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2001 DIGILAW 526 (ALL)

MOHD. ZAHEER SIDDIQUI v. MOHD. UMAR

2001-05-21

BHANWAR SINGH

body2001
BHANWAR SINGH, J. ( 1 ) THIS contempt petition has been filed under Section 12 of the Contempt of Courts Act, 1971, for the willful contempt, alleged to have been committed by the opposite parties, of the order dated 17. 5. 1978 passed by the Sessions Judge. Barabanki and the order dated 23,12. 1999 issued by this Court. ( 2 ) IN short, the petitioners case is that they and their ancestors have been in possession of the sahan land as shown in the sketch map, Annexure-1. from the times immemorial. To the south of the petitioners sahan land is an open pathway and to the further south thereof, the land of galla mandi lying vacant. In the year 1977. one Atahar All. a local politician, who harboured ill-will against the petitioners and their father, made an attempt to create a bogus dispute that the land of the courtyard and that of the pathway was part and parcel of galla mandi. At the instance of the said Atahar All. the Sub-Divisional Magistrate, who was also the then Administrator of the town area, initiated proceedings under Section 133. Cr. P. C. against the petitioners father on the basis of there being alleged obstruction on the public land. The petitioners father denied the allegation of there being any public land in north of the pathway but the Sub-Divisional Magistrate rejected his claim aide order dated 24. 12. 1977. The petitioners father was compelled to file a revision against the order dated 24. 12. 1977 passed by the Sub-Divisional Magistrate. The Sessions Judge, barabanki allowed the revision vide judgment dated 17. 5. 1978 and stayed the proceedings which could not be carried out until the existence of any public right was established by the decree of a competent civil court. In view of the said judgment, the Town Area Committee filed a civil suit against the petitioners father in the Court of Munsif, Ram Sanehi Ghat, which was decreed and even the first civil appeal preferred against the Judgment was dismissed. Being aggrieved against the said decrees, the petitioners father filed Second Appeal No. 329 of 1984, which is still pending before this Court. Vide order of May 15, 1984, the operation of both the Judgments and decrees was stayed by this Court. Being aggrieved against the said decrees, the petitioners father filed Second Appeal No. 329 of 1984, which is still pending before this Court. Vide order of May 15, 1984, the operation of both the Judgments and decrees was stayed by this Court. As the second appeal is pending and the interim order is operational, the Town Area Committee had no authority to take the law into their own hands and forcibly dispossess the petitioners from their sahan land. In spite of the fact that there was a stay order of the Court, the officers and the contractor of the Town Area Committee interfered with the petitioners peaceful possession over the land in dispute on 20. 12. 1999 by unloading mounds of sand and bricks. The petitioners warned the contractors and the officers of the Town Area committee and apprised them of the order of May 17. 1978. of the Sessions Judge and also the order dated 15. 5. 1984 passed by this Court. However, the contractor, with a view to harass the petitioners appeared bent upon flouting the orders. Under these circumstances, the petitioners were obliged to file a Writ Petition bearing No. 5713 (M) of 1999 which was dismissed by this court on 23. 12. 1999 with a direction to both the parties to maintain status quo for six weeks. The petitioners could not obtain a certified copy of the said order as the Court was closed for winter vacation, and it was only after the Court was opened in the first week of January. 2000. that they were able to obtain certified copy of the aforesaid order and then served it upon the opposite parties. In the meantime, the opposite parties were also conveyed orally the factum of the said order. The District Magistrate. Barabanki and the Sub-Divisional Magistrate. Barabanki. were also orally apprised of the said High Courts direction but this too did not yield any result. Obviously thus the opposite parties have committed blatant and contemptuous disobedience of the orders of this Court as well as that of the Sessions Judge. ( 3 ) THE opposite parties filed their separate counter-affidavits denying the allegations of the petitioners. Barabanki. were also orally apprised of the said High Courts direction but this too did not yield any result. Obviously thus the opposite parties have committed blatant and contemptuous disobedience of the orders of this Court as well as that of the Sessions Judge. ( 3 ) THE opposite parties filed their separate counter-affidavits denying the allegations of the petitioners. The opposite party No. 2 Arshad All, who was the contractor of the Town Area committee, asserted in his counter-affidavit that he filed his tender regarding the earth work brick soaling and nali works upon the land of Grain Market. His tender was accepted by the town Area Committee, Dariyabad and he was asked to take up the work and complete it by 31. 12. 1998. In order to carry out the directions and further to comply with the contractual obligations, he started the work, did it day and night and completed it on 27. 12. 1999. The measurement of the work was conducted by the Junior Engineer and he submitted his final bill. He received his payment by cheque on 31. 12. 1999. Arshad AH denied specifically that he was ever communicated by the petitioners of any Courts order. He also denied that any petitioner ever met him in this connection. ( 4 ) SRI Mohammad Umar. who is presently working as Chairman of the Town Area Committee, dariyabad, has also refuted the petitioners contention that he violated or committed contempt of any order passed either by this Court or any other Court. As asserted by him. the land shown in the site-plan is the land of the Town Area Committee, upon which the Grain Market exists and other fairs and public meetings, etc. are also organised on it from times immemorial. As a matter of fact, the whole land situated to the south of the petitioners is still in possession of the Town area Committee and the petitioners have no right to encroach upon it. The order of the Sessions judge, by virtue of which proceedings under Section 133. Cr. P. C. were stayed, came to an end when a civil court passed a decree of possession in favour of the Town Area Committee. The order of the Sessions judge, by virtue of which proceedings under Section 133. Cr. P. C. were stayed, came to an end when a civil court passed a decree of possession in favour of the Town Area Committee. The civil court gave a categorical finding that the disputed land belonged to the Town Area committee and the Committee had been holding Grain Market and realising Tehbazart, The petitioners father was directed to hand over to the Town Area Committee the possession over the piece of land on which he had raised illegal constructions. The civil courts decree was affirmed in appeal and the second appeal is still pending and the order regarding maintenance of status quo is still operative. The Town Area Committee has not in any manner interfered with the courts order. The petitioners are still in possession of a small piece of land of galla mandi. As the Government has sanctioned some budgetarial grant for the Town Area brick soaling. earthwork was carried out on the land of galla mandi and drains were also got constructed. The contractor Sri Arshad All. who was a tenderer, was asked to complete the work by the end of december, 1999 and he did it well within lime. The land, on which the work was carried out, was never subjected to any dispute nor the same was subject-matter of the civil suit. The Town area Committee left about 9 ft. land towards the south of the house of the petitioners. The drain was constructed towards south of the said leftover land for ingress and egress of the petitioners. No construction was raised on the petitioners land or the land, which was the subject-matter of dispute in the civil court. The entire work was done upon the land of Grain Market, which is still in possession of the Town Area Committee. The earth filling and scaling works as also the construction of drains were too executed with a view to solve the waterlogging problem in the grain Market. In this way. no contempt could be said to have been committed by any authority of the committee. ( 5 ) 1 have heard learned counsel for both the parties and perused the record. ( 6 ) IT is admitted to the petitioners that a decree was passed against their father Sri Saghir Ahmad. In this way. no contempt could be said to have been committed by any authority of the committee. ( 5 ) 1 have heard learned counsel for both the parties and perused the record. ( 6 ) IT is admitted to the petitioners that a decree was passed against their father Sri Saghir Ahmad. The said civil suit was filed by the Town Area Committee in the background of a litigation between the two parties, which was launched under Section 133 of the Cr. P. C. Saghir Ahmad challenged this proceeding in a revision filed by him in the Court of Sessions Judge, Barabanki and the learned Sessions Judge, vide his order of May 17, 1978, stayed the said proceedings till the existence of public right over the disputed land was decided by a competent court. It is noteworthy that breach of the said order of May 17, 1978. has been alleged by the petitioners but their contention is devoid of merit as the operation of the said judgment came to an end when the civil court passed a decree in favour of the Town Area Committee. A copy of the judgment of the Court of Munsif, Ram Sanehi Ghat. Barabanki is Annexure-2 to the counter-affidavit of the chairman, Town Area Committee Sri Mohammad Umar. A perusal of this judgment would reveal that the suit filed by the Town Area Committee was decreed with costs and the defendant, namely. Saghir Ahmad, the father of the petitioners was restrained from raising any construction on a piece of land shown by letters C. D. E. F. G. in the map attached with the plant. Further Sri saghir Ahrnad was directed to remove his constructions over another piece of land shown in the aforesaid map by letters A. B. C. D and. he was also directed to hand over possession thereof to the Town Area Committee. With the passing of this judgment, the operation of the order of the sessions Judge came to an end. The civil courts verdict was affirmed by the court of appeal vide its Judgment of 31. 1. 1984. he was also directed to hand over possession thereof to the Town Area Committee. With the passing of this judgment, the operation of the order of the sessions Judge came to an end. The civil courts verdict was affirmed by the court of appeal vide its Judgment of 31. 1. 1984. Even though the operation of the two judgments and decrees passed by the civil court and appellate court was stayed by an interim order of this Court on May 15, 1984, yet the Town Area Committee, its officers and contractor cannot be accused of any disobedience as the opposite parties have not dispossessed the petitioners from the small piece of land shown by letters A. B. C. D. Their structure over the said disputed land is still in existence and even the petitioners have not alleged that either the said structure has been demolished or the opposite parties have grabbed over the said land. The opposite parties have clearly admitted that they have executed the brick soaling work on the land of galla mandi by excluding the land which was subject-matter of the civil suit referred to above. It is important to note that there was no direction either of this Court or any other Court restraining the opposite parties from carrying out any construction activity on the land of Grain Market excluding the land which formed part of the subject-matter of civil litigation between the parties. The petitioners have filed some photographs in support of their case that the opposite parties did some earth filling work and constructed a kharanja thereon but there is nothing to indicate that the land which was in dispute between the two parties before the civil court has either been grabbed over by the opposite parties or they have raised any construction thereon. The opposite parties were fully competent to raise the level of the remaining piece of land of Grain Market with a view to facilitate all concerned. All the orders of the Courts including the one which was issued by this Court on 23. 12. 1999 pertain to the small fragment of the land which was in dispute in the civil litigation. The parties were asked vide order dated 23. 12. 1999 to maintain status quo over the disputed piece of land and not over the entire piece of land where the Grain Market subsists. 12. 1999 pertain to the small fragment of the land which was in dispute in the civil litigation. The parties were asked vide order dated 23. 12. 1999 to maintain status quo over the disputed piece of land and not over the entire piece of land where the Grain Market subsists. Even the petitioners have no claim over the land of galla mandi The land is still lying vacant of course with scaling brickwork. Some drains have been constructed with a view to discharge the used water. Further, it is admitted to the petitioners that they could not obtain a copy of the aforesaid order until the Court were open in the first week of January, 2000 and admittedly by then, the entire work of brick scaling was completed by the contractor. Even the payment had been made prior to the copy of the order being served upon the opposite parties. ( 7 ) HAVING regard to the established facts as disclosed above. 1 am of the decisive opinion that the opposite parties have not disobeyed any order of either this Court or that of the Sessions Judge, barabankl. And. therefore, they cannot be held to have committed any contempt. ( 8 ) IN the result, this contempt petition fails and deserves to be dismissed. Accordingly the petition is dismissed and the notices issued to the opposite parties stand discharged. .