JUDGMENT D.P. Singh, J.
1. Heard learned Counsel for the parties.
2. 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.
3. 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 challenge 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 10.11.1992. Since the constructions were still going, two commissions were 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 8.2.1993.
4. 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 7.11.1992 to 10.11.1992. 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.
5. When the matter was taken up by this Court on 8.3.2006, the opposite parties were directed to indicate the size of the shops constructed by them between 7.11.1992 to 10.11.1992. In response thereof a supplementary counter-affidavit was filed on 13.4.2006 giving the dimensions of the shop constructed by them. In an earlier supplementary counter-affidavit filed on 24.2.2006, 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 10.11.1992 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.
6. 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 7.11.1992 and 10.11.1992 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 13.4.2006. 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 lintalled roof was also laid.
7. 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 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.
8. 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.
9. 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 30.1.1993 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 6.1.1993 and 30.1.1993 was filed on 15.12.1993 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 backdrop 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 nights, 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.
10. 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.
11. 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 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 of 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 non-framing of charges. Therefore, considering the ratio of the Apex Court in the case of C.K. Dqftari v. O.P. Gupta , it is not necessary in the present case to frame charges. Therefore, the contention of the learned Counsel for the opposite party is rejected.
12. 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 Ors. 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 Shu/da's case AIR 1956 All 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 . 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.
13. 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 Shiu Lal v. Ram Babu Dwivedi . 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 U) SCC 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. Ladies Corner and Anr. 1999 (35) AIM 504 (SC), and in the case of Madan Lal Gupta v. Ravindra Kumar , 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 an 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 Tayyabbhai M. Bagarwalla and Anr. v. Hind Rubber Industries Put. 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 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 Waresh Chandra Kapoor v. O.P.S. Malik .
14. The Apex Court in the case of Dr. H. Phunindre Singh and Ors. v. K.K. Sethi and Anr. , has also held that enforceability of a court's interim order cannot be diluted only because an appeal is pending. The Division Bench in Shiu Lai'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 bona fide 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.
15. No other point has been urged.
16. 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.
17. 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.
18. The contemnors, before being heard on the question of sentence, are given a month's 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.
19. List on 18.8.2006.