JUDGMENT Hon’ble D.P. Singh, J.—Heard Sri R.N. Singh, Senior Advocate assisted by Sri Isa Khan for the applicant and Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena, learned Counsel for the opposite party. 2. This contempt petition has been filed by a Statutory Authority i.e. Cantonment Board, Meerut through its Executive Officer. It is alleged that in spite of the injunction order dated 27.1.2005 as extended from time to time passed in writ petition No. 3526 of 2005, the opposite parties have raised constructions and in fact had constructed a huge building in the nature of a shopping Mall over the disputed land. 3. Bungalow No. 176 and 176 A-C admeasuring to about 0.436 acres is situated at Chappel Street in the Meerut Cantonment and is maintained under the Cantonment Land Administration Rules, 1925 and thereafter under 1937 Rules. The said bungalow is reflected in the general land register as survey No. 357/1749 and is classified as B-3 and it stands in the name of Smt. Berma Devi wife of Om Prakash, Prem Prakash, Ashok Kumar and Kishan Kumar, who are holders of occupancy right as old grant. 4. During the inspection of the said premises by the officials of the Board, it was found that the opposite parties who were neither recorded nor had any licence or lease over the said bungalow were engaged in fresh erection over the premises without there being any building plan sanctioned or approved by the Board. After preparing a due report with sketch plan etc., proceedings under the Cantonment Act, 1924 were initiated. When the constructions did not cease an order for sealing the premises was passed under the Public Premises Act on 19th August, 2004. However, the seal was broken and a first information report to the aforesaid effect was lodged on 27th November, 2004. Nevertheless, aggrieved against the said sealing order the opposite party preferred a Miscellaneous Appeal No. 116 of 2004 before the Additional District Judge, Meerut. The said appeal was allowed on a technical point but holding that in case any constructions are made the Board may take consequential legal action. The Board aggrieved against the said order preferred the aforesaid writ petition where the said injunction order was passed. The operative portion of which is quoted below : “Till the next date of listing, respondent Nos. The Board aggrieved against the said order preferred the aforesaid writ petition where the said injunction order was passed. The operative portion of which is quoted below : “Till the next date of listing, respondent Nos. 2 and 3 are restrained from making any further construction over property in question.” 5. This order was extended from time to time. 6. It is alleged that in spite of the aforesaid injunction when the officials of the Board inspected the premises on 23rd February, 2005 work was going on and the officials were restrained from entering the premises. However, a report and map was prepared and is annexed with the contempt petition. 7. Upon issuance of notice, the opposite parties have filed their counter affidavit stating that no construction were either made earlier to the injunction nor after the injunction and in fact the old house was being repaired. This consistent stand runs throughout the counter affidavit. This stand was vehemently denied by the Counsel for the Board. Therefore, on the request of the parties, a two members commission of two learned Advocates of this Court was appointed by the order dated 26th May, 2006. 8. In pursuance of the aforesaid order two learned Commissioners have submitted a report dated 10th July, 2006 stating that instead of any bungalow a huge shopping Mall had been constructed over the disputed land and in fact the constructions were still going on. Along with the report two sets of photographs were also produced. Copy of the report and the photographs were supplied to the Counsel for both the parties when they requested to file objections to the aforesaid report which was granted and the matter was fixed for 27th July, 2006 and both the opposite parties were directed to appear. 9. When the matter was taken up on 27th July, 2006 none of the two opposite parties were present, but exemption applications on their behalf was filed. Sri S.C. Mandhyan, learned Counsel for the opposite party stated that he does not wish to file any objection to the Commissioners’ report and in fact he has stated that the opposite parties have admitted the construction but he explained that they could not understand the import of the injunction of this Court and prayed that the Court may take a lenient view and discharge them. On a query of the Court that the opposite party should first purge the contempt before asking for mercy, initially Sri Mandhyan stated that his clients are prepared to demolish the building, but on the advice of the Court that he should once again seek instructions on this issue, he sought adjournment for today to enable him to confirm it with the two opposite parties once again. 10. Whereafter, a new set of lawyers viz. Sri P.N. Saxena, learned Senior Advocate and Sri Amit Saxena another Advocate were engaged replacing Sri Mandhyan without filing any no objection from him or without obtaining the permission of the Court to change Counsel midstream. However a supplementary affidavit was filed explaining away the statements made earlier and as such a detailed order was passed on 8.8.2006 summoning the opposite party 2. When the matter was taken up on 24.8.2006 a day’s time was granted to own up statement made in the supplementary affidavit filed earlier through a proper affidavit. The said affidavit has been filed. 11. It would be appropriate to mention the stand taken by the respondents in their respective counter affidavits filed on 8 7.2005. 12. In the affidavit of opposite party No. 1, as observed hereinabove the consistent stand was that no new constructions were raised. In paragraph No. 13 of the said counter affidavit it was stated that : “It is specifically stated that the answering respondents have not raised any new construction as the bungalow is purchased by the answering respondents for their residing and are in dilapidated condition, which is also mentioned in the sale deeds. They have only made repairs so that the building may become habitable. The inspection report has been manipulated by the office of the Cantonment Board, just to demolish the valuable constructions of the answering respondents”. 13. Again in paragraph 14 it was stated that : “As stated above, the answering respondents are not raising any new constructions, only renovation was being done by them. As such there was no question of getting any map sanctioned from the applicant. The false report has been submitted by Mr. Yadav on extraneous considerations. 13. Again in paragraph 14 it was stated that : “As stated above, the answering respondents are not raising any new constructions, only renovation was being done by them. As such there was no question of getting any map sanctioned from the applicant. The false report has been submitted by Mr. Yadav on extraneous considerations. The appeal of the answering respondents under Section 274 of the Cantonment Board Act is still pending, therefore, even otherwise, it is yet to be determined that whether the answering respondents have raised any new construction by the Authority which is admittedly managing the land in dispute.” 14. In paragraph 23 it was stated that : “However, as stated above, the answering respondents have not raised any constructions after passing of the order, even before that no new constructions were made only repairs were done to make the building habitable and waterproof.” 15. It was reiterated in paragraph 25 to the following effect : “As stated above, no new constructions were being made by the answering respondents.” 16. Likewise throughout in the counter affidavit it is stated that the applicants and its officers are harassing the opposite parties for oblique motives. 17. In the counter affidavit sworn by opposite party No. 2 it is stated in paragraph 3 that; “The answering respondent has not raised any constructions before or after the order dated 27.1.2005 was passed. Only minor repairs were made in the building just to make it airy and waterproof.” 18. And she adopts the statement of fact made in the counter affidavit of opposite party No. 1 by the following averments made in paragraph 4 : “The detailed reply to the contempt petition has been submitted by respondent No. 1 Smt. Sudarshan Mala Jain as such the deponent of this affidavit adopts the counter affidavit filed by Smt. Sudarshan Mala Jain the respondent No. 2.” 19. In the affidavit filed today it is stated that the two opposite parties have no role in purchasing the property or in utilizing it. In the affidavit filed today it is stated that the two opposite parties have no role in purchasing the property or in utilizing it. In paragraph 5 it is stated that : "Male member of the deponent family Sri Ratan Lal Jain and Pankaj Kumar Jain and other purchaser of the property namely Sri Anil Kumar Jain and Sri Raj Kumar Jain took decision to construct a shopping complex alongwith residential portion and the deponent is informed that completely new building commercial-cum-Residential was constructed in place of old bungalow and shops”. 20. It is further stated that no construction was made after the building was sealed in August, 2004 till date. She has also stated that she never came to Allahabad before 23.8.2006 and had not instructed Sri Madan Gopal, deponent of the earlier supplementary affidavit, that any new construction has been made after the interim order. 21. Let us examine the veracity of the statement. 22. In paragraph 27 of the petition a reference has been made of a map which was prepared after inspection on 23.2.2005 and the only objection is that it was not prepared in the presence of the opposite parties. The said map was prepared in the official course of business for the purposes of proceedings drawn for taking action for illegal construction by officers of a Statutory Body against whom there is no credible evidence of being malicious or biased against the deponent. This map can be taken into account. 23. In this map 39 shops with two stair cases and two open spaces have been shown which is also reflected in the report of the learned Commissioners. Thus, it can safely be presumed that the said constructions were made prior to this Court’s injunction. However, from the said map it is also clear when compared with the report of learned Commissioner that on the first floor one restaurant and at least seven shops were constructed after the injunction. Likewise two halls, four rooms and four toilets were also constructed on the second floor after the injunction. Similarly, till the grant of injunction, no constructions were made on the third floor before the injunction. 24. From the record itself it is well established that in fact the constructions were going-on even after the injunction. Likewise two halls, four rooms and four toilets were also constructed on the second floor after the injunction. Similarly, till the grant of injunction, no constructions were made on the third floor before the injunction. 24. From the record itself it is well established that in fact the constructions were going-on even after the injunction. The aforesaid can be easily deduced when the extent of construction shown by the Commissioner is, read together with the report of the Commissioners. The Commissioners found the constructions as under : Ground Floor 1. 39 shops in various names. 2. 2 Stair Case. 3. One lift 4. Two open to sky spaces. First Floor 1. 24 shops. 2. One restaurant. Second Floor 1. One restaurant. 2. Two halls. 3. Twelve rooms 4. 12 Toilets Third Floor 1. 31 incomplete (half constructed) pillars (9 x 18 and 18 x 18 inch) 2. Mumpty/Tank 3. Unplastered newly constructed walls about 10ft. height at North and South side of building”. 25. As noted above, the opposite party was given chance to purge the contempt before praying for mercy. This opportunity was misused. By changing Counsel midstream she seeks to carve out a completely new case and instead of bona-fidely approaching this Court and making a fair statement about the constructions made after the injunction, she seeks to wriggle out from the admission of violation of the order as conveyed to the Courts and throws the onus on the applicant to specify the constructions so that it could be demolished. She has also feigned that she has any knowledge of the new constructions which she admits were being made by her male family members. She is permanent resident of Meerut and construction of Mall was on her property but yet she says that she did not know about the fresh constructions and swears false affidavits of repairing of an old Bungalow. 26. It is fully established from the record that the constructions made as noted earlier were in wilful and deliberate violation of the interim order of this Court and as such, for the reason given above, the opposite party No. 2 is found guilty of wilful and deliberate violation of the writ order dated 27.1.2005 passed in writ petition No. 3526 of 2005. 27. Heard Counsel for the parties on the question of sentence. 28. 27. Heard Counsel for the parties on the question of sentence. 28. Learned Counsel for the contemnor has urged that she is a lady and was not directly involved in the construction and therefore her unconditional apology may be accepted and only fine be imposed. 29. It has already been found hereinabove that she was given an opportunity of purging the contempt but she misused that opportunity by raising an untenable defence. From the record, it is established that she has filed a false affidavit by saying that neither any new constructions were ever raised before the injunction order of even after it when the fact of the matter was completely otherwise. She has knowingly filed a false affidavit misleading the Court and her demeanor of changing stands does not qualify for taking any lenient view. It is settled law that even an unconditional apology can be refused to be accepted especially when it is used to thwart the consequence of the deliberate action. The present case is one of those cases where if any leniency is shown it would send out a bad signal to the people at large that such blatant violation of injunction of the High Court invites only a fine. Thus, this is not a case for punishment by fine only. 30. In the background of all these facts and fact that such a huge Mall has been constructed in a restricted area of the Cantonment Board which admittedly, is illegal as no sanction of building plan was sought or given by the Cantonment Board, it requires award of maximum punishment for two months simple imprisonment. 31. It is not disputed that no building plan was submitted or sanctioned by the Cantonment Board and it is also admitted that no constructions can be made without prior approval of building plan, the entire building is illegal. It stands on old grant and belongs to the Department of Defence, Government of India. 32. The question is, while exercising the contempt jurisdiction, can be contempt Court issue any writ on these facts? 33. It stands on old grant and belongs to the Department of Defence, Government of India. 32. The question is, while exercising the contempt jurisdiction, can be contempt Court issue any writ on these facts? 33. The Apex Court in Special Leave Petition (Criminal) No. 585 of 2004 (Smt. Shail v. Manoj Kumar and others) decided on 29.3.2004 by a Bench of three Judges, after relying upon an earlier judgment in the case of Surya Dev Rai v. Ram Chandra, AIR 2003 SC 3044 held that even while exercising contempt jurisdiction, the High Court could exercise the powers under Article 226. Similarly, a Full Bench decision of the Madras High Court in Vidya Charan Shukla v. Tamil Nadu Olympic Assocation and others, AIR 1991 Mad 323 , after relying upon Apex Court judgment in Sukhdev Singh v. Hon’ble the Chief Justice Teja Singh, AIR 1954 SC 186 held that the High Court even in contempt jurisdiction can pass appropriate orders referable to Articles 226 and 227 of the Constitution of India. A Division Bench of our Court in Smt. Abida Begum v. R.C.E.O., AIR 1959 All 657 has held that even while exercising appellate jurisdiction, the Court could in exceptional cases, exercise the powers under Article 226 of the Constitution of India. 34. In view of the aforesaid, though Court is empowered to demolish the entire building as it is held illegal, it refrains itself because it has come on record that demolition proceedings are under way. Nevertheless, the Court is obliged to restore the position as on the date of injunction. The Cantonment Board, Meerut is directed to demolish all those constructions and improvements which have been made after the injunction order dated 27.1.2005, some of which have already been noted in the body of this judgment. The Senior Superintendent of Police, Meerut shall provide sufficient and adequate police force to the Cantoment Board for the aforesaid purpose, forthwith. Further, since the building is totally illegal, the Cantonment Board shall seal it to await the outcome of the demolition proceedings and for this purpose also the Senior Superintendent of Police, Meerut shall provide adequate and sufficient police force. 35. The Cantonment Board was saddled with remuneration of the two learned Commissioners of this Court on account of the bald denial of construction by the opposite party and which also suffered the expenses of boarding and lodging. Therefore, Rs. 35. The Cantonment Board was saddled with remuneration of the two learned Commissioners of this Court on account of the bald denial of construction by the opposite party and which also suffered the expenses of boarding and lodging. Therefore, Rs. 50,000/- is awarded to the Cantonment Board to defray the aforesaid expenditure. This amount shall be paid by both the opposite parties 1/2 each to the Board within one month from today failing which the same shall be recovered as arrears of land revenue by the Collector, Meerut within a further period of one month and paid to the Cantonment Board under intimation to this Court. 36. At this stage an application for suspending the punishment awarded has been made as the contemnor intends to file an appeal. Considering the entire facts, it is not a fit case where the prayer should be granted. Thus, the application is rejected. 37. For the same reason the opposite party No. 1 is also found guilty but looking to her age and her condition as reflected in the photograph, she is punished with fine of Rs. 2,000/- payable within a month to the High Court Legal Services Committee Allahabad. Further, she is liable to pay damages to the tune of Rs. 50,000/- to the Cantonment Board within one month, failing which it would be recovered from her as arrears of land revenue and paid to the Board by Collector, Meerut within the next one month. 38. With the aforesaid direction, this contempt petition is finally disposed off. Order Accordingly. ———