R.S.Sehrawat vs Rajeev Malhotra

2. Briefly stated, the appellant was working as a Junior Engineer in Municipal Corporation of Delhi (MCD). The writ petitioner (respondent No.1 herein) had alleged that the appellant and other officials, including police officials had, by their act of commission and omission, first permitted the writ petitioner to carry on unauthorised construction on the property bearing Plot No.37-C measuring 834 square yards at Asoka Avenue, Sainik Farms, New Delhi and later on unilaterally demolished the said structure. This was the grievance made in Civil Writ Petition No.6734 of 2000 filed by respondent No.1. Respondent No.1 had prayed for taking action against the appellant and other officials including police officials involved in the alleged incident of demolition of the 3 structure. The Division Bench of the High Court adverting to the direction issued in Public Interest Litigation bearing C.W.P. No.7441 of 1993 dated November 3, 1997 restraining unauthorised constructions in unauthorised colonies, issued notice on 6th December, 2000 in the present writ petition to the officers of the MCD and the police personnel who were posted during the time the construction was raised on the plot belonging to respondent No.1, to show cause as to why proceedings for contempt of court should not be initiated against them.

3. After receipt of notice, the appellant, as well as other officials, filed their respective affidavits. The appellant filed his detailed affidavit on 3rd January, 2001 inter alia pointing out the primary responsibility of the officials who were expected to comply with the directions issued on November 3, 1997 by the High Court. As regards his role in the capacity of Junior Engineer, the appellant asserted that he discharged the task assigned to him from time to time by his superior officers and submitted compliance reports to them in that behalf. He 4 further asserted that he had undertaken 14 major demolition actions in Sainik Farms alone between 7th March, 2000 and 27th September, 2000 and razed these constructions to the ground. It was asserted that the writ petitioner illegally constructed the building at the same location inspite of the demolition action taken on the earlier occasions. In support of the contention that he had resorted to the demolition of concerned structure, he placed reliance on the office submission made by him to his superiors as well as the photographs of the structures taken before and after the demolition drive. The stand taken by the appellant was contested by respondent No.1. To verify the factual position, the High Court vide order dated 12th January, 2001 appointed a Committee of advocates to inspect the site and submit a fact finding report. That report was submitted to the High Court by the Committee of advocates on 23rd January, 2001.

4. The High Court vide order dated 24th January, 2001 after recording its prima facie opinion issued show cause notice to the concerned officials including the appellant as to why they 5 should not be convicted and punished for contempt of court. After the said order, the appellant filed a further affidavit dated 8th February, 2001 and reiterated the stand taken in the earlier affidavit as also explained the position of possibility of reconstruction on the same location after the demolition was done on 7th June, 2000 and 14th/15th September, 2000. The appellant also relied on contemporaneous evidence such as the report and photographs of the demolition. The High Court, however, was not impressed by the explanation offered by the appellant and proceeded to record finding of guilt against the appellant for filing false affidavit on January 3, 2001. The appellant preferred a review petition which was dismissed on 10th May, 2006. As a result, the appellant has challenged both the orders by way of the present appeal.

5. The principal grievance of the appellant is that no proper charge was framed and conveyed to the appellant. The first show cause notice issued to the appellant in terms of order dated 6th December, 2000 was presumably for non-compliance of the direction given on November 3, 1997 in C.W.P. No.7441 6 of 1993; whereas the second show cause notice issued to the appellant pursuant to order dated 24th January, 2001 was for filing an incorrect and misleading affidavit dated 3rd January, 2001. The appellant had revealed the factual position in his affidavit dated 3rd January, 2001 and further affidavit dated 8th February, 2001. The factual position stated in the said affidavits has not been analysed by the High Court at all, much less in its proper perspective. On the contrary, the High Court, proceeded to record a finding of guilt, being swayed away by the factual position recorded in the report submitted by the Committee of advocates, completely overlooking the plausible explanation offered by the appellant that the unauthorised structure in question was demolished on 7th June, 2000 and again on 14th/15th September, 2000. The contemporaneous record regarding the extent of demolition in the form of office submission, press reports and photographs was also brought to the notice of the High Court. However, that has been overlooked. The grievance of the appellant is that in the affidavit dated 8th February, 2001 a specific disclosure was made about the video recording done by news 7 channels and liberty to play the video clippings was sought but the High Court did not deal with this request of the appellant at all. The time period between the demolition and the inspection by the Committee of advocates being quite substantial, the possibility of reconstruction of the structures in question could not be ruled out. However, the High Court has not dealt with this aspect.

The aforesaid officers are present and they accept notice. They are granted two weeks time to file affidavits in reply to the show cause notice. Pleadings in the writ petition be completed before the next date.” 9

9. On a bare perusal of this order, it is evident that the High Court took suo motu action as it was prima facie convinced that unauthorised construction was carried out in Sainik Farms despite the direction contained in order dated November 3, 1997 in C.W.P. No.7441 of 1993. The order also records that the show cause notice was accepted by the officers present in Court. The appellant, like other officers, filed his affidavit revealing the relevant facts concerning him vide affidavit dated 3rd January, 2001. The appellant had explained the factual position as to the action of demolition of unauthorised structures in Sainik Farms during the relevant period as per the task assigned to him by his superior officers and reporting of that fact to his superiors by way of contemporaneous office submission. The correctness of the said contemporaneous office reports could not be and has not been questioned or doubted as such. The reply affidavit makes it amply clear that the Commissioner of the Corporation was personally supervising the demolition work of unauthorised constructions and, therefore, there was no reason to doubt the 10 contemporaneous record in the form of office submissions and photographs reinforcing the fact of demolition. The report of the Committee of advocates, however, was based on the site visit made in January, 2001 after a gap of more than 6 months from 7th June, 2000 and 3 months from 14th September, 2000 when the demolition was actually carried out. The factual position stated in the said report, therefore, may not be the actual position as obtained on the date of demolition i.e. 7th June, 2000 and 14th September, 2000. It is not unknown that such unauthorised structures could be and were reconstructed overnight after the demolition work is undertaken by the officials. That was done by unscrupulous persons clandestinely and without notice. The factual position stated in the reply affidavit filed by the appellant also reveals that continuous follow-up action was being taken in respect of unauthorised structures including those which were demolished. Furthermore, the appellant was transferred from the concerned ward w.e.f. 27th September, 2000 and any development or illegal activity unfolding after that date cannot 11 be attributed to the appellant. All these aspects have not been considered by the High Court.

5. That as regards property No. H-541, Sainik Farms, I state that the committee report has not referred to the same. However, 29.1.2001, I visited the site of the said property and state that the said property has also been reconstructed after the earlier demolition carried out by me. I state that the reconstructed property is still in the process of finishing and 18 painting work is still going on in the property. I state that the committee members should be requested by this Hon‟ble Court to immediately report whether the buildings are in the process of being painted or has been recently completed and painted as the same would show and prove its reconstruction. I have already filed the photographs showing the demolished property by me along with my earlier affidavit.

16. This specific stand taken by the appellant has not been considered by the High Court at all. The appellant made this grievance in the review petition, but of no avail. In our opinion, it is not possible to hold that the demolition work undertaken on 7th June, 2000 and 14th September 2000 was not in conformity with the position reflected in the contemporaneous office submissions/record and photographs submitted by the appellant to his superior authority.

18. In view of the above, the impugned judgment and orders passed by the Division Bench of High Court of Delhi at New Delhi in C.M. No.820 of 2001 in C.W.P. No.6734 of 2000 dated 1st June, 2001 and in R.A. No.6600 of 2001 in C.W.P. No.6734 of 2000 dated 10th May, 2006 are quashed and set aside and the show cause notices issued to the appellant pursuant to the order of the Division Bench of the High Court dated 6th 20 December, 2000 and dated 24th January, 2001 are hereby dropped. Appeal is allowed in the aforementioned terms.

…………………………….CJI.

September 05, 2018.