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PETITIONER: RAJIV CHOUDHARY

       Vs.

RESPONDENT: JAGDISH NARAIN KHANNA & ANR.

DATE OF JUDGMENT29/11/1995

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) BHARUCHA S.P. (J)

CITATION:  1996 SCC  (1) 508        JT 1995 (8)   451  1995 SCALE  (6)640

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL.J.      In these  contempt-petitions, it  is alleged  that  the respondents  had   deliberately  disregarded   and  viplated interim orders  passed by  this  Court  while  dealing  with Special Leave  Petition (C) Nos. 14760-62/1992 filed against an order of the Delhi High Court.      The petitioner  had filed  a writ petition in the Delhi High Court  in which  it was,  inter  alia,  contended  that Jagdish Narain  Khanna, the contemnor, (the respondent No. 1 herein) was  the owner  of House  No. 47,  Sunder Nagar, New Delhi which had been demplisned and he was in the process of completing an  illegal construction  for opening of a 50 bed hotel. In  the aforesaid  petition, and  interim order dated 30.9.1992 was  passed by  the High Court. In the said order, the statement  of  counsel  for  the  contemnor  herein  was recorded which  was to  the effect  that the construction at House No.  47. Sunder  Nagar, New Delhi was being carried on as per  sanctioned plan and that it was a residential house. It  was   further  stated  by  the  counsel  that  when  the construction is  completed, the  contemnor will apply to the Municipal Corporation  of Delhi  (hereinafter referred to as the MCD)  for grant  of completion  certificate and that the said premises will not be used for any other purpose. It was further stated  that if  the contamnor will use the premises for any  other use  except residential or even for running a guest house,  he will  do so  only after  getting permission from the  appropriate authority. The High Court ordered that the contemnor  herein shall remain bound by the statement of his counsel.      Aggrieved by  the aforesaid  order dated 30.9.1992, the petitioner herein  filed  Special  Leave  Petition  (D)  No. 14760-62/1992 along with application for stay. While issuing notice, this  Court by  order dated 13.11.1992 directed that there will be ad interim injection restraining the contemnor

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from using  the premises  in  question  for  any  commercial purpose.      On  1.3.1993,   after  hearing  the  counsels  for  the parties, this  Court  passed  the  following  order  in  the aforesaid Special Leave Petition:      "Heard learned counsel for the parties.      Mr.   V.P.    Singh,   learned   counsel      appearing on  behalf of  respondent  No.      to,  Jagdish   Narain  Khanna   made   a      statement before  the  High  Court  that      when construction  will be completed, he      will apply  to  the  MCD  for  grant  of      completion cartificate.  Mr.  Singh  had      made a  further statement  that he  will      use  the  promises  for  any  other  use      except residential  or even  for running      of guest house, he will do so only after      getting permission  from the appropriate      authority. It  has been stated before us      that application  for running  the guest      house  is  already  pending  before  the      Police Commissioner.  We direct that the      said application  shall not  be disposed      of   finally    without   hearing    the      petitioner-Rajiv  Choudhary.  Any  order      passed    finally    by    the    Police      Commissioner would  be  subject  to  the      result  of  the  writ  petition  pending      before  the  High  Court.  In  case  any      application is  moved for  permission of      running   the   guest   house   by   the      respondent No.  10 before  the MCD,  the      same would  also be  disposed  of  after      hearing the  petitioner Rajiv  Choudhary      and any  order passed thereon shall also      he subject  to the final decision of the      High Court.  The special leave petitions      are disposed of."      On  a   clarification  being   sought,  this  Court  on 5.3.1993, passed the following order:      "It has  been mentioned on behalf of the      petitioner  that   in  our  order  dated      1.3.1993, it  should also  be added that      in case  any application  is  moved  for      permission   of    running   the   guest      house/change of  user any the respondent      No. 10  before the  Land and Development      Officer (respondent  NO.  4),  the  same      direction be  given as given in the case      of the  application to  be dealt  by the      police Commissioner  and the MCD. In our      view, the above request is proper and as      such we  further add  in our order dated      1.3.1993 that in case any application is      moved  for  permission  of  running  the      guest  house/change   of  user   by  the      respondent No.  10 before  the Land  and      Development Officer  (respondent No. 4),      the same  would  be  disposed  of  after      hearing the  petitioner-Rajiv  Choudhary      and any  order passed thereon small also      be subject  to the final decision of the      High Court."      In the  present petition  filed by  the petitioner  for initiating  contempt   of  court   proceedings  against  the

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contemnor   and   Virendra   Singh,   the   then   Municipal Commissioner, MCD,  it was  alleged that  according  to  the aforesaid order  of March  1, 1993, the respondent-contemnor had  given  an  undertaking  that  only  after  getting  the permission from  all the authorities, he will open the guest house. It  was alleged  that without  getting the  requisite permission, a  guest house  consisting of  about forty rooms and named  as ‘The  Renaissance’ had  been opened  and  this amounted to  willfully flouting the aforesaid orders of this Court and,  therefore, the respondent should be punished for intentionally flouting the order dated 1.3.1993.      On notice  being issued  by this  Court  on  11.2.1994, affidavit by  way of  reply  was  filed  on  behalf  of  the contemnor on  16.4.1994. It  was, inter  Ala, stated in this affidavit that  he had  started using the aforesaid premises No. 47,  Sunder Nagar,  New Delhi  as a  guest house  on the basis of  a licence  which had  been issued in his favour by the Deputy Commissioner of Police (Licensing), Delhi. It was denied that  he had  flouted the  orders dated  1.3.1993 and 5.3.1993 as,  according to the contemnor, the said order did not restrain  him from  running the said premises as a guest house as  and when he received the requisite and appropriate permission/license to  do so. To this a re-joinder affidavit was filed  by the  petitioner in  which it  was, inter  Ala, contended that  the contemnor  had admittedly  not  got  any permission from  the  Municipal  Corporation  of  Delhi  for running a  guest house and the Deputy Commissioner of Police (Licensing) had no right or authority to grant a license for running a  guest house  in a  residential area.  It was also stated therein  that the  Land and  Development Officer  had also indicated  that there  was violation of perpetual lease dated 29.12.1954 whereby the land in question had been given on perpetual lease by the President of India.      By order  dated 15.7.1994,  notice was  issued by  this Court only to Jagdish Narain Khanna (respondent No. 1 in the petition) to  show cause  why be  should not be punished for contempt for  disobeying this  Court’s Orders dated 1.3.1993 and 5.3.1993.  By this  Order, an  ad interim  direction was also issued  to the  contemnor to  stop the  use of the said building for commercial purposes (guest house or hotel). The MCD was  required to  clarify the  position as to whether or not in law, it was permissible for the contemnor to commence the use of the premises and if not, what action it had taken in the matter.      In response  to the  aforesaid  notice,  the  contemnor filed on 5.9.1994 an affidavit by way of reply. In paragraph 1 of the said affidavit. It was stated that he submitted his "sincerest and unconditional apology to this Hon’ble Court". Thereafter, facts  were stated,  inter Ala,  relating to the sanctioning of  building plans for additions and alterations by the  MCD and  to the  grant of  completion certificate on payment of Rs. 7,94,71/.38/- as compounding fee. It was also stated that  permission for  running of  a guest  house  was required under  the provisions  of Delhi  Police Act and the Regulations   framed    thereunder   whereby    the   Police Commissioner had granted a temporary licence which was valid up to  8.10.1994. While  admitting that  the  contemnor  had started running  the guest  house, it was stated that he had made a  large investment  for putting up the guest house and that he  was suffering  huge losses  every day.  It was also stated, while apparently referring to the permission granted by the  Police Department,  that "the  undertaking given  on behalf of  the deponent  by the counsel was only with regard to obtain  a licence  for running  the guest  house from the appropriate authority. This has been duly done". It was also

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mentioned in this affidavit that there were five other guest houses which  were running  in the  said colony,  namely  in Sunder Nagar  and that all of them had been granted licenses under the Delhi Police Act.      Along with  the affidavit  in reply, the contemnor also annexed a  copy of  the order  of the Deputy Commissioner of Police giving  a temporary licence to the contemnor. In this order, it was specifically stated that temporary licence was being granted  subject to  conditions and  restrictions laid down in  the  "Regulations  for  keeping  places  of  public entertainment in  the Union  Territory of  Delhi" and it was also subject  to the  conditions which  were attached to the licence. The  conditions No.  22 and  24 which are relevant, are as follows:      "22: This  licence would not absolve the      licence  of   his  responsibilities  for      compliance of provisions under any other      Act/Regulations, for  the time  being in      force, framed by any other local body.      24: The  licence shall  have to  furnish      all the  requisite documents including a      valid MCD/licence  indicating the number      of rooms and beds by the due date."      Affidavit has  also been filed by the Additional Deputy Commissioner, Central Zone (MCD) in which it has been stated that while applying for building plans the contemnor had not conveyed that  the premises  shall be  used  for  commercial purposes like  running a guest house. When it was found that the construction  had not  been made  in  according  to  the building plans,  the deviations  were regularised only after payment of  compounding fee and removal of those portions of construction which  could not be compounded. While admitting that completion  certificate was  given, the  MCD,  however, stated that  the contemnor  "occupied and  started using the said premises  for commercial purposes (Guest House) without any valid  licence issued  by Municipal Corporation of Delhi and accordingly  criminal proceedings were initiated against the respondent  NO. 1".  It was thus categorically stated on behalf of the MCD that the contemnor  could not carry on the business of guest house without a proper licence.      On 6.10.194,  when this  petition came  up for hearing, this Court  was informed  that  the  guest  house  had  been completely closed  down w.e.f.  21.7.1994. This  Court  also took note of the fact that the counsel for the contemnor had stated that  he would  like to  file an affidavit expressing unconditional apology.  While  ]  the  case  to  21.10.1994, notice was  issued to  the D.C.P. (Licensing) to explain the circumstances under  which the  order  dated  19.4.1994  was passed by  the D.C.P.  granting a  temporary licence  to the contemnor. Affidavit  of the  D.C.P.  who  had  granted  the licence was directed to be filed.      On 20.10.1994,  affidavit was filed by Ms. Vimla Mehra, Deputy  Commissioner   of  Police  (Licensing).  Inter  Ala, stating that  licence was granted to the contemnor purely on temporary basis  subject to  certain conditions  such as the licence complying  with the Municipal bye-laws and any other rules/regulations under any law that may be in force in this regard. It  was also  stated that  the deponent had acted in accordance  with   law  and  the  licence  had  been  issued according to  regulations relating  to  "keeping  places  of public entertainment  in the  Union Territory  of Delhi". It was also  stated that  the temporary  licence was given only after the petitioner herein had been heard.      The contemnor  filed another affidavit dated 17.10.1994 tendering his apology in which he had stated that he had not

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intentionally flouted  the orders  of this Court and that he submitted  his   sincerest  and  unconditional  apology  for disobedience of  orders of  this  Court  dated  1.3.193  and 5.3.1993. In  the said  affidavit, he made further averments purporting to  explain the circumstances under which he made his earlier affidavit. While stating that an application had been made  by the contemnor to the MCD for a licence, it was stated that  he did  not understand  this Court’s  orders to mean that  application to MCD had to be made before starting the guest  house. It was stated by the contemnor that he had spent an  amount of  Rs.  2  crores  on  the  additions  and alterations made  to the  said premises. The guest house was not operated  and had  been closed  down and  it was further stated that  "I realised that my interpretation of the order was wrong  and that  I can not open the said premises till I get the  MCD licence.  I  never  intended  to  by  pass  the statement made  by my counsel or the orders of this Court. I acted on  my  interpretation,  for  which  I  sincerely  and unconditionally  tender   my  apology..........  However,  I realised that  ’I’ cannot  use the  same till such time as I obtain the M.C.D. licence".      On the  next date  of  hearing  i.e.  21.10.1994  while taking the  aforesaid affidavit  filed by  MS. Vimla  Mehra, D.C.P.  on   record,  this  Court  observed  that  the  said affidavit was  far from  satisfactory  and  prima  facie  it revealed non-compliance  with the Court’s orders. Notice was accordingly, directed  to be  issued to  the said  D.C.P. to show cause  why action  for contempt  of court should not be taken against her.      In  response   to  the   aforesaid  notice,   the  then Commissioner of  Police  M.B.  Kaushal  filed  an  affidavit before the  Court stating  that his  Department had followed the procedure for granting temporary licence in anticipation of production  of NOC/clearance  from M.C.D.  This was  done under  Regulations  19  and  40(A)  of  the  Regulations,  a practice which  was evolved  on the  basis whereof one hotel ‘Priya’ was given temporary licence on 1.12.1992. He further stated in this affidavit that after the present case, on the basis of  the legal  advice  received  from  the  Additional Solicitor General  of India,  directions had  been issued by order  dated   3.12.1994  to  discontinue  the  practice  of granting temporary  licence in anticipation of NOC/clearance from  the  local  authority.  A  copy  of  the  order  dated 3.12.1994 was also placed on the record. The Commissioner of Police in the said affidavit finally stated that:      "I deeply  regret that  the practice  of      issuing  temporary   licence  based   on      mistake  of  law  has  prevailed  in  my      department  and   upon  this   state  of      affairs having  come to my notice I have      taken the  remedial action.  I  and  the      entire Police  Force under  me have  the      highest regard  for the  orders of  this      Hon’ble Court.  An unintended mistake in      carrying  out  these  orders  is  deeply      regretted   for    which   I   sincerely      apologias  for   and  on  behalf  of  my      subordinates."      Vimla Mehra,  D.C.P.  (Licensing)  had  also  filed  an affidavit on  5.12.1994 expressing  her regret and tendering her unqualified and unconditional apology to this Court.      We will  first take up the notice of contempt which was issued to  the D.C.P.  (Licensing). From the affidavit which was filed  by her  as well  as the  affidavit  of  the  then Commissioner of Police, it appears that there was a practice

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prevailing  whereby  the  police  authorities  were  issuing temporary licences  to such guest houses. The fact that this practice was  wrong has been admitted by the Commissioner of Police who  now appears  to have been correctly adviced that it is  not proper  for the  police to  issue such  temporary licences without  the competent local authority having first issued NOC/licence.  It does  appears that it was in view of the practice  which was then prevalent that Vimla Mehra, DCP (Licensing)  issued  the  licence  dated  19.10.194  to  the contemnor. As we have already noticed in the affidavit filed by her,  she tendered her unconditional apology and this has again been tendered on her behalf in Court by the Additional Solicitor General  of India. Under the circumstances we deem it  fit  and  proper  to  accept  her  apology  and  further proceedings against her are dropped.      On behalf  of Jagdish Narain Khanna, the contemnor, Mr. Ashok Desai,  the learned  Senior Counsel contended that his client  who   was  present   in  the   Court,  tenders   his unconditional apology once again. Mr. Desai, however, sought to  explain   the  circumstances   which  had   led  to  the commissioning of  the guest  house by  the contemnor  in  an effort to  show that  the said contemnor had mis-interpreted this Court’s  order, which  was to  the effect that he could not open  the said  premises till he got the MCD licence. It was further  submitted by  him that  the Court should take a lenient view  inasmuch as  the  contemnor  had  undergone  a coronary bypass  surgery in  January, 1995  and furthermore, the guest house had already been closed.      We are  not convinced that this is a fit case where the apology,  which   is  being   tendered  by  the  respondent- contemnor, should be accepted and the proceedings dropped.      From the  facts which  have been  narrated hereinabove, there is  no manner  of doubt  that the  contemnor has  paid scant respect  to the orders of this Court. It is now not in dispute that  there has been a violation of the orders dated 1.3.1993 and  5.3.1993 of  this Court  and in  the affidavit tendering the  apology, it  was accepted, and in our opinion rightly, that  the contemnor  could not have started running the guest  house  without  having  first  obtained  a  valid licence from  the MCD.  It is  difficult to  accept that the aforesaid implication  of this  Court’s order was either not understood or was mis-interpreted by the contemnor.      The order  dated 1.3.1993  was clear  and  unambiguous. This Court  had disposed  of the  Special Leave  Petition by taking note  of the fact that the contemnor’s counsel in the High Court  had  made  a  statement  that  the  premises  in question will not be out to use for any other purpose except residential or  even for  running a guest house, and that he would  do   so  only   after  getting  permission  from  the appropriate authority.  It is  true that  an application for running the  guest  house  was  pending  before  the  Police Commissioner but  it must  have been  known to the contemnor that application for permission will have to be moved before the MCD  because  vide  Notification  dated  10.1.1964,  the byelaws  relating   to  the   Delhi  Municipal   Corporation Regulation of Hotels, Lodging Houses and similar places were published in  Delhi Gazette  according to which guest houses could be  permitted to  receive guests  on  payment  in  the residential areas  only after  the issuance  of no-objection certificate from  various  authorities  including  the  MCD. Having secured  a temporary licence from the DCP, who in law did not  have any  authority  to  issue  such  licence,  the contemnor started  running his  guest house, even though, in the said  licence granted by the DCP, it was stipulated that he was  not absolved of the responsibility of complying with

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the provisions of other Acts/Regulations framed by loal body regarding obtaining of a licence. The contemnor was aware of the requirement of a valid licence from MCD, but he chose to ignore it.      Furthermore, show cause notice on filing of the present contempt petition  was issued by this Court on 11.2.1994 and despite the  receipt of the same, no action was taken by the contemnor  and,  in  fact.  In  his  first  affidavit  dated 16.4.1994, he had sought to justify the opening of the guest house by  stating that  he had  obtained a licence issued by the DCP  (Licensing). In  fact, his  contention squarely was that he  had not  flouted  the  orders  dated  1.3.1993  and 5.3.1993 of  this Court.  The contemnor conveniently, in the said  affidavit,   made  no   mention  with  regard  to  the requirement of  a licence  from the  Corporation  under  the relevant provisions  of MCD Act. It is only after this Court on 15.7.1994  had issued  show cause  notice as  to  why  he should not be punished for contempt that the guest house was closed down on 21.7.1994.      Under the  circumstances when  the contemnor  had  been trying to over-reach the Court and has acted contrary to the orders dated  1.3.1993 and 5.3.1993 and continued to run his guest house  for a  period of  nearly six  months before  he voluntarily closed  it after  the receipt  of the notice for contempt, we  do not  think that his apology is sincere. We, therefore, do  not accept  the apology  tendered by  him and hold him  guilty of committing the contempt of this Court by violating the orders dated 3.1.1993 and 5.3.1993.      Coming to  the question  of sentence, this is a case in which the  orders  of  this  Court  have  been  deliberately flouted. The  contemnor had  shown no  respect or regard for the judicial  orders which  had  been  passed  against  him. Normally, the  Court would  take a  very strict  view of the matter and  impose appropriate  punishment. Having regard to the fact, however, that the contemnor had undergone a bypass surgery in  January, 1995  and that he is still subjected to regular medical  examination at  the Escorts Heart Institute and Research  Center, ends of justice will be met by levying a fine  of Rs.  10,000/-  (Rupees  Ten  Thousand  only)  and sentencing him  to remain  in court  room till the rising of the Court. The present contempt petitions are disposed of in the above terms.