*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +CONTEMPT CASE No.195 of 2011 % 27-8-2011 # Syed Ibrahim. … Petitioner Vs. $ Sri E.S.Naik, District Panchayat Officer, Ranga Reddy District, Nampally, Hyderabad and another. … Respondents ! Counsel for the petitioner: Sri A.Venkata Swamy Yadav. ^ Counsel for the respondents: None for R.1. Sri D.V.Sitarama Murthy, Senior Counsel appearing for Sri P.Raghavender Reddy, learned Standing Counsel for R.2. < Gist: > Head Note: ? Cases referred: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY SATURDAY, THE TWENTY SEVENTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN CONTEMPT CASE No.195 of 2011 Between: Syed Ibrahim. … Petitioner And Sri E.S.Naik, District Panchayat Officer, Ranga Reddy District, Nampally, Hyderabad and another. … Respondents Counsel for the petitioner: Sri A.Venkata Swamy Yadav. Counsel for the respondents: None for R.1. Sri D.V.Sitarama Murthy, Senior Counsel appearing for Sri P.Raghavender Reddy, learned Standing Counsel for R.2. This Court made the following: JUDGMENT:- Alleging willful disobedience of order, dated 11-2- 2011, in WPMP No.4000 of 2011 in Writ Petition No.3224 of 2011 by the respondents herein, the present Contempt Case is filed. The petitioner herein is the petitioner in Writ Petition No.3224 of 2011, which was filed challenging the action of respondent No.1 in ordering demolition of the wall of the petitioner’s house, vide: his order dated 28-9-2010, received by the petitioner on 10-2-2011 at 5 PM. The petitioner moved the said Writ Petition by way of a lunch motion on 11-2-2011. Sri P.Raghavender Reddy, learned Standing Counsel for the Gram Panchayat, took notice for respondent No.2 i.e., the Executive Officer, Shamshabad Gram Panchayat, and the learned Assistant Government Pleader for Panchayat Raj took notice for respondent No.1. While ordering notice to respondent No.3 and posting the case to 7-3-2011, this Court directed that the wall of the petitioner’s house bearing No.3-98, Qazi Gally, Shamshabad, Ranga Reddy District, shall not be demolished. In his affidavit filed in support of the Contempt Case, the petitioner alleged that there is a dispute regarding the wall, forming part of the petitioner’s premises, between him and respondent No.3, which has lead to filing of an appeal by the latter before respondent No.1; and that by order dated 28-9-2010 passed by respondent No.1, which was received by the petitioner on 10-2-2011, demolition of the wall was ordered. The said order was questioned in Writ Petition No.3224 of 2011, which came up before this court in the post lunch session on 11-2-2011 and that the interim order granted by this court was taken out through telegraphic order besides the petitioner approaching respondent No.1 at about 4-00 PM on the same day and submitting a letter informing him about the interim order. The petitioner further alleged that respondent No.2 and her staff came to his premises on 11-2-2011 at 3-00 PM and when they were preparing for demolition of the wall, his family members have protested by informing them that this court has granted stay of demolition. However, respondent No.2 and her staff have demolished a part of the wall and removed the asbestos sheets forming the ceiling till 7-00 PM. That, in the mean time, the petitioner, who has taken delivery of the wire order at 6-30 PM, went to the Charminar Telegraphic Office and immediately sent the same to respondent Nos.1 to 3 (respondent No.3 was subsequently deleted from the array of parties). It is further alleged that on 12-2-2011 respondent No.2 and her staff again came; and that despite showing the telegraphic order of this Court, respondent No.2 has refused to receive the same and instructed the officials of the Gram Panchayat to demolish the wall and take away the dismantled material through Gram Panchayat tractor. Then he immediately approached the RGIA Police Station and requested the Police to register a case against respondent No.2 and her staff, but the Police refused to entertain the same. The petitioner further alleged that on 14-2-2011 at about 12 Noon, respondent No.2 again came along with her staff in a car bearing No.AP 9 BD 3455 to his premises and demolished rest of the wall by 2-30 PM. The petitioner has, accordingly, alleged that despite having clear knowledge about passing of the interim order of stay of demolition by this Court, respondent No.2 has got the wall demolished, and, thereby, she, along with respondent No.1, committed serious violation of the order of this Court. Respondent Nos.1 and 2 filed separate counter- affidavits. In his counter affidavit, respondent No.1 has, inter alia, stated as under: Respondent No.3 filed an appeal before him that the petitioner has encroached 3 feet of land and constructed a wall over it. He allowed the said appeal on 28-9-2010 directing respondent No.2 to take action for demolition of the wall erected by the petitioner and restore the street. From the information furnished by respondent No.2 he has come to know that the former has issued office order dated 9-2- 2011 to her staff to comply with his order in the appeal by demolishing the wall. The staff of the Gram Panchayat went to the site for demolition of the 3 feet wall on 10-2-2011 and completed the same on 11-2-2011 in the early hours. The petitioner made a representation on 11-2-2011 in his office in the evening hours with a request to direct respondent No.2 to stop the demolition. At that time, he was in the chamber of the Honourable Minister for Panchayat Raj in connection with the hearing of cases and after perusing the letter submitted by the petitioner, he made a phone call to respondent No.2, who, in turn, informed him that in pursuance of the order passed in the appeal, she got the wall demolished on 11-2-2011 itself. Respondent No.1 has, accordingly, maintained that demolition of the wall was completed in the morning hours of 11-2-2011 i.e., even before passing of the order by this court. Respondent No.1 further stated that he has received the copy of telegraphic order of this court on 14-2- 2011 and the same was forwarded to respondent No.2, by which time, the demolition of the wall was completed. In her counter-affidavit respondent No.2, inter alia, stated as under: She has received order, dated 28-9-2010, of respondent No.1 through Special Messenger on 8-2-2011. She informed the petitioner about the order of respondent No.1 and asked him to take out the material belonging to him and co-operate in demolishing the 3 feet wall, which was agreed to by the petitioner and his son. On 9-2-2011 she issued office order to her office staff to demolish the 3 feet wall and submit the compliance report. The office staff, accordingly, demolished the 3’x10’ wall and the demolition was completed in the early hours of 11-2-2011 in the presence of the Police. After completion of the demolition, she received report of compliance from her staff on 11-2- 2011 itself and she, in turn, submitted compliance report to respondent No.1 on the same day. After demolition, the bricks and other waste material were removed by the Gram Panchayat staff. She has received the telegraphic order of this court through post on 14-2-2011 and that she has gone to the site for inspection by walk and not by car as alleged by the petitioner. She has disputed the authenticity of the photographs filed by the petitioner by raising the plea that the photographs were taken prior to the filing of the Writ Petition by manipulating the dates thereon with the aid of the computer. In the reply affidavit, the petitioner has denied the stand taken by respondent Nos.1 and 2 in their respective counter-affidavits. As there was serious controversy as to the dates on which the demolition has taken place, the parties were allowed to adduce oral evidence. On behalf of the petitioner, he examined himself as PW.1 besides examining PWs.2 to 6 on his side. He has filed Exs.A.1 to A.8. On behalf of the respondents, respondent No.2 examined herself as RW.1 and also filed the affidavits in lieu of chief-examination of RWs.2 to 12. She has, however, given up RWs.4 to 11 and allowed herself, RW.2, RW.3 and RW.12 for cross-examination. Exs. B.1 to B.8 were marked on her side. Before considering the allegation against respondent No.2, it is appropriate to deal with the role played by respondent No.1. It is not in dispute that the appeal filed by respondent No.3 was allowed by respondent No.1 by order, dated 28-9-2010, and the said order was communicated through Special Messenger to respondent No.2 on 8-2- 2011. On 10-2-2011 the petitioner is stated to have received a copy of the said order from respondent No.1. Till around 6- 00 PM on 11-2-2011 respondent No.1 was not aware of the interim order of this Court. It has come in evidence and the same is not in dispute that at around 6-30 PM, respondent No.1, who was busy with the hearing of cases by the Honourable Minister for Panchayat Raj, telephoned respondent No.2 and informed her of the interim order of this Court. In the face of these admitted facts, I am of the opinion that respondent No.1 has not acted in any manner which can even remotely suggest that he has violated the order of this Court. Coming to the role of respondent No.2, the sum and substance of the evidence in-chief of all the witnesses on the petitioner’s side is that on 10-2-2011 there was an attempt to demolish the wall; that on coming to know about the order passed by respondent No.1 in the appeal filed by respondent No.3, the petitioner and his son (PWs.1 and 2) went to the office of respondent No.1 and obtained a copy of the order in the evening hours at 5-00 PM; that when the family members of the petitioner protested against the proposed demolition on 10-2-2011 and requested for granting reasonable time, respondent No.2 has informed respondent No.3 and his men that they will come back on 11-2-2011 for demolition of the wall; that, accordingly, on 11- 2-2011 at about 3-00 PM respondent No.2 along with her staff came to the petitioner’s house; and that when she proposed to demolish the wall, the family members of the petitioner informed her that this court has granted stay of demolition. Respondent No.2 without heeding to the request of the family members of the petitioner not to demolish the wall, got the wall partly demolished till 7-00 PM on 11-2- 2011; that on 12-2-2011 at 11-30 AM, PWs.1 and 2 along with their family members have shown the order of this Court, but respondent No.2 refused to receive the same and continued the demolition work; and that on 14-2-2011 also further demolition work was undertaken and completed by 2-30 PM in the presence of respondent No.2. In his cross- examination PW.1 denied the suggestion put to him that the staff of the Gram Panchayat have demolished the wall on the evening of 10-2-2011. PW.1 deposed in his cross- examination that at 6-30 PM on 11-2-2011 he contacted his family members over phone and came to know through them that the demolition was commenced on that day after 3-00 PM; and that, even though 12-2-2011 happened to be Second Saturday, respondent No.2 came to the site along with her staff and got the remaining wall demolished. PW.1 further deposed that he has handed over a copy of the interim order to respondent No.2 at around 6-45 PM on 11- 2-2011, but no acknowledgment was issued by the officials. The witness admitted that the photographs stated to have been taken on 11-2-2011 do not show the presence of the respondent No.2. He, however, added that respondent No.2 came to the site and left after giving instructions to her staff to demolish the wall. The tenor of the evidence of other witnesses examined by the petitioner is almost similar. In their evidence RWs.1, 2, 3 and 12 stuck to their stand taken by them in the counter-affidavit of respondent No.2. According to them, the demolition work was commenced on 10-2-2011 itself and completed by the early hours of 11-2-2011. Having regard to the respective pleadings and the evidence, the following two issues emerge for consideration: 1) Whether the demolition of wall was commenced on 10-2-2011 and whether respondent No.2 is truthful in placing the material facts before this court? and 2) Whether the demolition of wall was continued despite knowledge of interim order of this Court by respondent No.2 and whether the petitioner has established the charge of contempt against respondent No.2 beyond all reasonable doubt? Ex.B.4 is the office order, dated 9-2-2011, issued by respondent No.2, which was addressed to 11 persons, who are stated to be the staff members of the Shamhabad Gram Panchayat. A perusal of this order would show that respondent No.1 has passed order on 28-9-2010 to remove the 3 feet ‘seri’ wall illegally constructed by the petitioner and, therefore, the said wall shall be immediately removed after receipt of that order, failing which a complaint will be sent to the higher officials on their inaction. Ex.B.5 is the compliance report sent by 11 staff members of the said Gram Panchayat. This report is stated to have been prepared at 1-00 PM on 11-2-2011, wherein it is stated that the demolition of wall was commenced at 10- 45 AM on 10-2-2011 and was completed at 5-15 PM on that day; and that on 11-2-2011 the bricks and other debris were removed upto 12-30 PM as the same were obstructing the free movement of the public. Ex.B.6 is letter, dated 11-2-2011, addressed by respondent No.2 to respondent No.1, wherein it is, inter alia, stated that as per the direction of the latter the wall of the petitioner was removed from 10-2-2011 to 11-2-2011. The said letter is shown to have been received in the office of respondent No.1 on 18-2-2011. In her cross-examination, RW.1 admitted that whenever she issues letters or orders, they will be processed through inward and outward registers; and that Ex.B.4 does not contain the inward or outward number. She, however, added that the said letter would have been entered in the register. The fact remains that she failed to produce the extract of the register showing that Ex.B.4 was entered in the register. Similarly, Ex.B.5 compliance report also does not contain the inward number and also the office seal. She denied the suggestion that Exs.B.4 and B.5 were created for the purpose of escaping from the contempt proceedings. RW.1 deposed that Ex.B.6 was drafted by the Junior Assistant-Hari Babu. A perusal of this document shows that initially it was stated therein that as per the directions of respondent No.1 the wall was removed on 11-2-2011. However, there are interpolations at two places by addition of words “from 10-2-2011” before the words “dated 11-2- 2011” and “to total” between the words “dated 11-2-2011 day” and ‘removed’. RW.1 sought to explain these interpolations by stating that they are not over writings, but they were corrections carried out on her instructions as she found errors. She also denied the suggestion that these over writings were not in existence when Ex.B.6 was filed in the Court on 10-6-2011. On a careful consideration of Exs.B.4 and B.5, I have no manner of doubt that they were brought into existence by respondent No.2 only for the purpose of defending herself from the Contempt Case. On her own admission, all the correspondence will be entered in the inward and outward registers. No explanation has been forthcoming from respondent No.2 as to why Exs.B.4 and B.5 were not entered in the concerned registers. They also do not contain the office seal of respondent No.2. Therefore, I find merit in the stand taken by the petitioner that Exs.B.4 and B.5 were brought into existence subsequently. Coming to Ex.B.6, it is clear even for the naked eye that the crucial words “from 10-2-2011” and “to total” were clearly added at a later point of time. This fact is admitted by respondent No.2 in her cross-examination as noted above. It is pertinent to consider the affect of the addition of these words in this connection. If we read the sentence originally written in Ex.B.6, it shows that on the direction of respondent No.1, respondent No.2 has got the wall removed on 11-2- 2011. If we read the subsequently added words it completely changes the meaning to the effect that the demolition of the wall has taken place from 10-2-2011 till 11- 2-2011 and the wall was totally removed by 11-2-2011. Keeping aside the question for the time being whether the demolition was completed before communication of the interim order of this Court on 11-2-2011, Exs.B.4 and B.5 were created to show that the demolition work of removal of wall was commenced on 10-2-2011 and completed on 11-2- 2011. Had the demolition work been commenced on 10-2- 2011, the Junior Assistant, who is stated to have prepared Ex.B.6 letter would not have ignored the said fact and initially prepared the letter by stating that the wall was removed on 11-2-2011. Respondent No.2 as RW.1 has candidly admitted that on her instructions the words that the demolition work was commenced on 10-2-2011 and was completed by 11-2-2011 were added. These admissions, without any manner of doubt, would show that respondent No.2 has come out with a blatantly false plea that the demolition work was commenced on 10-2-2011 itself. Except Exs.B.4 to B.6, no material is placed to show that the demolition was commenced on 10-2-2011. It is significant to note that respondent No.2 has come out with a false plea on her knowledge of the interim order. While in the cross-examination respondent No.2 has deposed that she has not received any communication from the District Panchayat Officer’s office on 11-2-2011, in his counter-affidavit respondent No.1 has stated as under: “ … I submit that a representation is made by the petitioner on 11-2-2011 in my office in the evening hours with a request to direct the Panchayat Secretary to stop the demolition. While, I was in hearing cases in the chamber of Hon’ble Minister for Panchayat Raj, the petitioner submitted a letter in the evening hours of 11-2-2011. Upon perusing the letter of the petitioner I made a phone call to Panchayat Secretary to inform the receipt of letter of petitioner which says that this Hon’ble Court was pleased to pass orders of stay of demolition of wall, but the Panchayat Secretary informed me that in pursuance of orders passed in appeal by this respondent the Panchayat Secretary has demolished the wall on 11-2-2011 itself”. Respondent No.2 has all through claimed that she has received the telegraphic order of this Court through post on 14-2-2011, much after demolition. If demolition of wall was commenced on 10-2-2011, respondent No.2 would have informed the same to respondent No.1. But, the counter- affidavit of respondent No.1 does not refer to his being informed that demolition was commenced on 10-2-2011. I have no reason whatsoever to doubt the veracity of the statement of respondent No.1 about his telephonic talk with respondent No.2 on 11-2-2011. From this conduct of respondent No.2 it is quite clear that she has made every endeavour to make it appear that she was not aware of the interim order till the wall was completely demolished. Her conduct suggests that she was anxious to hide material facts obviously in her anxiety to play safe. While she has brought into existence Exs.B.4 and B.5, she made an attempt to distort Ex.B.6 to show that the demolition work was commenced on 10-2-2011 and completed before the afternoon of 11-2-2011 itself. Respondent No.2 has indulged in suppression of material facts by consciously avoiding to disclose the fact that she has received the telephonic communication from respondent No.1 on the interim order passed by this Court at about 6-30 PM on 11-2-2011. The conduct of respondent No.2 thus throws any amount of suspicion in her actions and creates a strong impression in the mind of this Court that she is not coming out with the truth and she was bent upon ensuring demolition of the wall. Another circumstance which completely falsifies the plea of respondent No.2 that the demolition of the wall was commenced on 10-2-2011 is that in her evidence as RW.1 she has stated that the Gram Panchayat approached the Police on 10-2-2011 and taken their aid for demolition of the wall. In her cross-examination she has deposed that she has given a requisition to the Police to provide security for demolition by approaching them on 10-2-2011; and that since the Police were handling a murder case, the Sub- Inspector of Police-Sri Bhaskar told her that endorsement will be given on the next day i.e., 11-2-2011. RW.1 admitted that she has not filed copies of the requisition given to the Police and the endorsement given by them. It is the admitted plea of respondent No.2 that she has taken the Police aid for demolition of the wall after giving requisition to the Police. Failure to file the requisition and the endorsement of the Sub-Inspector would raise a strong presumption that they were withheld from being filed in the Court with a view to suppress the real date on which the Police have given the aid and commencement of demolition of wall has taken place. As Exs.B.4 and B.5 were brought into existence, as concluded hereinabove, and Ex.B.6 has been interpolated with the addition of the words, as noted above, the conclusion is inescapable that no demolition work has taken place on 10-2-2011 and respondent No.2 has indulged in the blatant attempt to mislead this court to make it appear as if that the demolition work was commenced on 10-2-2011 itself and completed by 11-2-2011, before she had the knowledge of the interim order. As regards the next issue, as noted above, it is the specific case of the petitioner that even though an attempt was made to demolish the wall on 10-2-2011, respondent No.2 did not succeed on that day due to the resistance by the family members of the petitioner; and that the demolition was commenced around 3-00 to 3-30 PM on 11-2-2011 and continued on 12th and 14th February, 2011. From the discussion undertaken hereinabove, it is quite evident that Exs.B.4 and B.5 are self-serving documents, which were pressed into service for the purpose of this Contempt Case. If Ex.B.6 is read as it was originally prepared ignoring the interpolations, it is clear that the demolition was commenced on 11-2-2011. Even though the petitioner has pleaded and attempted to substantiate the same by adducing oral evidence, apart from filing photographs, that the demolition was commenced between 3-00 and 3-30 PM on 11-2-2011, by which time respondent No.2 had knowledge of the interim order, the petitioner failed to prove this allegation beyond reasonable doubt. This Court, however, is conscious of the fact that the contempt proceedings being quasi criminal in nature, the contemnor cannot be found guilty on preponderance of probabilities in the absence of proof beyond reasonable doubt. While the material on record would point to the effect that the demolition work was commenced only on 11-2- 2011, the same is not enough to give a conclusive finding as to whether it was started after passing of the interim order by this Court and continued beyond 6-30 PM when respondent No.2 has officially come to know about the passing of the interim order through respondent No.1. Even though the petitioner has filed Exs.A.1 and A.2 photographs, they do not clinchingly establish that the demolition work was continued beyond 6-30 PM on 11-2-2011. Some of these photographs would bear the date 14-2-2011 showing that still some workers were engaged in the removal of certain portions of the existing wall. Respondent No.2 has raised a serious doubt about the authenticity of the date appearing on the photographs. In fact, she has filed Ex.B.8 photographs to show that the very same photographs filed by the petitioner