advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, October 27, 2013

Contempt of court - when apology tendered is a bona fide one , court should not reject the same- All Dismissal main cases should not absolve the liability of contemnor = - T.C. GUPTA ... APPELLANT (S) VERSUS BIMAL KUMAR DUTTA & ORS. ... RESPONDENT(S) - http://judis.nic.in/supremecourt/imgst.aspx?filename=40900

 Contempt of court - when apology tendered is a bona fide one , court should not reject the same- All Dismissal of main cases should not absolve the liability of contemnor  but it can be considered as mitigating factor =

 The explanation to Section 12 of the Contempt of Courts  Act,  1971,   makes it clear that an apology tendered by a  contemnor  should  not  be  rejected merely on the ground that it is qualified or conditional so long it is  made bona fide.  

In his reply, the appellant, after  offering  his  explanations,
had tendered his unconditional and unqualified  apology  in  the  event  the
explanations did not commend for acceptance  of  the  High  Court.  
 In  the
decision rendered in 
O.P.Sharma and  Ors.  Vs.  High  Court  of  Punjab  and
Haryana[1],
this Court has already held that in view of the  explanation  to
Section 12 of the Contempt  of  Courts  Act  an  apology  ought  not  to  be
rejected only on the ground that it is qualified so long as it is made  bona
fide.  In the present case there is nothing on record to  suggest  that  the
unqualified and unconditional apology  tendered  by  the  appellant  in  his
reply before the High Court was actuated by reasons that are not bona fide.

12.   It has also been noticed by us that the writ  petition  in  which  the
interim  order  dated  18.08.2011  came  to  be  passed  has  been   finally
terminated by an order dated 30.10.2012 dismissing  the  writ  petition  and
also that the said order has attained finality  in  law.  
 This  is  another
relevant circumstance that  cannot  be  ignored  though  
we  should  not  be
understood to be saying that 
all cases of dismissal of  the  writ  petition,
by itself, would  absolve  a  contemnor  of  the  charge  of  commission  of contempt in respect of an interim order passed while the writ  petition  had remained pending.

13.   In view of the aforesaid, we are unable to  sustain  the  order  dated
23.07.2012 passed by the High Court.  We  accordingly  set  aside  the  said
order dated 23.07.2012 and allow the appeal.


                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL  NO.9476 OF 2013
                  (Arising Out of SLP (C) No.22500 of 2012)


T.C. GUPTA                              ...  APPELLANT (S)

                                   VERSUS

BIMAL KUMAR DUTTA & ORS.                ...  RESPONDENT(S)



                               J U D G M E N T


RANJAN GOGOI, J.

1.    Leave granted.
2.    By its order dated 23.07.2012 the High Court  of  Punjab  and  Haryana
has found the appellant guilty of commission of contempt in  respect  of  an
order dated 18.08.2011 passed in Civil Misc. No.10994 of  2011  arising  out
of Writ Petition (C) No.11684 of  2011.
Consequently,  the  appellant  was
summoned to appear before the High Court on 30.07.2012  for  hearing  before
pronouncement of order on the punishment  to  be  imposed.
Aggrieved,  the
present appeal has been filed.

3.    The facts that will be necessary to be noticed are as follows:
      The respondent No.1 herein,  as  the  writ  petitioner,  instituted  a
Public Interest Litigation before the High Court (C.W.P. No.11684  of  2011)
raising a grievance with regard to the Final Development  Plan  2025-AD  for
Gurgaon-Manesar  Urban  Complex  published   vide   Notification   No.   CCP
(NCR)/FDP(G)/2011/1386 dated 24.05.2011.
Specifically,  it  was  contended
that Sectors 63-A and Sector 67-A have been carved out  in  the  Development
Plan contrary to the Zoning Regulations which are required to  be  followed.

The Final Development Plan, it may be noticed, is prepared under the  Punjab
Scheduled Roads and Controlled Areas Restriction of Unregulated  Development
Act, 1963 (hereinafter referred to as the Act of 1963).

4.    Notice  on  the  writ  petition  was  issued  by  the  High  Court  on
8.07.2011.
Thereafter, on 11.08.2011 Civil Misc.  Application  No.10994  of
2011 was filed before the High Court for stay of the implementation  of  the
Final Development Plan “in view of contemplated  grant  of  licence  to  the
colonizers/developers/societies.” 
 On 18.08.2011  the  following  order  was
passed by the High Court in C.M.No.10994 of 2011:

      “Notice for the date fixed.
      Mr. Anil Rathee,  Addl.  A.G.,  Haryana,  present  in  Court,  accepts
      notice.
      In the meanwhile, there will be status  quo  as  to  allotment  as  on
      today.”


5.    Though an application to vacate the aforesaid interim order was  filed
by the Respondents in the  writ  petition  the  interim  order  was  neither
vacated nor modified by the High Court and continued  to  remain  in  force.

While the matter was so situated the  appellant  who  then  serving  as  the
Director General, Town & Country Planning, Haryana, had  granted  a  licence
dated 28.12.2011 for setting up of a  Residential  Plotted  Colony  on  land
measuring 100.262 acres falling  in  Sector  63-A  of  the  Gurgaon-Manesar.

The  aforesaid  grant  of  licence  [under  the  Haryana   Development   and
Regulations of Urban Areas Act, 1975] (hereinafter referred to  as  ‘Haryana
Act of 1975’) by the appellant had led to the institution  of  the  contempt
proceeding in question which was registered  as  C.O.C.P.  No.120  of  2012.
The said action was initiated on the basis that the  grant  of  the  licence
dated 28.12.2011 by the appellant is in violation of the order of the  Court
dated 18.08.2011.

6.    The appellant had  filed  his  response  in  the  contempt  proceeding
contending that no allotment was made by him or by any  other  authority  so
as to constitute violation of the order of the High Court dated  18.08.2011.
 The appellant, in his reply,  further  stated  that  in  every  residential
sector, a maximum of 20% of the net planned area  was  earmarked  for  group
housing and 3.5% for commercial purposes  whereas  for  plotted  residential
colonies there was no restriction except the requirement of a  minimum  area
of 100 acres.  It was also stated that  while  the  applications  for  group
housing and commercial activities was to be accorded priority on  the  basis
of date of application the same was not so in respect  of  applications  for
plotted colonies which are to be considered and licences are to  be  granted
on fulfilment of the conditions prescribed.  It was further  stated  by  the
appellant that  though  not  specifically  prohibited  by  the  order  dated
18.08.2011,  out  of  sheer  deference,  no  licence  has  been  granted  or
contemplated for group housing colony/commercial  colony  as  such  licences
can be granted upto a maximum limit of the net planned areas.  Licences  for
plotted colonies, according to the appellant, stood on a  different  footing
inasmuch as for grant of such  licences  no  ceiling  limit  exists.   After
offering the aforesaid explanations, in the  penultimate  paragraph  of  the
reply the appellant had tendered his unqualified and  unconditional  apology
in the following terms:

           ‘It  is  humbly  submitted  that  the  answering  deponent   has
      unfailing regard for this Hon’ble Court and all others courts of India
      and cannot think of disobeying any order passed  by  the  Hon’ble  Law
      Court.  It is an article of faith  for  them  to  respect  the  orders
      passed by the Hon’ble Courts. However, if  this  Hon’ble  Court  still
      comes to the conclusion that the answering deponent has committed  any
      contempt of court, the deponent tender unqualified  and  unconditional
      apology for the same.’


7.     The  High  Court,  on  consideration  of  its  interim  order   dated
18.08.2011 and response of the appellant referred  to  above,  came  to  the
conclusion that its order dated 18.08.2011 has  to  be  understood  to  have
imposed a comprehensive embargo on issuance of all kinds  of  licences  and,
therefore, the grant of licence  dated  28.12.2011,  though  for  a  plotted
housing colony,  amounted  to  violation  of  the  order  dated  18.08.2011.
Accordingly, the High Court held  the  appellant  guilty  of  commission  of
contempt and passed orders for his personal appearance for  hearing  on  the
quantum of punishment.

8.    We have heard Mr.Goolam E. Vahanvati,  learned  Attorney  General  for
India, appearing for the appellant,        Mr. Kamal  Mohan  Gupta,  learned
counsel for the respondent No.2 and Mr. Soli  J.  Sorabjee,  learned  senior
counsel for the respondent No.3. None has appeared on behalf  of  the  first
respondent i.e. writ contempt petitioner before the High Court.

9.    It is the common ground of the  learned  counsels  appearing  for  the
contesting  parties  that  the  interim  order  of  the  High  Court   dated
18.08.2011 had only restrained  the  concerned  authority  from  making  any
allotments. Admittedly, no allotment(s) were made.  There  was  no  specific
order prohibiting the implementation of the development plan, though such  a
relief was prayed  for  before  the  High  Court.   It  is  urged  that  the
appellant, in his reply, had set out the manner in which he  had  understood
the order dated 18.08.2011, namely, that the said order had not  placed  any
kind of prohibition on grant of licences under  the  Haryana  Act  of  1975.
Yet, out of deference to the order of High  Court,  no  licence  either  for
group housing or commercial activities in either Sector  63-A  or  67-A  was
issued or granted and the  entire  of  the  earmarked  land  in  both  these
sectors for Group Housing and Commercial purposes was kept vacant.  Only  in
respect of plotted colonies  for  which  there  was  no  ceiling  limit  the
licence dated 28.12.2011 was issued.  It is further urged that in the  light
of the specific order passed by the High Court it cannot be  said  that  the
appellant or any other person or authority had violated  the  same.   It  is
also pointed out by the learned counsels that, in any view  of  the  matter,
the appellant had tendered his unqualified and unconditional apology  which,
in fitness of things, ought  to  have  been  accepted  by  the  High  Court.
Lastly, the learned Attorney General, by drawing the  Court’s  attention  to
the counter affidavit filed before this Court by the second respondent,  has
submitted that the writ petition itself  had  been  dismissed  by  the  High
Court on 30.10.2012 holding  that  the  validity  of  the  development  plan
published by the Government in accordance with the  relevant  provisions  of
the Statute is  not  open  to  challenge  by  means  of  a  Public  Interest
Litigation.  It is also pointed out that the aforesaid  order  of  the  High
Court has attained finality in law.

10.   The terms of the  order  of  the  High  Court  dated  18.08.2011;  the
averments/statements made in the contempt petition and the reply thereto  on
behalf of the appellant as well as the subsequent  facts  placed  before  us
have received our due and anxious consideration.  The interim order  of  the
High  Court  had  directed  status  quo  to  be  maintained  in  respect  of
allotments.  Admittedly, no allotments had been made  by  the  appellant  or
any other authority.  A  contempt  action  being  in  the  nature  of  quasi
criminal proceeding the degree of satisfaction that must be reached  by  the
Court to hold a person guilty of commission of contempt  would  be  akin  to
what  is  required  to  prove  a  criminal  charge,  namely,  proof   beyond
reasonable doubt.  The order of the Court in respect of which  violation  is
alleged must, therefore, be clear, unambiguous and unequivocal and  defiance
thereof must be apparent on the  very  face  of  the  action  with  which  a
contemnor is charged.  An interpretation of the terms of  Court’s  order  in
respect of which disobedience is alleged  would  not  be  appropriate  while
dealing with a charge of contempt.  Such a charge cannot be brought home  by
unravelling the true meaning of the Court’s  order  by  a  subsequent  order
when there is an apparent ambiguity, lack of clarity  or  dichotomy  in  the
initial order.  In a situation like the present where  the  High  Court  had
directed maintenance of status quo as to allotment when the  interim  prayer
was to stay the implementation of the final development  plan  “in  view  of
contemplated grant of licence  to  the  colonizers/developers/Societies”  it
was not open for the High Court to hold the contemnor guilty  of  commission
of contempt by understanding the order dated 18.08.2011 to mean  status  quo
or a restraint in respect of grant of licences  under  the  Haryana  Act  of
1975.

11.   In an  earlier  part  of  the  present  order,  
we  have  noticed  the
unqualified and unconditional apology tendered by the appellant  before  the
High Court in the event his explanations  were  to  be  found  unacceptable.

The explanation to Section 12 of the Contempt of Courts  Act,  1971,   makes it clear that an apology tendered by a  contemnor  should  not  be  rejected merely on the ground that it is qualified or conditional so long it is  made bona fide.  

In his reply, the appellant, after  offering  his  explanations,
had tendered his unconditional and unqualified  apology  in  the  event  the
explanations did not commend for acceptance  of  the  High  Court.
 In  the
decision rendered in O.P.Sharma and  Ors.  Vs.  High  Court  of  Punjab  and
Haryana[1],
this Court has already held that in view of the  explanation  to
Section 12 of the Contempt  of  Courts  Act  an  apology  ought  not  to  be
rejected only on the ground that it is qualified so long as it is made  bona
fide.  In the present case there is nothing on record to  suggest  that  the
unqualified and unconditional apology  tendered  by  the  appellant  in  his
reply before the High Court was actuated by reasons that are not bona fide.

12.   It has also been noticed by us that the writ  petition  in  which  the
interim  order  dated  18.08.2011  came  to  be  passed  has  been   finally
terminated by an order dated 30.10.2012 dismissing  the  writ  petition  and
also that the said order has attained finality  in  law.
 This  is  another
relevant circumstance that  cannot  be  ignored  though  we  should  not  be
understood to be saying that all cases of dismissal of  the  writ  petition,
by itself, would  absolve  a  contemnor  of  the  charge  of  commission  of contempt in respect of an interim order passed while the writ  petition  had remained pending.

13.   In view of the aforesaid, we are unable to  sustain  the  order  dated
23.07.2012 passed by the High Court.  We  accordingly  set  aside  the  said
order dated 23.07.2012 and allow the appeal.


                                       ...………………………CJI.
                                        [P. SATHASIVAM]




                                        .........……………………J.
                                        [RANJAN GOGOI]
New Delhi,
October  25, 2013.
-----------------------
[1]    (2011) 6 SCC 86 [para 34 and 35]

-----------------------
8


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.