CLCON/51/2018
2021 Latest Caselaw 3412 UK

IN THE HIGH COURT OF UTTARAKHAND
           AT NAINITAL
      ON THE 2ND DAY OF SEPTEMBER, 2021
                           BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
       CONTEMPT PETITION No. 51 of 2018
BETWEEN:

Om Prakash Gupta                         ...Petitioner
      (By Mr. Rajendra Dobhal, Senior Advocate assisted by
      Ms. Rangoli Purohit, Advocate)

AND:

Jakir Hussain                            ... Opposite Party

      (By Mr. B.S. Adhikari, Advocate)


                       JUDGMENT

1. WPMS No. 67 of 2014 filed by the petitioner was allowed by learned Single Judge vide judgment dated 18.12.2017. Operative portion of the said judgment is reproduced below:-

"33. Accordingly, the writ petition is allowed. Impugned Annexure No. 17 dated 15.06.2010 is quashed and set-aside. The respondents are restrained from interfering in running the petrol pump outlet over the Plot No. 140/1 & 140/2 NH-72 situated at Arkedia Grant, Prem Nagar, Dehradun with costs quantified at Rs. 10,000/-."

2. Petitioner has alleged wilful disobedience of the aforesaid judgment by making following statements in para 17 & 18 to the contempt petition:-

"17. That despite of the fact and knowledge of the order dated 18.12.2017, the opposite party on 04.01.2018 has issued a notice to the applicant directing the applicant to remove the constructed a Petrol Pump Shed in Khasra No. 140/1 & 140/2. A photocopy of the notice dated 04.01.2018 is attached herewith as Annexure No. 2 to this affidavit.

18. That the applicant replied the said notice vide on 10.01.2018 and clearly stated that the applicant has not constructed any shed and has raised only temporary shelter. A true copy of the reply dated 10.01.2018 is attached herewith as Annexure No. 3 to this affidavit."

3. Objection affidavit has been filed by Mr. Zakir Hussain, Chief Executive Officer, Cantonment Board, Garhi Cantt., Dehradun. In para 12 of the said affidavit, it has been stated that he has not made any interference in running petitioner's petrol pump outlet. In para 11 of the said affidavit, it has been alleged that under the garb of judgment, rendered by learned Single Judge of this Court, petitioner started raising construction illegally, without getting mandatory sanction under Section 238 of the Cantonments Act, 2006 from the Cantonment Board.

4. Consequently, notice was issued to the petitioner on 04.01.2018, and thereafter, pursuant to a Resolution passed by Cantonment Board, demolition notice dated 26.05.2018, under Section 248(2) of the Act, was issued to the petitioner. By the said demolition notice, petitioner was asked to remove his construction admeasuring 3000 Sq. Ft., within thirty days from the date of receipt of notice.

5. Since the judgment rendered by Writ Court is absolutely silent about the construction, if any, made by the petitioner and it is a fact that petitioner was not granted any sanction by the Cantonment Board for raising construction, therefore, the notice issued under Section 248(2) of the Cantonments Act, 2006 to the petitioner would not amount to wilful disobedience.

6. Mr. Rajendra Dobhal, learned Senior Advocate appearing for the petitioner has apprised the Court that Cantonment Board has challenged the said judgment in appeal, which is pending before the Division Bench of this Court.

7. In such view of the matter, the contempt petition is closed. Notice issued to the opposite party is hereby discharged.

8. However, petitioner shall be at liberty to file an appeal under Section 340 of the Cantonments Act, 2006 before the appropriate forum, within three weeks from today. If such appeal is filed within stipulated time, the same shall be considered on merits.

(MANOJ KUMAR TIWARI, J.) Aswal