High Court · 2011

Order

This contempt case is filed alleging violation of the order of this Court in W.P. No.8985 of 2010 dated 21.04.2010. The order passed by this Court in W.P. No.8985 of 2010, to the extent relevant, reads as under: “Since the petitioner has submitted representations on 28.01.2010 and 07.04.2010 alleging construction by the second respondent contrary to law and without approval of the Greater Hyderabad Municipal Corporation Act, I consider it appropriate to direct the first respondent to consider the petitioner’s representations dated 28.01.2010 and 07.04.2010 and, if the construction being made by the second respondent is found to be illegal/unauthorized, take further action in accordance with law including putting the second respondent on notice and giving him an opportunity of being heard. The first respondent shall communicate its decision to the petitioner within a period of one month from the date of receipt of a copy of this order.” The petitioner claims to have issued a legal notice dated

01.06.2010 (which was admittedly received on 03.06.2010) to the first respondent-contemnor requesting him to implement the order of this Court. Thereafter, the first respondent is said to have issued a notice under Section 452 of the HMC Act on 11.06.2010 calling upon the 2nd respondent to submit his explanation, if any, as to why the said illegal construction should not be removed. The petitioner would allege that the first respondent had not informed him of the action taken on his representations dated 28.01.2010 and 07.04.2010 as directed by this Court, and he had willfully and deliberately violated the orders of this Court. This Court directed notice before admission on 30.07.2010. Thereafter on 24.09.2010 the contempt case was admitted, and a notice in Form I was issued. In his counter affidavit dated

06.09.2010 the respondent –contemnor would submit that Section 452 notice was issued on 11.06.2010; a reply was submitted by the 2nd respondent on 28.06.2010; Section 636 notice was issued on 05.07.2010; W.P. No.20988 of 2010 was filed by the 2nd respondent questioning the said notice; this Court granted interim suspension, of the notice issued under Section 636, on

23.08.2010; and, as such, no action could be taken for demolition of the unauthorized construction. In his reply affidavit dated 23.09.2010, the petitioner would assert that the respondent was helping the 2nd respondent to proceed with such construction; while the notice under Section 636 dated 05.07.2010 granting 48 hours was issued, no action was taken till 23.08.2010 on which date the 2nd respondent had filed W.P. No.20988 of 2010; even till the date of filing of the reply affidavit, the respondent-contemnor had neither disposed of his representation nor did he communicate his decision; and the respondent-contemnor had willfully and intentionally violated the order of this Court. Thereafter an additional counter affidavit dated 28.10.2010 was filed wherein, while admitting that a copy of the order of this Court dated 21.04.2010 was received in the inward Section on

29.04.2010, the respondent – contemnor would state that the said order was misplaced, and he came to know about the order only when the petitioner enclosed it along with their legal notice dated

01.06.2010. He would narrate the action taken by him culminating

in the filing of the writ petition questioning the Section 636 notice. He would state that, by inadvertence, he could not communicate the decision taken by him on the representation submitted by the petitioner, and the consequential action initiated for demolition of the illegal structure; he had communicated the decision to the petitioner on 22.10.2010; the delay in not implementing the order of the Court within the stipulated time, and the delay communicating the decision, was neither willful nor deliberate, and was due to the order of this Court, received by the inward Section on 29.04.2010, being misplaced; he has the highest regard for the order of this Court; he had never ventured to nor did he violate the order passed by this Court; and he was tendering his unconditional apology for the delay in complying with the order of this Court dated 21.04.2010 within the stipulated time. He would request the Court to pardon him for the inconvenience caused on account of the delay in communicating his decision to the petitioner on

22.10.2010. Rule of law is the foundation of democratic society and the judiciary is its guardian. The Court has the duty of protecting the public interest in the administration of justice and, as such, is entrusted with the power to commit for contempt of court, not in order to protect its dignity against insult or injury as the expression ‘contempt of court’ may seem to suggest, but to protect and to vindicate the right of the public administration of justice shall not be prevented, prejudiced, obstructed or interfered with. It is of paramount public interest that those, obtaining an order of the court, should not feel helpless or without remedy when such order is flouted. If orders of the Court are disobeyed with impunity by those who owe an obligation to society to preserve the rule of law, not only would individual litigants suffer, but administration of justice would also be brought into disrepute. (Advocate General, State of Bihar v. M.P. Khair Industries[1]; Bijay Kumar Mahanty v. Jadu[2]). Every one, howsoever high he may be, is bound to implement the orders of the Court. Those who disregard Court orders do so at their own peril for no one is above the law. (Court on its own motion v. N.S. Kanwar[3]). Disobedience of an order of Court, whether prohibitive or mandatory, whether made ex-parte or upon hearing both parties, or interim or perpetual, amounts to contempt if it is calculated or tends to interfere with the administration of justice or brings it into disrespect or disregard, (Jagarlmudi Chandramouli v. Appa Rao[4]), for it strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of an effective legal system. It is exercised to prevent perversion of the course of justice. (Kapildeo Prasad Sah v. State of Bihar[5]). While the jurisdiction exercised in cases of contempt is quasi-criminal in nature and the court must be satisfied on the material before it that contempt of court was in fact committed, such satisfaction may be derived from the circumstances of the case. (Ram Autar Shukla Vs. Arvind Shukla[6]; Bank of India Vs. Vijay Transport[7]). For the purposes of judging 'civil contempt' intention or mens rea is not relevant. The question is only whether the breach was on account of willful disobedience i.e, whether it was not casual or accidental and unintentional. (V.C. Govindaswami Mudali v. B.Subba Reddy[8]). If a party who is fully in the know of the order of the Court, or is conscious and aware of the consequences and implications of the Court's order, ignores it or acts in violation thereof, it must be held that the disobedience is wilful. It may not be possible to prove the actual intention behind the act or omission. A Court can approach the question only objectively and it may presume the intention from the act done as every man is presumed to intend the probable consequence of his act. (N.S.Kanwar3). Effective administration of justice would require some penalty to be imposed for disobedience of orders of the Court if disobedience is more than casual, accidental or unintentional. (Heatons Transport Ltd. v. Transport and General Workers Union[9]; N.S.Kanwar3). Whether or not disobedience is willful depends on the facts and circumstances of each case. Even negligence and carelessness can amount to disobedience. (Kapildeo Prasad Sah5). As noted hereinabove, the order of this Court required the respondent to communicate his decision to the petitioner within a period of one month from the date of receipt of a copy of the order. While the respondent-contemnor would assert that the order of this Court, received in his office on 29.04.2010, was misplaced, he admits to have received another copy of the order, along with the legal notice issued by the petitioner on 01.06.2010, on 03.06.2010. Even if 03.06.2010 is taken as the date of receipt of the order, the respondent was required to communicate his decision to the petitioner within one month thereafter ie., on or before 03.07.2010. It was only after the contempt case was filed on 28.07.2010 and, after he had filed his counter to which the petitioner had submitted a reply affidavit, did the respondent- contemnor communicate his decision the petitioner on

22.10.2010. While this Court had directed the respondent- contemnor to communicate his decision within one month, the respondent-contemnor had taken nearly four months thereafter to communicate his decision. The counter affidavit is silent as to why no petition was filed by the respondent seeking extension of time to communicate his decision. Nor is there any mention, regarding his failure to communicate the decision, even in the original counter affidavit filed by him. It is only after a reply affidavit was filed by the petitioner, and a month and a half had elapsed after the contempt case was admitted and a notice in Form-I issued, did the respondent communicate his decision to the petitioner. Except to state that there was an inadvertent mistake on his part, no justifiable reason is discernable either from the counter affidavit, or the additional counter affidavit, for the inordinate delay in doing so. The explanation put forth by the respondent-contemnor is evidently to evade action being taken against him for Contempt of Court, when the fact remains that the order of this Court, directing the respondent to communicate his decision within one month to the petitioner, was completely ignored. I am satisfied that the order of this Court has been willfully and deliberately violated, and the petitioner has committed Contempt of Court. It is no doubt true that the respondent-contemnor has expressed apology. An apology is not intended to operate as a universal panacea. (M.Y. Shareef v. Judges of Nagpur High Court[10]; Pravin C. Shah Vs. K.A. Mohd. Ali[11]; T.N. Godavarman Thirumulpad (102) through the Amicus Curiae Vs. Ashok Khot[12]). It is not a weapon of defence forged to purge the guilty of the offence but is intended to be evidence of real contrition, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrongdoer’s power. (Delhi Development Authority Vs. Skipper Construction[13]). The apology tendered by contemnor, to be accepted by the Court, should be a product of remorse. (M.C. Mehta Vs. Union of India[14]). While it is open to the Court, in an appropriate case, to accept an unconditional apology based on the factual position, dropping the proceeding of contumacious acts deliberately done, after accepting the apology offered, would be a premium for the flagrant abuse of the judicial process. (Ram Autar Shukla6). I n L.D. Jaikwal Vs. State of U.P.[15], the Supreme Court held:- “………We are sorry to say we cannot subscribe to the “slap—say sorry—and forget” school of thought in administration of contempt jurisprudence. Saying “sorry” does not make the person taking the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to “say” sorry—it is another to “feel” sorry……” (emphasis supplied). The apology tendered by the respondent is neither a product of remorse nor is there any evidence of real contrition on his part. It is but a lofty expression used only to avoid being committed for contempt. I see no reason, therefore, to accept such an apology. Consequently the respondent must be held guilty of Contempt of Court. The next question which arises for consideration is the nature and extent of penalty to be imposed on the respondent- contemnor on his being found guilty of contempt. While awarding sentence on a contemnor, the Court does so to uphold the majesty of law and to ensure that the unflinching faith of people in Courts remains intact. If the guilty are let off, and their sentence remitted on grounds of mercy, people would lose faith in the administration of justice. The Court is duty-bound to award proper punishment to uphold the rule of law, however high the person may be. (J. Vasudevan Vs. T.R. Dhananjaya[16]). There cannot be any laxity, as otherwise law courts would render their orders to utter mockery. Tolerance of law courts there is, but not without limits and only upto a point and not beyond. (Anil Ratan Sarkar Vs. Hirak Ghosh[17]). The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection lose hope. (Jennison Vs. Baker[18]). It is evident from Section 12(3) of the Contempt of Courts Act, 1971 that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances, (Smt. Pushpaben Vs. Narandas V. Badiani[19]), and that a sentence of imprisonment should be restricted to the "rarest of rare" cases, wherein the contumacious act is, per se, so gross and reprehensible that a sentence of fine would be wholly disproportionate to its gravity. To put it differently, a sentence of fine should be the rule and imprisonment an exception. (District and Sessions Judge, Aurangabad Vs. Deelip Balaram Bedekar[20]). The respondent is, therefore, sentenced under Section 12(1) of the Contempt of Courts Act with fine of Rs.2000/- . The contempt case is, accordingly, disposed of. Date: .01.2011 MRKR/ASP RAMESH RANGANATHAN,J