# Chandra Kishore and another v. Ram Babu and another

- **Citation:** (2006) 2 ILRA 763
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-06
- **Case number:** Civil Misc. Contempt Petition No. 313 of 1993
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-kishore-and-another-v-ram-babu-and-another-40657
- **Pages:** 6

## Headnote

Sri D. Pathak
Sri Rakesh Pathak
Sri Dinesh Pathak
Sri Shyam Narain
Sri Sudhanshu Narain

Contempt of Court, Act. S.12-Interim
Order-passed by writ court-stay vacation
pending-writ
court
restrained
both
parties from raising any constructioncommissioner report dated 2.9.92-found
land in question to be a vacant landconstruction of six shops-court heldwillful and deliberate violation of interim
order-liable to be punished.

Held: Para 14

For the reasons stated above, both the
opposite parties are found guilty of wilful
and deliberate violation of the interim
injunction dated 10.11.1992 passed in
Writ Petition No.40493 of 1992.
Case law discussed:
AIR 1971 SC-1132
AIR 1991 Alld.-114
AIR 1997 SC-1240
2006 (4) ADJ-507
1994 (Supp) II SCC-641
1999 (35) ALR 504 (SC)
J.T. 2001 (1) SC-123
2004 (54) ALR-669
1998 (8) SCC-640

## Text

2 All] Krishna Pal Singh V. State of U.P. and others
763
interse between the petitioner and the
respondent no. 5.

4. Sri Ashok Khare, the learned
Senior counsel for the respondent no. 5
urged that the District Inspector of
Schools, Saharanpur has the power to
consider the question of seniority while
attesting the signatures of the Principal
under the provisions of Section 18 (2) of
the U.P. Secondary Education Services
Selection Board Act 1982 read with
section 19-A of the General Clauses Act.
Section 18 (2) of the Act is quoted
hereunder:

"18 (2) Where the management fails
to promote the senior most teacher under
sub-section (1) the inspector shall himself
issue the order of promotion of such
teacher and the teacher concerned shall be
entitled to get his salary as the Principal
or the Headmaster, as the case may be,
from the date he joins post in pursuance
of such order of promotion."

5. In my opinion, the said provision
is not applicable, inasmuch as Sub clause
(2) of Section 18 would only be
applicable at a stage where the Committee
of Management fails to promote a teacher
on the post of adhoc Principal or the Head
Master as the case may be. In the present
case, the Committee of Management had
issued a resolution dated 30.6.2006
resolving to appoint the petitioner as an
adhoc Principal. This order was passed in
consonance with the provisions of section
18 (1) of the Act of 1982. Once an order
under sub section (1) is passed, the
question of considering the seniority
under section 18 (2) of the said Act by the
District Inspector of Schools does not
arise. Consequently, if any dispute arises
with regard to the seniority between the
petitioner and the respondent no. 5 or with
any other teaching staff of the institution,
the adjudication of such dispute would
fall under Chapter II Regulation (3) of the
Regulations
framed
under
the
Intermediate Education Act 1921.

6. In view of the aforesaid, this
Court is of the opinion that the District
Inspector of Schools had no jurisdiction to
pass such an order. The impugned order
dated 6.7.2006 is quashed and the writ
petition is allowed. Since there is a
dispute with regard to the seniority
between the petitioner and the respondent
no. 5, this Court directs the petitioner as
well as the respondent no. 5 to file their
respective claim before the Joint Director
of Education under Chapter II Regulation
3 (f) of the Regulations framed under the
Intermediate Education Act 1921 within
two weeks from the date of the production
of a certified copy of this order. Upon
receipt of the claim, the Joint Director of
Education shall hear the parties including
the Committee of Management and shall
pass a reasoned and speaking order within
a period of one month from the receipt of
the claim.

 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Contempt Petition No. 313 of 1993

Chandra Kishore and another ...Applicants
Versus
Ram Babu and another...Opposite parties

Counsel for the Applicants:
Sri S.K. Jauhari
Sri K. Shailendra
764 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Counsel for the Opposite Parties:
Sri D. Pathak
Sri Rakesh Pathak
Sri Dinesh Pathak
Sri Shyam Narain
Sri Sudhanshu Narain

Contempt of Court, Act. S.12-Interim
Order-passed by writ court-stay vacation
pending-writ
court
restrained
both
parties from raising any constructioncommissioner report dated 2.9.92-found
land in question to be a vacant landconstruction of six shops-court heldwillful and deliberate violation of interim
order-liable to be punished.

Held: Para 14

For the reasons stated above, both the
opposite parties are found guilty of wilful
and deliberate violation of the interim
injunction dated 10.11.1992 passed in
Writ Petition No.40493 of 1992.
Case law discussed:
AIR 1971 SC-1132
AIR 1991 Alld.-114
AIR 1997 SC-1240
2006 (4) ADJ-507
1994 (Supp) II SCC-641
1999 (35) ALR 504 (SC)
J.T. 2001 (1) SC-123
2004 (54) ALR-669
1998 (8) SCC-640

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
parties.

This contempt petition has been filed
with the allegation that in spite of the
order dated 10.11.1992 in Writ Petition
No.40493 of 1992 the opposite parties
have
made
constructions
over
the
disputed land.

2. The applicants preferred Suit
No.88 of 1992 against the opposite parties
for permanent injunction restraining them
from raising any construction over the
passage and road existing towards north
of the applicants ''Bazar." An application
for interim injunction was also made. An
interim
injunction
was
granted
on
28.5.1992 and Commissioner's report was
also called upon who vide report dated
2.9.1992 found that the disputed land was
vacant and was being used by the
applicant and also by his tenants and
shopper for ingress and egress to his
''Bazar". However, the trial court rejected
the injunction which was subjected to
challenged in a Civil Appeal where also
interim injunction was granted and
continued till the appeal was dismissed on
6.11.1992. Against both the orders, the
aforesaid writ petition was filed and both
the opposite parties were restrained from
making
any
construction
over
the
disputed land vide the order dated
10.11.1992. It is stated that in spite of the
aforesaid order the opposite parties
refused service and started constructions
and in spite of telegrams being sent to him
he did not stop. Telegrams were also sent
to the District Magistrate and the Senior
Superintendent of Police on 12.11.1992
and in fact the applicant also met them
when on the direction of the Senior
Superintendent of Police, the Station
Officer elicited a promise from the
opposite parties to stop constructions but
the constructions of about six shops
continued after the Station Officer was
won over. Thus, the applicant made an
application dated 16.11.1992 before the
trial court where the opposite party filed
his reply on 17.11.1992 stating that he did
not
know
about
the
High Court's
injunction and he had already completed
the
construction
work
uptil
10th
November, 1992. Since the constructions
were still going, two commissions were
2 All] Chandra Kishore and another V. Ram Babu and another
765
issued which submitted reports dated
6.1.1993 and 30.1.1993 which stated that
six shops have been newly constructed.
Even during the execution of the
commission, plastering, white washing
and setting up shutters were going on. All
the six shops were constructed by using
bricks and cement with a lintalled roof.
As the constructions and improvements
were going on without even bothering to
file any stay vacating application or a
counter affidavit, the applicant preferred
this contempt petition on 8th February,
1993.

3. Upon issuance of notice, a
counter affidavit on behalf of the opposite
party was filed denying the substantial
averments and stating clearly in paragraph
17 that the six shops were constructed
between 7th November, 1992 to 10th.
November, 1992. Admittedly, till the
filing of the present contempt petition on
8.2.1993 no stay vacation application or
counter affidavit was filed by the opposite
parties in the writ petition.

4. When the matter was taken up by
this Court on 8th March, 2006, the
opposite parties were directed to indicate
the size of the shops constructed by them
between 7th November 1992 to 10th
November, 1992. In response thereof a
supplementary counter affidavit was filed
on 13th April, 2006 giving the dimensions
of the shop constructed by them. In an
earlier supplementary counter affidavit
filed on 24th February,2006, it was stated
that the opposite parties have filed
objections dated 15.12.1993 against the
Commissioner's report dated 6.1.1993 and
30.1.1993 which is pending and has
further reiterated that the construction
work was completed by the evening of
10th November, 1992 and the shops were
constructed working day and night and
they have never flouted the injunction
order. In the supplementary rejoinder the
substantial allegations have been denied.

5. It is not denied on behalf of the
opposite parties that the constructions
were made but it is stated that six shops
were constructed between 7th November,
1992 and 10th November,1992 when no
injunction was in force. The dimensions
of the shop have been given by the
opposite
parties
themselves
in
the
supplementary affidavit filed on 13th.
April, 2006. The shop no.1 is 160 sq. ft.;
shop no.2 is 208 sq. ft.; shop no.3 is 165
sq. ft.; shop no.4 is 140 sq. ft; while shop
no.5 is 238 sq. ft. It is not denied that the
shops have been made by using bricks
and cement and have also been cement
plastered and painted and their lintelled
roof was also laid.

6. B.N. Dutta, in his authoritative
book "Estimating and Costing - in Civil
Engineering - Theory and Practical" has
given the different stages of construction
and the minimum time consumed at
different stages. For new constructions,
apart from settling the design etc.,
according to him there are different
stages. It starts with foundation digging at
least upto a depth of 2 1⁄2 ft. for lintalled
roof height of 6 ft. or less. Laying of the
foundation walls and the D.P.C. (optional)
and then starts the construction of walls.
Lintall has to be given for any window
and door opening. This part can be done
while raising the wall, but if girders or
stone stills are to be used, one will have to
wait for 3 to 4 days before fixing the
girders etc., so that the wall becomes
sufficiently strong and stable to bear its
weight. After reaching the roof height,
shuttering has to be erected to lay the roof
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
and thereafter steel or iron bars (saria) are
to be laid (where span of any lintall is
more than 5 ft.) and then the bricks are
laid and only then the gaps are filled by
cement and mortar. This has to be treated
by water curing for at least two weeks (in
case the span is more than 5 ft.) and then
the roof is plastered. During this period of
curing, the floor cannot be completed as
the place is occupied by support of the
shuttering and roof. Apart from this, water
curing of walls, plastered walls and the
floor has also to be done before it
becomes safe for habitation.

7. Admittedly, all the shops have
pucca cemented brick roof and the area of
only the roof comes to about 920 sq. ft.
apart from the cemented floor of at least
920 sq. ft., excluding the Apron. Leaving
aside the time consumed for foundation,
raising walls and for shuttering, only the
roof and the floor could not have been
built in four days even working day and
night.

8. In the Commissioner's report it is
clearly given out that the shops were
newly made within a period of one month.
Even in the second Commissioner's report
dated 30th January, 1993 it has been
stated
that
the
shops
are
newly
constructed and plaster on the wall is new
and soft and some portions were not even
plastered at the time of inspection, while
white washing was going on and the
paints on the shutters was wet. The
Commissioner also found that tenants
were in process of taking over possession
of
the
shops
and
the
disputed
constructions stops the ingress and egress
to the ''bazar" of the applicant. No doubt
objections to the inspection report dated
6th January, 1993 and 30th. January, 1993
was filed on 15th December, 1993 which
are on record. The objections to the
reports
of
the
Commissioner
are
extremely vague. It questions as to how
could they come to the conclusion that the
constructions were new. In fact the
Commissioner found the construction to
be fresh. No expertise is needed in Civil
Engineering to ascertain whether the
constructions are fresh. The opposite
party
was
approached
by
the
Commissioner for signing the report, but
he refused, but they have not denied their
presence during the inspection. If the
report is examined in the back drop of the
stages and the time consumed in such
constructions as shown in B.N. Dutta's
book, the report appears to be true and
correct. To put it mildly, in those four
days and night, as the contemnor says, he
could not have even lay the roof within
that period and roof cannot be laid over
thin air without the support of walls.

9. At this stage, learned counsel for
the opposite party raises an issue that the
Court cannot proceed further without first
framing formal charges as it is a quasi
judicial proceedings and charges ought to
be framed.

10. In the opinion of the Court, on
the facts of this case, it is not necessary to
frame formal charges. Where the charge
is simple and clear from the petition, it
would not be necessary to frame formal
charges. Though, normally, this Court
frames charges but there is no such
procedure provided under the Contempt
of Courts Act. However, it goes without
saying that the procedure should be fair
and reasonable opportunity should be
given to the contemnor to defend himself.
In the present case, while issuing notices
on 9.2.1993 the contemnor was made
aware of the nature of the charge against
2 All] Chandra Kishore and another V. Ram Babu and another
767
him and in pursuance thereof he has
entered his reply which is in the nature of
a defence and he has not raised any plea
of vagueness as to what sort of
commission or omission is required off
him. It is apparent from the counter
affidavit and the two supplementary
counter affidavits that the contemnor has
understood why he has been noticed. He
is unable to point out any prejudice,
which has been or can be, caused by nonframing
of
charges.
Therefore,
considering the ratio of the Apex Court in
the case of C.K. Daftari v. O.P. Gupta
[A.I.R. 1971 S.C. 1132] it is not necessary
in the present case to frame charges.
Therefore, the contention of the learned
counsel for the opposite party is rejected.

11. It is then urged on his behalf that
since the writ petition was against private
individuals no mandamus including an
interim injunction could be issued in view
of a Full Bench decision of this Court
rendered in the case of Ganga Saran v.
Civil Judge and others [A.I.R.1991
Allahabad 114]; on this premise, it is
urged, that since the order is void, it
cannot be taken note of in these contempt
proceedings. The argument is merely
stated to be rejected. This issue is no
longer res-integra. This court, scores
years ago in Ratan Shukla's case (AIR
1956 Alld. 258) had held that violation of
an order even without jurisdiction would
be contempt. This ratio was approved by
the Apex Court in Tayyabbhai M.
Bagarwalla [A.I.R. 1997 S.C.1240]. If
such a defence or a right is given to a
party to sit in appeal over an order, it
would lead to disastrous result and
seemingly would erode the rule of law.
The order of a Court may be illegal or
void but until and unless it is set aside or
discharged, no party will have any right to
flout it. Therefore, this argument also
cannot be accepted.

12. Lastly, it is urged that since a
stay vacation application is pending in the
writ petition, the Court should not
proceed further before decision of the stay
vacation application. He has relied upon a
Division Bench decision of our Court
rendered in the case of Shiv Lal v. Ram
Babu Dwivedi [2006 (4) A.D.J. 507). In
the opinion of the Court, the ratio in the
said decision is not applicable in the
present case. In the case of Ravi S. Naik
v. Union of India [1994 (Suppl. II)
S.C.C.641, the Apex Court has held that
even interim order is binding till it is set
aside by a competent court and it cannot
be ignored. In the case of K.S. Villasa v.
M/s Ladies Corner and another [1999
(35) A. L. R. 504 (S.C.)] and in the case
of Madan Lal Gupta v. Ravindra
Kumar [J.T. 2001 (1) S.C. 123], the
Supreme Court has held that if an interim
order
is
intentionally
violated
or
disobeyed action for contempt can be
taken. The Supreme Court went on to the
extent of holding that a person can be
punished for violation of an interim order
even though subsequently the petition is
dismissed. It all depends on the facts of
each case. Can it be said that a building
can be demolished, or a occupant or a
tenant be evicted irrespective of an
injunction merely because a stay vacation
application is pending? Or, like in this
case, constructions can be made? How
can it be remedied later? In the case of
Tayabhai M. Bagasarwalla and another
v. Hind Rubber Industries Pvt. Ltd.
(supra) the Apex Court has propounded
that a person has to pay the price of
disobedience of an interim order even if
the case was subsequently dismissed. It
held "We are of the opinion that in such a
768 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
case the defendants cannot escape the
consequence of their disobedience and
violation
of
the
interim
injunction
committed by them prior to the High
Courts' decision on the question of
jurisdiction." Similar view has been
reiterated by a learned Single Judge of
this Court in the case of Naresh Chandra
Kapoor v. O.P.S. Malik [ 2004 (54)
A.L.R. 669].

13. The Apex Court in the Case of
Dr. H. Phunindre Singh and others v.
K.K. Sethi and another [(1998) 8 S.C.C.
640], has also held that enforceability of a
courts' interim order cannot be diluted
only because an appeal is pending. The
Division Bench in Shiv Lal's case was
confronting an entirely different situation.
In that case an interim order staying a
suspension order was enforced through
contempt proceedings even though stay
vacation application was pending. In that
case the Court found that genuineness and
bonafide of the action of the contemnor in
moving the said application had to be
considered, and in any event the party
could be evenly placed even after the
decision. The facts of this case are
entirely different.

No other point has been urged.

14. For the reasons stated above,
both the opposite parties are found guilty
of wilful and deliberate violation of the
interim
injunction
dated
10.11.1992
passed in Writ Petition No.40493 of 1992.

15. Before the Court proceeds
further to hear the contemnors on the
question
of
sentence,
it
appears
appropriate, in the facts of this case, to
give a reasonable opportunity to them to
purge the contempt.
16. The contemnors, before being
heard on the question of sentence, are
given a months time to purge the
contempt by demolishing the said six
shops and restore the disputed land as
vacant piece of land as was found by the
Commissioners
in
its
report
dated
2.9.1992 and file an affidavit to that effect
by the next date when they will also
appear.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 532 of 2005

Smt. Ram Devi ...Appellant/petitioner
Versus
Director
Bal
Vikas
Sewa
Avam
Pushtahar Uttar Pradesh, Lucknow and
others

...Respondents

Counsel for the Appellants:
Sri Manoj Kumar Mishra
Sri L.N. Shukla

Counsel for the Respondents:
S.C.

(A) Constitution of India, Art. 226-Writ
Petition-maintainability-petitioner/
Appellant challenging the order-passed
by
statutory
authority-rejecting
the
claim for promotion on the post of
Mukhya
Sevika-Direction
exercised
power as public functionary-given under
G.O.-rejection of claim for promotion on
arbitrary and unreasonable ground-heldpetition maintainable.

Held: Para 10 & 11

The ground on which the appellant was
non suited for promotion is clearly