9 and submits that the entire open
area shown in the photograph is part of property mentioned above
and the respondent / MCD has not sealed the entry gate which is at
the top of the photograph. Thus, illegal activities are still going in
the said open area.
5. It is not in dispute that constructed property mentioned above
has been totally sealed. There is no entry to go inside the building.
However, the entry of this open area has not been sealed.
6. Respondent nos. 3 to 7 have claimed, while referring Page-
70, Annexure P-9, that the left side of the open area adjoining to
building is part of the aforesaid property. But the right side of the
open area with one room in corner belongs to property no. 6339.
Thus, there is a dispute to this effect and a Civil Suit being no. CS
(OS) 366/2012 is pending adjudication before this Court.
7. On perusal of the Civil Suit mentioned above, which is at
Page 433 of the petition, it is revealed that petitioner / plaintiff
thereby claimed that he is a co-owner of property bearing no. 6342-
6343/XI, Quresh Nagar, Qusabpura, Sadar Bazar, Delhi-6 ad-
measuring 766 Sq. Mtr. Whereas, the claim of the respondents No.
3 to 7, legal heirs of the Naseem Khan (now deceased), is that they
are owner of the entire property mentioned above and the plaintiff
Gulzar Ahmed (petitioner herein) has nothing to do.
8. The case is pending for disposal and vide order dated
07.01.2015, interim order dated 14.02.2012 has been made
absolute.
9. It is not in dispute that order dated 25.02.2008 passed by this
Court in W.P.(C) 7089/2007 is qua property no. 6342-43/XI as
noted above. Whereas the claim of the respondent nos. 3 to 7 is in
respect of separate property, i.e., property no. 6339. The entry of
the open space of both the above-cited properties is the same.
Moreover, other properties are also there which have the same
entry. Thus, MCD has rightly not sealed the entry gate.
10. The constructed property no. 6342-43/XI has been sealed
from all four openings by raising brick wall which has not been
disputed by the petitioner.
11. In the case of Bihar State Government Secondary School
Teachers Association vs. Ashok Kumar Sinha & Ors. (2014) 7
SCC 416, the Supreme Court has observed as under:-
".....The Court is supposed to adopt cautionary
approach which would mean that if there is a
substantial compliance of the directions given
in the judgment, this Court is not supposed to
go into the nitty gritty of the various measures
taken by the Respondents. It is also correct that
only if there is willful and contumacious
disobedience of the orders, that the Court
would take cognizance. Even when there are
two equally consistent possibilities open to the
Court, case of contempt is not made out. At the
same time, it is permissible for the Court to
examine as to whether the steps taken to
purportedly comply with the directions of the
judgment are in furtherance of its compliance
or they tend to defeat the very purpose for
which the directions were issued....."
12. In view of the compliance report filed by the respondents, I
am not inclined to pass order against the respondents in the instant
petition.
13. Accordingly, the petition is disposed of.
14. Consequently, all the pending applications stand disposed of
being infructuous.
SURESH KAIT, J.
MAY 07, 2015
jg/sb
