VIREN SINGH vs MADHUP VYASF & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 22 November 2023
Judgment pronounced on : 13 December 2023
+ CONT.CAS(C) 474/2018
VIREN SINGH ….. Petitioner
Through: Mr. Rakesh K. Khanna, Mr.
Aditya Archiya and Ms. Sakshi
Sharma, Advs.
versus
MADHUP VYASF & ORS. ….. Respondents
Through: Ms. Puja Kalra, Adv. for MCD
with Mr. Jain, A.E.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. The present petition under Section 11 read with section 12 of
the Contempt of Courts Act, 19711, is filed by the petitioner, alleging
that the respondent officials of the erstwhile North Delhi Municipal
Corporation, since renamed Municipal Corporation of Delhi2 have
committed the contempt of the order/directions dated 30.11.2017
passed by this Court in the writ petition W.P. (C) 7821/2017 and
subsequent directions contained in the order dated 26.02.2018 in
CONT. CAS (C) 138/2018.

1 CC Act
2 MCD

FACTUAL BACKGROUND:

2. Shorn of unnecessary details, the petitioner acquired ownership
title of terrace/roof rights of the suit property from his sister, who was
the owner with terrace/roof rights of the second floor of this property.
She sought sanction of the building plan for 3rd floor on this property
and the same was declined by the respondent vide communication
dated 19.07.2017 on the ground that floor-wise sanction/regularisation
could not be approved. The same was challenged in the writ petition
W.P. (C) 7821/2017, wherein while relying upon Harish Bajaj and
Anr. v. North Delhi Municipal Corporation3, vide order dated
30.11.2017 , the following directions were passed: –

3 2017 SCC OnLine Del 2459.

“In view of the foregoing, communication dated 19.07.20I7 is set
aside and quashed and the writ petition is disposed off with a
direction to the respondent to process the application of the
applicant for sanction of the building plans, within four weeks from
today. It is made clear that the application would be processed in
consonance with the prevalent building bye-laws and MPD-2021,
but, for the insistence of NOC of the co-owner. Petition and the
pending applications stand disposed off accordingly.”

3. Aggrieved by non-compliance of order dated 30.11.2017 on the
part of the officials of respondent, the petitioner filed contempt
petition being CONT. CAS (C) 138/2018 wherein learned counsel for
respondent submitted that the application of the petitioner for sanction
of building plan was under consideration and decision of the same
would be conveyed to the petitioner. This Court disposed of the matter
giving the following directions vide order dated 26.02.2018: –

“…Ms. Puja Kalra, learned counsel appearing for the respondents
on the advance notice states, the application of the applicant for
sanction of building plans is under consideration and the decision
and communication thereof shall be taken /sent to the petitioner
within three weeks/one week from today.
Noting and binding the respondents to the statement made by their
counsel, the contempt petition is closed. If the petitioner is still
aggrieved by any in action on the part of the respondents, liberty is
granted to the petitioner to revive this contempt petition.”

4. Eventually, the respondent MCD vide communication4 dated
25.04.2018 has rejected the application of petitioner for sanction of
construction on the 3rd floor of the subject property inter alia stating
that their decision is based upon consideration and scrutiny of the
application in consonance with prevalent building bye-laws and MPD
2021, on the grounds enlisted as follows: –

4 D/AE(B)/KBZ/2018/642

“1. No sanction building plan of the existing construction has been
submitted.
2. There is no structural stability certificate available on records
as such to prove that the entire structure from ground to second
and proposed third floor would be safe/stable structurally post
construction of the third floor.
3. As per plan, there is infringement of front set back at GF, FF
and SF which is not permissible.
4. The site has been inspected and it is found that there are
projection on public land in the side lane at GF, FF and SF
which is not permissible.
5. Existing construction at Third Floor has not been mentioned,
in the proposal.”

5. It is the case of the petitioner that on receiving the aforesaid
order dated 25.04.2018, she submitted point-wise reply vide letter
dated 08/09.05.2018 wherein she made a representation as under:-

“ (1) Firstly the sanction building plan for the existing construction
is available in the record of the respondent Corporation [ North
Delhi Municipal Corporation (NDMC)], as it was submitted by the
original owner of the building B-165, NarainaVihar, Mrs. Manjit
Chawla at the time of seeking the permission/approval of the
construction of the building in the year 2006 and further for
seeking regularization of the building the year 2007
(2)Secondly the structural stability certificate is also available with
the NDMC, as it was submitted by the original owner Mrs. Manjit
Chawla at the time of seeking permission for the
construction/regularization of the building
As far as, the applicant is concerned, structural stability
certificate had already been submitted. In any case, another
structural stability certificate dated 02.05.2018 is enclosed (in
original)
(3) Thirdly the applicant has nothing to do with the infringements
of front set -back at GF,FF and SF, as it has not been done by the
applicant. It is also mentioned that the NDMC has already initiated
action vide their notice dated 06.09.2017 for the infringements
against the sanctioned building plan (70/B/KBZ/2006 DA DATED
01.09.2006) However, NDMC is aware that the original owner
Mrs. Manjit Chawla had paid/deposited an amount of Rs.89,500/-
vide receipt no. 489060 dated 07.09.2007 for the regularization of
the infringements, if any (copy enclosed).
(4) Fourthly the applicant has nothing to do with the alleged
projections, if any, on the public land in the side lane of GF/FF
/SF. However submitted earlier the original owner Mrs. Manjit
Chawla has already paid/deposited an amount of Rs.89,500/- for
the regularization for the regularization charges of the building in
the year 2007. Further it is mentioned that the inspection of the
building has neither been done with prior notice of the applicant
nor the applicant was present during inspection.
(5)Fifthly the building map/proposal showing the existing/propose
construction at the third floor is enclosed (in original).”

6. Aggrieved that there was no response to her representation by
the respondents, by filing the instant petition the petitioner is seeking
action against the respondent No.1 Sh. Madhup Vyas who was then
the Commissioner, NDMC/ MCD as also respondent No.2 Sh. Nitin

Promod, Deputy Commissioner, MCD, besides the Superintendent
Engineering & Assistant Engineer of the MCD.
7. On notice, the respondents stated that the petitioner should have
sought redressal under Section 347B (f) of Delhi Municipal
Corporation Act,19575 since the only remedy is to file statutory appeal
with the Appellate Tribunal against the impugned order dated
25.04.2018. In the same vein, it is stated that the impugned letter of
rejection by respondent MCD cannot be said to be in wilful violation
of orders dated 30.11.2017 and 26.02.2018, and if the petitioner
wishes to contest the merits of such communication, the same cannot
be done by filing a contempt petition. The respondents argue that the
petitioner is misleading this Court by pressing the claim that the court
vide order dated 30.11.2017 directed for sanction of the proposed 3rd
floor on the subject property when in contrast the direction was to
process the application by petitioner in consonance with building bye-
laws and MPD 2021. Since the same has been complied with, the
respondent is not in contempt.

LEGAL SUBMISSIONS ADVANCED AT THE BAR:

8. Sh. Rakesh Khanna, learned Senior Counsel for the petitioner
firstly pointed out that the despite directions of this Court dated
31.01.2023, directing the NDMC/MCD to submit relevant MCD bye-
laws pursuant to which sanction for floor wise construction has not
been accorded, has not been complied with. Alluding to order dated
30.11.2017, it was urged that the plea of the respondent MCD that
floor wise sanction could not be granted was categorically discarded

5 DMC Act

and in as much as this Court not only did away with the grant of NOC
from the other co-owners of the building but also held that different
parameters for grant of sanction should be applied in respect of each
floor of the building. It was urged that there are vested horizontal
rights in favour of the petitioner to seek sanction for constructions of
her floor and the respondent officials are unlawfully linking the issue
of permissible construction by conjointly reading the parameters with
respect of the entire building which is an occupation of different co-
owners and over which the petitioner has no control.
9. At the cost of the repetition, it was urged that the petitioner
should resort to filing an appeal under Section 347B (f)(o) of the
DMC Act and the learned counsel for the respondent submitted that
they have already filed two status reports on the record in the form of
affidavit dated 04.07.2018 as also dated 22.05.2023 along with
photographs. It is reiterated that building plan for addition/alteration
had been sanctioned vide File No.70/B/KBZ/2006/75 dated
01.09.2006 for construction of ground floor, 1st floor and 2nd floor
over a plot area of 122.15 sqm with permissible ground coverage and
FAR @ 66.66% and 200% respectively, which is in accordance with
permissible coverage as per the MPD 2021 and for the reasons stated
in the letter dated 25.04.2018, sanction cannot be accorded.

ANALYSIS AND DECISION:

10. Having given my thoughtful consideration to the submissions
made by learned counsels for the parties and on perusal of the record,
this Court is unable to be persuaded that the officials of the respondent

MCD are not in contempt or that they have exercised their powers
bonafidely in passing the impugned order dated 25.04.2018.
11. The CC Act envisages a civil contempt which should
demonstrate a wilful disobedience of a decision of the Court. The
discretion given to the court is to be exercised for maintenance of the
dignity of the court and majesty of law. Avoiding a long academic
discussion, in the cited case of Dr. U.N. Bora, Ex. Chief Executive
Officer & Ors. v. Assam Roller Flour Mills Association & Anr.6,
after examining a plethora of case law on the subject, it was stated
that: –

6 (2022) 1 SCC 101

“Thus, in order to punish a contemnor, it has to be established that
disobedience of the order is “wilful”. The word “wilful”
introduces a mental element and hence, requires looking into the
mind of a person/contemnor by gauging his actions, which is an
indication of one’s state of mind. “Wilful” means knowingly
intentional, conscious, calculated and deliberate with full
knowledge of consequences flowing therefrom. It excludes
casual, accidental, bona fide or unintentional acts or genuine
inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a “bad purpose or
without justifiable excuse or stubbornly, obstinately or
perversely”. Wilful act is to be distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently. It does not
include any act done negligently or involuntarily. The deliberate
conduct of a person means that he knows what he is doing and
intends to do the same. Therefore, there has to be a calculated
action with evil motive on his part. Even if there is a
disobedience of an order, but such disobedience is the result of
some compelling circumstances under which it was not possible
for the contemnor to comply with the order, the contemnor cannot
be punished. “Committal or sequestration will not be ordered
unless contempt involves a degree of default or misconduct.”
{bold letters emphasized}

12. It is also well ordained in contempt jurisprudence that the Court
has to consider the direction issued in the judgment or order. In the
instant matter, based on the decision in the case Harish Bajaj (supra),
which judgment elaborated on the subject law, there were categorical
directions that the representation of the petitioner shall be considered
as per the law. The ratio of the cited case was unequivocal that floor-
wise sanction is permissible in law. There was no ambiguity in the
directions passed.
13. Viewed from the said legal compass, ex facie, the reasons
advanced by the officials of the respondent in their rejection letter
dated 25.04.2018 are wrong and false, and evidently scant regard has
been accorded to the directions of the Court. Merely because an
efficacious remedy would be available in the form of an appeal under
the DMC Act, the jurisdiction of this Court under the CC Act, would
not cease. In the case of Maruti Udyog Ltd. v. Mahinder C. Mehta
& Ors.7 , it was held that irrespective of whether or not a decree is
executable, the question to be considered by this Court in determining
whether a case for contempt has been made out was, whether, the
conduct of the contemnor was such as would make a fit case for
awarding punishment for contempt of court.
14. In the instant matter, the respondent officials manifestly
committed mischief, which is exemplified not only from their letter
dated 25.04.2018, but also from the tone and tenor of the two status
reports-cum-affidavits dated 04.07.2018 and 22.05.2023,which

7 (2007) 13 SCC 220

ostensibly amounts to throwing challenge to the merits of the order
dated 30.11.2017. The respondents have not cared even to respond to
letter dated 08/09.05.2018 and the manner in which the representation
of the petitioner has been dealt with, leaves much to be desired as it is
but obvious that they have in their possession the documents which
were referred in their rejection letter dated 25.04.2018. Neither did
they bother to call upon the petitioner to submit such documents
afresh nor was she afforded a hearing.
15. To my mind, it is too late in a day to canvass the point that a
remedy lies under Section 347B (f) of the DMC Act. This Court is
not oblivious of the ground situation as to rampant unauthorized
construction allowed by the official of the MCD under their very
noses and ill motivated selective applications of laws thereby
harassing and tormenting innocent people. The petitioner is one such
lady who wants to raise construction as per law and her legitimate
expectations have been dealt with a death blow. The respondents
officials are expected to discharge their duties in a manner which
inspires confidence of the people. The manner in which the impugned
rejection letter dated 25.04.2018 is couched demonstrates complete
lack of sincerity, honesty and fairness. There is no case law brought to
the notice of this court that floor-wise sanction is not permissible in
Delhi. In light of the above, their status reports-cum-affidavits dated
04.07.2018 and 22.05.2023 which seek to re-agitate the issues settled
vide order dated 30.11.2017 must be discarded in toto.
16. Learned counsel for the respondents in her submissions has

relied upon decisions in Abhendra Kumar Jain v. B.K. Gupta8 and
Jhareswar Prasad &Anr. v. Tarak Nath Ganguly & Ors.9, so as to
buttress the point that there has been no contumacious or wilful
disobedience on the part of the officials of the MCD and also to put
weight to the plea that the Court cannot, in the guise of jurisdiction,
grant substantive relief not covered by the order/judgment, which is
subject matter of contempt proceedings.
17. I am afraid that both the cited cases are clearly distinguishable
on the facts for the reasons stated above. At the cost of repetition,
there is a clear attempt by the respondent officials to go beyond the
order dated 30.11.2017 and they have not cared to give effect in letter
and spirit to the directions passed by this Court.
18. Therefore, I have no hesitation in holding that the respondent
officials have brazenly and audaciously not complied with the letter
and spirit of the directions passed by this Court dated 30.11.2017. Five
long years have gone by and the respondent officials force the
petitioner back to square one. Leaving aside the two years of COVID-
19 Pandemic period, the respondents have unreasonably delayed the
entire decision making process. This Court finds the respondents
guilty of committing contempt of the directions of this Court.
19. Hence, notice be issued to the respondent official to show cause
as to why they should not be punished for committing the contempt of
the directions of the Court dated 30.11.2017. They are directed to
appear before this Court on 16.01.2024 for a hearing.

8 108(2003) DLT 734
9 (2002) 5 SCC 352

20. In the interregnum, the respondents are directed to review the
order dated 25.04.2023 and consider the reply of the petitioner dated
08/09.05.2018, and pass a reasoned order after affording her, or her
authorised representative an effective hearing. This whole exercise be
conducted on or before the next date of hearing, for which a status-
cum-compliance report be filed on or before the next date of hearing.
21. Copy of this order be given dasti under the signatures of the
Court Master to the learned counsel for the respondent officials for
necessary compliance.
22. Re-notify on 16.01.2024.

DHARMESH SHARMA, J.
DECEMBER 13, 2023
Sadique/sp