THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON'BLE SRI JUSTICE RAMESH
CONTEMPT CASE No.841 of 2010
08-04-2011
B.Krishna Reddy
1. Smt. Pushpa Subrahmanyam and 5 others
Counsel for the Petitioner: Sri M. Ratna Reddy
Counsel for the Respondents: The Advocate General G.P. for Municipal Admn. Sri
Ravi Shankar Jandhyala
:ORDER: (Per Hon'ble Sri Justice Ramesh Ranganathan)
Rule of law is the foundation of democratic society and the judiciary is its
guardian. The court has the duty of protecting the interest of the public in
the due 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 vindicate the right of the public that the administration of justice
shall not be prevented, prejudiced, obstructed or interfered with. 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, the
whole administration of justice would be brought into disrepute. (Advocate
General, State of Bihar v. M.P. Khair Industries1; Bijay Kumar Mahanty v.
Jadu2). Every one, howsoever high he may be, is bound to implement orders of
Court. Those who disregard Court's orders do so at their own peril for no one is
above the law. (Court on its own motion v. N.S. Kanwar3).
2. 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. K. Appa Rao4), for it strikes at the very root of
the rule of law on which our system of governance is based. Right or wrong, the
order has to be obeyed. Flouting an order of the Court would render the party
liable for contempt. (Director of Education, Uttaranchal v. Ved Prakash Joshi5,
Union of India v. Subedar Devassy PV6, Prithawi Nath Ram v. State of
Jharkhand7). 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 Bihar8). Once a direction is
issued by a competent Court, it has to be obeyed and implemented without
reservation. The only remedy available to a party, who suffers an order, is to
challenge it in accordance with law. The order cannot be rendered ineffective by
not complying with the directions on specious pleas as it would seriously affect
and impair administration of justice. (Karnataka Housing Board v. C. Muddaiah9;
Patel Rajnikant Dhulabhai v. Patel Chandrakant Dhulabhai10).
3. "Contempt of Court" is an unfortunate and misleading phrase. It suggests
that it exists to protect the dignity of the judges. Nothing could be farther
from the truth. The power exists to ensure that justice shall be done. The
public at large, no less the individual litigant, have an interest, and a very
real interest, in justice being effectively administered. Unless it is so
administered the rights, and indeed the liberty, of the individual shall perish.
(Jennison v. Baker11). The Contempt of Courts Act secures confidence of the
people in the administration of justice. If an order passed by a competent court
is clear and unambiguous, disobedience or breach of such order would amount to
contempt of court. There can be no laxity, as otherwise court orders would be
the subject of mockery. (Anil Ratan Sarkar v. Hirak Ghosh12); Patel Rajnikant
Dhulabhai10).
4. The following conditions must be satisfied before a person can be held to
have committed civil contempt: (i) there must be a judgment, decree, direction,
order, writ or other process of a court (or an undertaking given to a court);
(ii) there must be disobedience to such judgment, decree, direction, order, writ
or other process of a court (or breach of undertaking given to a court); and
(iii) such disobedience of judgment, decree, direction, order, writ or other
process of a court (or breach of undertaking) must be wilful. (Patel Rajnikant
Dhulabhai10). Civil contempt arises where the power of the Court is invoked and
exercised to enforce obedience to orders of the court. (Delhi Development
Authority v. Skipper Construction13).
5. In order to determine whether the respondents have committed contempt or
not, let us now note the events which transpired subsequent to the order of this
Court dated 25.8.2009. By order in W.P.No.6354 of 2009 dated 25.08.2009,
violation of which is alleged in this contempt proceedings, this Court had
directed the Nalgonda Municipality not to propose or recommend, nor the
Government to accord sanction, for renewal of the lease of the cinema theatre,
(which belongs to the Nalgonda Municipality), beyond a period of twenty five
years without conducting public auction. Having noted that the 5th respondent,
(husband of the managing partner of the 6th respondent), was the Chairman of the
Municipal Council of the Nalgonda Municipality this Court held that the
constitutional and public law concerns, as well as the provisions of the 1967
and 1968 Rules, did not enable further renewal of lease in favour of the 6th
respondent nor could respondents 1 to 4 avoid the transparent and public process
of granting lease of the schedule property only by public auction. This Court
directed the 4th respondent to exercise his powers under the provisions of the
A.P. Municipalities Act to ensure eviction of the 6th respondent from the
schedule premises. The official respondents (Respondent 1 to 4) were jointly and
severally required to ensure that lease of the schedule property (i.e., the
cinema theatre) was granted pursuant to a public auction in the manner enjoined
by the Act read with the provisions of the 1967 and 1968 Rules.
6. Under Rule 21 of the Writ Proceedings Rules, 1977, unless the Court
otherwise directs, the direction or order made by the High Court shall be
implemented within two months of receipt of the order. As this Court, in its
order in W.P.No.6345 of 2009 dated 25.08.2009, did not otherwise direct,
respondents 1 to 4 were required to conduct auction of the leasehold rights of
the cinema theatre, and the 4th respondent was required to evict the 6th
respondent, within two months from the date of receipt of a copy of the order.
The note file of the Government dated 26.8.2009 shows that the 1st respondent
was aware of the order of this Court directing the respondents to put the
premises to public auction. A copy of the Judgment, in W.P. No.6354 of 2009
dated 25.8.2009, was dispatched by the High Court Registry on 17.9.2009. The
4th respondent, along with his letter addressed to the 2nd respondent on
16.10.2009, enclosed a copy of the said judgment. The 2nd respondent received
the said letter, along with its enclosures, on 21.10.2009.
7. The 1st respondent, vide memo dated 20.10.2009, directed the 4th
respondent to put the lease of the municipal building, known as New Prem Cinema
Talkies, to public auction, and send his compliance report. The 2nd respondent
was requested to ensure that the orders were implemented immediately. Aggrieved
by the order in W.P.No.6354 of 2009 dated 25.8.2009, the 6th respondent carried
the matter in appeal, in SLP (Civil) No.27670/2009, which was dismissed by the
Supreme Court by its order dated 9.11.2009. Again, vide memo dated 12.11.2009,
the 1st respondent requested the 4th respondent to take action as per Section
194 of the Municipalities Act, evict the lessee and implement the orders of this
Court without seeking clarification, and report compliance immediately. The 1st
respondent by memo dated 17.11.2009 instructed the 2nd respondent to appraise
the orders of this Court in W.P. No.6354 of 2009 dated 25.8.2009 to all
Municipal Commissioners in the State, and go for public auction of all municipal
properties after completion of the lease period of 25 years. The 4th respondent
issued eviction notice to the sixth respondent, under Section 194(1) of the A.P.
Municipalities Act, on 21.11.2009.
8. The 6th respondent filed W.P. No.23954 of 2009 to declare the action of
the State Government, in directing respondents 2 to 4 to conduct the auction, as
illegal. A Learned Single Judge of this Court, while disposing of the Writ
Petition by order dated 20.11.2009, directed that (a) respondents 1 and 2 shall
conduct auction of the leasehold rights, for the building in question, without
requiring the sixth respondent to remove the machinery and equipment; (b) in
case the 6th respondent emerged as the highest bidder they shall be entitled to
continue as the lessee on fresh terms; (c) If they did not emerge as the highest
bidder, they shall be under an obligation to remove the equipment and machinery
within a period of six weeks from the date on which the lease in favour of the
highest bidder was confirmed; and (d) till this exercise was undertaken, the
sixth respondent shall be entitled to continue as a lessee on existing terms.
9. While the order of the Learned Single Judge may have disabled respondent
No. 4 in complying with our order requiring him to evict the 6th respondent,
respondents 1 to 4 were required, both in terms of our order and that of the
Learned Single Judge, to conduct auction of the leasehold rights of the cinema
theatre. The fourth respondent issued auction notice dated 7.1.2010,
incorporating the conditions imposed by the Learned Single Judge in W.P.No.23954
of 2009, and fixed the date of auction as 03.02.2010. The said auction notice
was also published in the newspapers on 12.01.2010.
10. The petitioner, vide letter dated 25.1.2010, informed the 1st respondent
that the 4th respondent, in collusion with the Chairman of Nalgonda
Municipality, was resorting to delaying tactics; the 4th respondent was a tool
in the hands of Chairman; and he was acting at the dictates of the Chairman to
postpone public auction of the said premises discouraging bidders from
participating therein. The petitioner requested that a supervisory authority be
appointed over the 4th respondent, as early as possible, to ensure that the
public auction scheduled on 03.02.2010 was held without hindrance. The 1st
respondent, vide memo dated 29.1.2010, requested the 2nd respondent to furnish
his report, on the representation of the petitioner, by 30.1.2010. The 2nd
respondent did not submit any report and, in the meanwhile, on 2.2.2010 the
Minister for Municipal Administration and Urban Development granted stay of the
auction, scheduled to be held on 3.2.2010, for a period of three months.
11. The 1st respondent informed the 4th respondent, vide memo dated 2.2.2010,
that the Government had stayed the auction notice dated 7.1.2010 for a period of
three months. The 2nd respondent, vide proceedings dated 2.2.2010, directed the
fourth to stop further process of auction as ordered by the Government; and
furnish his compliance report. Pursuant to the order of stay passed by the
Government on 2.2.2010 a few bidders, who had furnished bid security pursuant to
the auction notification dated 07.01.2010, withdrew their money. While matters
stood thus a Division Bench of this Court, by order in W.A.M.P. No.322 of 2010
in W.A.No.132 of 2010 dated 4.3.2010, suspended operation of the judgment of the
Learned Single Judge in W.P.No.23954 of 2009 dated 20.11.2009.
12. Even the ex-facie illegal order of the Government dated 2.2.2010, which
was to remain in operation for a period of three months, expired by 1.5.2010. On
18.5.2010 the Secretary (Legal) opined that, in view of the judgment in
W.P.No.6354 of 2009 dated 25.8.2009 and the order of the learned Single Judge
dated 20.11.2009, the Municipal Administration and Urban Development Department
may take further action for vacation of the stay orders issued by the Government
on the auction notice issued by the fourth respondent so that the premises can
be put to auction as directed by this Court. Though the stay granted by the
Government had expired on 01.05.2010, and the order of the Learned Single Judge
was suspended by the Division bench on 04.03.2010, the legal advise tendered by
the Law Department was to take action to vacate a non-existent stay order. We
are unable to comprehend how the State Government can request itself to vacate
the stay granted by it earlier. However, as the advise of the Law department
dated 18.05.2010 is not in issue before us, we say no more. On 22.5.2010, a note
was put up to the Minister seeking his orders whether the stay orders issued in
Government memo dated 2.2.2010 may be vacated, as proposed by the Law
Department, to comply with the directions of this Court. The 1st respondent
endorsed thereupon on 22.5.2010 that the stay granted by the Minister had
expired on 2.5.2010, and this was submitted for information.
13. Except for letters being exchanged between respondents 1, 2 and 4, no
action was taken thereafter to comply with the order of this Court till the
contempt case was admitted, and notice in Form-I issued on 13.08.2010. The 1st
respondent convened a meeting on 31.8.2010, reviewed the matter with the second
and fourth respondents, and directed the 4th respondent to go ahead with auction
of the cinema theatre without issuing fresh auction notice, and finalize the
auction process by 9.9.2010. Eventually the auction was conducted on 09.09.2010
merely with four of the original nine bidders.
14. While the directions in this Court's judgment dated 25.08.2009, requiring
respondents 1 to 4 to conduct auction and the 4th respondent to evict the 6th
respondent from the scheduled premises, ought to have been complied with within
two months from the date of receipt of the order, it was more than a year
thereafter that the auction was held on 09.09.2010, and it only subsequent
thereto that the notice of eviction was given effect to. It is clear,
therefore, that the respondents have disobeyed the order of this Court.
15. Mere disobedience of an order is not enough to hold a person guilty of
civil contempt. The element of willingness is an indispensable requirement to
bring home the charge within the meaning of the Act. (Patel Rajnikant
Dhulabhai10; S.S. Roy v. State of Orissa14; Indian Airports Employees' Union v.
Ranjan Chatterjee15; Anil Ratan Sarkar12). 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). Wilful would exclude casual, accidental, bona fide or unintentional
acts or genuine inability to comply with the terms of the order. 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
Sah8).
16. "Wilful means an act or omission which is done voluntarily and with the
specific intent to do something the law forbids or with the specific intent to
fail to do something the law requires to be done, that is to say, with the
purpose of either disobeying or disregarding the law. (Patel Rajnikant
Dhulabhai10; Ashok Paper Kamgar Union v. Dharam Godha16). The element of
willingness is an indispensable requirement to bring home the charge within the
meaning of the Act. (Anil Ratan Sarkar12).
17. In the purposes of judging 'civil contempt' intention or mens rea is not
relevant. The question is only whether the breach was on account of wilful
disobedience i.e, whether it was not casual or accidental and unintentional.
(V.C. Govindaswami Mudali v. B. Subba Reddy17). To establish a contempt of
court, it is sufficient to prove that the conduct was willful and that the
contemnor knew of all the facts which made it a breach of the order. It is not
necessary to prove that he appreciated that it did breach the order. (St.
Helen's Ltd. v. Transport & General Workers' Union18; Adam Phones Ltd v.
Goldschmidt19). Where there has been willful disobedience of an order of the
Court, and a measure of contumacy on the part of the defendants, then "civil
contempt", what is called "contempt in procedure" bears a two fold character,
implying as between the parties to the proceedings merely a right to exercise
and a liability to submit to a form of civil execution, but as between the party
in default and the State, a penal or disciplinary jurisdiction to be exercised
by the Court in the public interest. (Jennison11). Effective administration of
justice would require some penalty for disobedience to the order of the Court if
disobedience is more than casual, accidental or unintentional. (Heatons
Transport Ltd. v. Transport and General Workers Union20; N.S. Kanwar3).
18. The first respondent has filed as many as four counter affidavits. The
defence taken by her, for issuing the memo dated 2.2.2010, is that it was
represented to the Government that, in view of heavy machinery & equipment and
the issue of settlement of about 50 workers whose livelihood dependend on the
theatre, stay be granted for a period of three months; accordingly the
Government had granted three months stay of the auction to enable the
leaseholder, and the workers employed under him, to make alternative
arrangements; and it was not the intention of the Government to stop the auction
totally, but only for a short period. She further states that on 28.4.2010 the
note file was run in the Municipal Administration and Urban Development
Department regarding the steps to be taken as the stay granted was to expire on
2.5.2010; the matter was referred to the Law Department on 30.4.2010 for
suitable advice; on 18.05.2010 the Law Department tendered its advice; pursuant
thereto the file was circulated to the Minister; and, as the file was not sent
back, a separate file was built up on 28.6.2010. It is clear from the records
that the missing file was returned by the Minister's office nearly four months
thereafter on 13.9.2010, only after auction was held on 9.9.2010. Except
referring to the letters exchanged between him and the fourth respondent the 2nd
respondent, in both his counter affidavits, takes a similar stand as that of the
1st respondent.
19. As the counter affidavits filed by the 1st respondent do not refer to the
person, at whose behest stay of the auction was granted by the Government on
02.02.2010, we directed the relevant Government records to be placed for our
perusal. The record shows that the leaseholder did not submit the
representation seeking stay of the auction. Curiously it was the Minister for
Information and Technology, Communications, Youth Services and Sports, vide
letter dated 30.1.2010, who on his own accord, (his letter makes no reference to
any representation having been received by him), requested the Minister for
Municipal Administration & Urban Development that it was imperative that the
auction fixed on 3.2.2010 be stayed for a period of three months in order to
safeguard the interests of the institution, and facilitate them to make
alternative relief measures. The Minister for Municipal Administration was
requested to consider this as a special case, and to grant stay orders for a
period of three months on humanitarian grounds. The Minister for Municipal
Administration and Urban Development, vide D.O. letter No.214M(MA&UD)/2009-R
dated 31.1.2010, informed the 1st respondent that, in view of the representation
of the Minister for Information Technology, stay was being granted for three
months against the auction notice of the 4th respondent dated 7.1.2010 in order
to facilitate the leaseholder to make alternative arrangements.
20. Respondents 1, 2 and 4 were present in court on 25.3.2010 when we heard
the contempt case and reserved judgment thereupon. The 1st respondent was
permitted to address us directly. What she said in open Court gave us the
impression that she was on leave when the Minister granted stay on 02.02.2010,
and it was the Minister, and not she, who had disobeyed the order of this Court.
As the counter affidavits filed by her make no mention of her absence, or that
she did not issue the memo dated 2.2.2010, we enquired whether she was willing
to file an affidavit in this regard. The 1st respondent, however, stated that
she took full and complete responsibility for non-compliance with the orders of
this Court. We do not, therefore, propose to examine any further the
questionable and singular role of the Hon'ble Ministers in
obstructing/interfering with the due course of justice, and in thwarting
compliance with the orders of this Court. Suffice to note that neither is it the
1st respondent's case, nor do the records produced before us show, that she had
informed/advised the Minister that the order of stay passed by him was not only
in violation of the orders of this court, but also interfered with the
administration of justice, and thereby amounted to contempt of Court.
21. That the executive has no power to sit in judgment over orders of Court,
or to grant stay of the auction which this Court had directed the respondents to
conduct, cannot be, and has not been, disputed by any of the respondents -
contemnors. The order of the Government dated 2.2.2010, unilaterally staying
the auction which was directed to be held by this Court, is not only in
violation of the order of this Court but also interferes with the administration
of justice. By issing proceedings dated 02.02.2010, informing the 4th
respondent that the Government had granted stay of the auction, the 1st
respondent, and in directing the 4th respondent not to proceed with the auction
the 2nd respondent, in effect, have directed the 4th respondent to disobey the
order of this Court dated 25.08.2009 whereby they were required to conduct
public auction for grant of leasehold rights of the cinema theatre. The
proceedings of respondents 1 and 2, both dated 02.02.2010, interfere with, and
obstruct, the course of justice. Any interference with the course of justice,
or any obstruction caused in the path of those seeking justice, is an affront to
the majesty of law and the conduct of interference/obstruction is punishable as
Contempt of Court. Law of contempt is one way in which the due process of law is
prevented from being perverted, hindered or thwarted. If the act complained of
causes hindrance in the discharge of due course of justice, or tends to obstruct
the course of justice or interferes with the due course of justice, the conduct
complained of constitutes contempt of court. (Ram Autar Shukla v. Arvind
Shukla21). Whenever an act adversely affects administration of justice, or
tends to impede its course, or shakes public confidence in a judicial
institution, the power of contempt can be exercised to uphold the dignity of the
court of law and protect its proper functioning. (ITAT v. V.K. Agarwal22). The
process of due course of administration of justice must remain unimpaired.
Public interest demands that there should be no interference with the judicial
process, and the effect of the judicial decision should not be pre-empted or
circumvented. (Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers Bombay (P) Ltd.,23). This contempt case was filed on 18.6.2010, and
a copy of the affidavit filed in support of the Contempt Case was served both on
the Standing Counsel for Nalgonda Municipality and the Government Pleader for
Municipal Administration. No action was taken by respondents 1, 2 and 4, to
comply with the order of this Court, till the contempt case was admitted and
notice in Form-I issued on 13.08.2010. The Government note file dated 21.08.2010
records that the Government Pleader for Municipal Administration and Urban
Development had informed the 1st respondent that the Contempt Case was admitted
on 13.8.2010. It is evident therefrom that at least on 21.8.2010, if not
earlier, the 1st respondent was aware that the contempt case had been admitted
by this Court. It is only thereafter that the 1st respondent convened the
review meeting on 31.8.2010, and directed the 4th respondent to go ahead with
auction of the cinema theatre without issuing fresh auction notice, and finalize
the auction process by 9.9.2010.
22. Both before and after the stay, granted by the Government on 02.02.2010,
expired on 01.05.2010 respondents 1 and 2, who are the Principal Secretary to
the Government and the Commissioner and Director of Municipal Administration,
have only been addressing letters beseeching the fourth respondent to comply
with the orders of Court. (letter of the 1st respondent dated 12.11.2009, and
the 2nd respondent dated 15.07.2010). The counter affidavits filed by
respondents 1 and 2 are silent as to why they chose not to take disciplinary
action against the fourth respondent earlier for his procrastination in
complying with the orders of Court. Failure on the part of respondents 1 and 2
to comply with the orders of this Court, when seen in the light of the direction
given by them to the fourth respondent on 02.02.2010, (in effect directing him
not to comply with the orders of this Court), cannot be said to be casual,
accidental or unintentional. It is established beyond doubt that violation of
the order of this Court dated 25.08.2009 by respondents 1 and 2 is willful and
deliberate.
23. In his counter affidavit, the fourth respondent states that the 1st
respondent had informed him that the Government had stayed the auction notice
issued by him for a period of three months; the 2nd respondent had also
addressed letter dated 02.02.2010 informing him about the stay granted by the
Government for a period of three months, he was directed not to conduct auction
and was asked to submit his compliance report; as he was an officer subordinate
to the 1st and 2nd respondents, he had no other go except to follow the
directions of the Government; he had, therefore, stopped auction of leasehold
rights of the theater scheduled to be held on 03.02.2010; a notification to that
effect was published in the newspapers on 02.02.2010; since the stay granted was
to expire on 03.05.2010 he had sought clarifications from the 2nd respondent on
29.06.2010; the 2nd respondent had informed him, vide letter dated 30.06.2010,
to take necessary action as per the directions of this Court; however, due to
non-receipt of clarification, he had addressed another letter dated 08.07.2010;
and subsequently the 2nd respondent, vide letter dated 15.7.2010, had furnished
clarifications to the queries raised by him; in compliance with the orders of
this Court, he had issued a notice of eviction on 13.8.2010 which was served on
the 6th respondent on 18.8.2010; and he had conducted the auction on 9.9.2010.
24. It is evident from the letter of the 2nd respondent dated 15.07.2010 that
the fourth respondent was unnecessarily seeking clarifications from time to
time, and was not implementing the orders of the Court. This necessitated the
2nd respondent directing the 4th respondent not to approach his office in future
for further clarification on pain of disciplinary action. The said letter of
the 2nd respondent also makes it clear that the 4th respondent was dragging on
the matter by entering into protracted correspondence, thereby avoiding
complying with the orders of this Court. Any difficulty which the 4th
respondent may have had, in complying with the order of this Court, could only
have been addressed to this Court by way of an application seeking clarification
or for extension of time to comply with the order. Failure to comply with orders
of Court, on the excuse that the contemnor had to consult his superiors before
complying with such orders, is of no avail when he is asked to show cause why he
should not be convicted for contempt (Taluri Seshaiah v. M. Narayana Rao24; N.S.
Kanwar3). This letter of the 2nd respondent dated 15.7.2010 fortifies the
apprehension expressed by the petitioner, in his letter dated 25.1.2010, that
the 4th respondent was in collusion with, and was acting at the dictates of, the
Chairman, Nalgonda Municipality. The fact that the notice of eviction issued by
the fourth respondent, allegedly on 13.8.2010, was served on the lessee, (who is
in the same town), only on 18.8.2010 also lends credence to the submission of
the Learned Counsel for the petitioner that the 4th respondent had ante-dated
the eviction notice to give an impression that action had been initiated by him
even before the contempt case was admitted on 13.8.2010. It does seem as if
the fourth respondent had acted only after the contempt case was admitted, and
notice in Form I was issued, obviously to avoid being punished for contempt.
From the letter of the 4th respondent dated 9.9.2010, addressed to the 2nd
respondent, it is clear that, among the four who participated in the auction
held on 9.9.2010, Sri P. Satyanarayana (the brother of the Chairman of Nalgonda
Municipality), had offered the highest bid of Rs.33,000/- per month.
Respondents 5 and 6 were thus successful in their endeavour in avoiding vacating
the premises for more than a year after this Court had passed orders on
25.8.2009. Failure of the 4th respondent to either conduct auction or to evict
the 6th respondent for more than a year, after this Court passed orders on
25.08.2009, is not for reasons of genuine inability to comply with the terms of
the order of this Court.
25. The 1st respondent, in having issued the said memo dated 02.02.2010, and
the 2nd respondent in directing the 4th respondent, by his letter dated
02.02.2010, not to conduct auction have willfully and deliberately violated the
order of this Court, requiring all three of them (i.e, respondents 1,2, and 4)
to ensure lease of the scheduled property by public auction, for more than a
year. Further the 4th respondent, in entering into protracted correspondence
with the 2nd respondent instead of seeking clarification from this Court, has
avoided complying with the order of this Court, requiring him to evict the 6th
respondent from the Municipal property and conduct auction for over a year. It
must, necessarily, be held that disobedience by respondents 1, 2 and 4, of the
orders of this Court, is wilful.
26. Respondent 1, 2 and 4 would state in unison that they have the highest
regard and respect for Court orders; they never intended to disobey the orders
of Court; and the delay in implementation was neither willful nor deliberate but
was only because of circumstances. All of them have tendered their
unconditional apology.
27. Learned Advocate General, appearing on behalf of respondents 1 and 2,
would submit that, since the order of this Court requiring the respondents to
conduct auction of the property has been complied with, on the auction being
held on 09.09.2010, the delay in complying with the order would, at best, amount
to technical contempt and, as the respondents have tendered their unconditional
apology, this Court ought not to punish them for Contempt of Court. While
drawing attention of this Court to the Circular of the 1st respondent dated
17.11.2009, Learned Advocate General would submit that the very fact that the
1st respondent had instructed all Municipal Commissioners in the State of A.P.
to resort to public auction, as directed by this Court, was proof of her genuine
respect for orders of Court. He would request that a sympathetic view be taken
more so as respondents 1 and 2 have done their utmost to ensure that the order
of this Court was complied with in all promptitude. He would rely on Debabrata
Bandhopadhyaya v State of W.B25; Suresh Chandra Poddar v. Dhani Ram26; Syed
Maqdoom Mohiuddin v. Saudagar Anwar27; and K. Madalaimuthu v. State of T.N.28.
28. Sri Ravishankar Jandhyala, Learned Counsel for the 4th respondent, would
submit that, but for the order of the Government dated 02.02.2010, the auction
as directed by this Court would have been held on 03.02.2010; the 4th respondent
was an officer subordinate to respondents 1 and 2, and was bound to follow the
orders of the Government, and not hold auction as the Government had granted
stay; the 4th respondent had sought clarifications from respondents 1 and 2 as
to the manner in which the auction should be held again, as some of the bidders
had withdrawn their deposits; failure on the part of respondents 1 and 2 to
furnish clarification within time had resulted in the delay in complying with
the order of this Court; the direction of this Court to evict the 6th respondent
had also been complied with after the auction was held on 09.09.2010; and, since
there is no violation of the order of this Court as on date, this Court should
take a lenient view, and not punish the 4th respondent for Contempt of Court,
more so as he has tendered his unconditional apology.
29. In contempt proceedings the court is both the accuser and the judge of the
accusation. It should act with circumspection making allowances for errors of
judgment and difficulties. It is only when a clear case of contumacious conduct,
not explainable otherwise, arises that the contemner must be punished.
Punishment under the Law of Contempt is called for when the lapse is deliberate
and in disregard of one's duty and in defiance of authority. To take action in
an unclear case is not to be encouraged. (Debabrata Bandhopadhyaya25). The
power of contempt is not intended to be exercised as a matter of course. Courts
should not feel unduly touchy when they are told that their orders have not been
implemented forthwith. If the court is told that the direction or the order of
the court has been complied with subsequently, albeit after receipt of notice of
contempt, Courts are expected to show judicial grace and magnanimity in dealing
with the action for contempt. (Suresh Chandra Poddar26; and Syed Maqdoom
Mohiuddin27). In K. Madalaimuthu28, the Supreme Court observed:-
"........We have perused the apology tendered by the respondents in their
affidavit. The apology appears to be genuine. Since the respondents have purged
the contempt and taking a lenient view of the matter and considering their age
and future prospects, we dispose of the contempt petition by accepting their
unconditional apology made in Court and in the affidavits. The contempt petition
is disposed of accordingly. The contempt notice is discharged........"
30. It is no doubt true that the respondents-contemnors have expressed
apology, and the 1st respondent issued circular dated 17.11.2009 directing all
Municipal Commissioners in the State to conduct public auction on expiry of 25
years lease of municipal property. Likewise the 4th respondent issued the notice
of eviction on 21.11.2009, and the auction notice on 07.01.2010. While the
respondents may not have acted with promptitude in complying with the order of
this Court dated 25.08.2009 within two months, what shocks us, however, is not
the delay in compliance till 7.1.2010 but the flagrant interference with the due
course of justice thereafter. Respondent No. 1 is held guilty of contempt for
having issued memo dated 02.02.2010, and the 2nd respondent in addressing the
letter dated 02.02.2010 to the 4th respondent, directing him not to proceed with
the auction. Both respondents 1 and 2 have, in effect, directed the 4th
respondent to disobey the order of this Court. A mere statement made by a
contemnor before the court that he apologises is hardly enough to amount to
purging himself of contempt. The court must be satisfied, of the genuineness of
the apology. If the court is so satisfied, and on its basis accepts the apology
as genuine, it has to make an order holding that the contemnor has purged
himself of contempt. (Pravin C. Shah v. K.A. Mohd. Ali29). An apology is not
intended to operate as a universal panacea. (M.Y. Shareef v. Judges of Nagpur
High Court30; Pravin C. Shah29; T.N. Godavarman Thirumulpad (102) through the
Amicus Curiae v. Ashok Khot31). 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
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
Authority13). Only then is it of any avail in a court of justice. Unless that is
done, not only is the tendered apology robbed of all grace but it also ceases to
be a full and frank admission of a wrong done, which it is intended to be.
(Hiren Bose, Re32; Patel Rajnikant Dhulabhai10). The apology tendered by the
contemnor, to be accepted by the Court, should be a product of remorse. (M.C.
Mehta v. Union of India33). Public interest demands that when a person has
interfered with the judicial process, the judicial decision should not be pre-
empted or circumvented merely by a conditional or an unconditional apology.
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
Shukla21).
31. In L.D. Jaikwal v. State of U.P.34, the Supreme Court observed:-
".........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).
32. The apology tendered by the respondents is neither a product of remorse
nor is there any evidence of real contrition on their part. It is but a lofty
expression used only to avoid being committed for contempt. Accepting such an
apology, in the facts of the present case, would result in the contemnors going
scot free after committing gross contempt of Court.
33. The next question which arises for consideration is the nature and extent
of penalty to be imposed on the respondents-contemnors on their being found
guilty of contempt. There is an element of public policy in punishing civil
contempt, since the administration of justice would be undermined if the order
of a Court of law can be disregarded with impunity. (Patel Rajnikant
Dhulabhai10; Attorney General v. Times Newspaper Ltd35). The power to punish
for contempt is intended to maintain an effective legal system, and is exercised
to prevent perversion of the course of justice. (Kapildeo Prasad Sah8; Patel
Rajnikant Dhulabhai10). There are certain well recognized principles which
govern the exercise of power and jurisdiction to punish for contempt. The power
to commit for contempt will not be used for the vindication of a Judge as a
person but only with a view to protect the interests of the public for whose
benefit, and for the protection of whose rights and liberties, the courts exist
and function. Another factor which a High Court will take into consideration,
in exercising its contempt jurisdiction, is to ascertain whether the Contempt is
merely technical, slight or trifling in character. If it is so the Court will be
satisfied with an expression of genuine regret and will not proceed to inflict
punishment on the contemnor. (Advocate General, Andhra Pradesh, Hyderabad v. V.
Ramana Rao36). It is not only the power but the duty of the court to uphold and
maintain the dignity of courts and majesty of law which may call for the extreme
step of punishing the person for contempt of court. For proper administration
of justice, and to ensure due compliance with the orders passed by it, the Court
would not hesitate in wielding the potent weapon of contempt. (Patel Rajnikant
Dhulabhai10). The summary jurisdiction, exercised by Superior Courts, in
punishing contempt of their authority, exists in order to prevent interference
with the course of justice; to maintain the authority of law as is administered
in the Court; and thereby protect the public interest in ensuring the purity of
administration of justice (Hira Lal Dixit v. State of U.P.37).
34. While awarding sentence on a contemnor, the Court does so to uphold the
majesty of the 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 v. T.R. Dhananjaya38). 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 Sarkar12). 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. (Jennison11).
35. Under Section 12(1) of the Contempt of Courts Act, save as otherwise
expressly provided in the Act or any other law, a contempt of court may be
punished with simple imprisonment for a term which may extend to six months, or
with fine which may extend to two thousand rupees or with both. Under Section
12(3), notwithstanding anything contained in Section 12, where a person is found
guilty of civil contempt the Court, if it considers that a fine will not meet
the ends of justice and that a sentence of imprisonment is necessary shall,
instead of sentencing him to simple imprisonment, direct that he be detained in
civil prison for such period not exceeding six months as it may think fit.
Section 13(a) postulates no punishment for contemptuous conduct in certain cases
and, unless the Court is satisfied that the contempt is of such a nature that
the act complained of substantially interferes with the due course of justice,
the question of imposing punishment would not arise. It is evident from Section
12(3) read with 13(a) of the Contempt of Courts Act, 1971 that the Legislature
intended that a sentence of fine should be imposed in normal circumstances,
(Smt. Pushpaben v. Narandas V. Badiani39), and a sentence of imprisonment should
be restricted to cases where the contumacious act is of such magnitude that a
mere sentence of fine would not suffice. The jurisdiction in contempt is seldom
exercised by Courts except when they find that, in addition to failure to comply
with their orders, obstruction has been caused to their primary function of
administering justice as authorities charged with that function. (Dulal Chandra
Bhar v. Sukumar Banerjee40). It is not enough that there should be some
technical contempt of court. It must be shown that the act of contempt had
substantially interfered with the due course of justice which has been equated
with "due administration of justice". Substantial interference with the course
of justice is the requirement for imposition of punishment. The Contempt of
Courts Act places an obligation on to the Court to assess the situation itself
as regards the factum of any interference with the due course of justice or of
obstructing the administration of justice. (Murray & Co. v. Ashok Kr.
Newatia41). Anyone who deflects the course of judicial proceedings, or sullies
the pure stream of the judicial process, must be held to have interfered with
the due course of justice, and to have obstructed administration of justice.
Such persons must be punished not only for the wrong done, but also to deter
others from indulging in similar acts, which shake the faith of people in the
system of administration of justice. (Chandra Shashi v. Anil Kumar Verma42;
Dhananjay Sharma v. State of Haryana43).
36. The 1st respondent, in issuing the proceedings dated 2.2.2010 informing
the fourth respondent that the auction notice dated 7.1.2010,(which was issued
to comply with the order of this Court), was stayed and the second respondent in
directing the 4th respondent, vide proceedings dated 2.2.2010, to stop further
process of auction, have interfered with the due course of justice. Likewise
the 4th respondent, despite the order of the Single Judge having been suspended
by the Division Bench on 4.3.2009, did not take immediate action to evict the
6th respondent from the scheduled premises. But for the ex-facie illegal order
of the Government nothing prevented the fourth respondent after 4.3.2010 from
evicting the 6th respondent, and in taking possession of the cinema theatre. It
is only five and half months thereafter that the fourth respondent served the
notice, under Section 194(1)(b) of the A.P. Municipalities Act, on 18.08.2010
requiring the sixth respondent to vacate the premises within thirty days. The
fourth respondent, by entering into needless correspondence with the second
respondent, has successfully dragged on the matter for nearly a year from when
the order was passed on 25.08.2009 till the contempt case was admitted by this
Court on 13.8.2010. His failure to act with promptitude, and resorting to
dilatory tactics, has hindered the due course of justice.
37. While Courts are not hypersensitive, and ordinarily impose a sentence of
fine as punishment for contempt, the respondents in the present case have
interfered with the administration of justice, and have made a mockery of the
order of this Court. The respondents, by their contumacious acts, have
willfully disobeyed the order of the Court. Such open defiance of the order of
the Court is contempt of such a nature as to have substantially interfered with
the due course of justice for which imposition of a sentence of fine alone would
not meet the ends of justice. Such flagrant violation of the orders of the
Court must be dealt with sternly. In our considered opinion, on the facts and
in the circumstances of this case, imposition of fine in lieu of imprisonment
will not meet the ends of justice. (Patel Rajnikant Dhulabhai10). Where public
interest demands the Court will not shrink from exercising its power to impose
punishment even by way of imprisonment, in cases where a mere fine may not be
adequate, to let people know that they cannot, with impunity, hinder or obstruct
or attempt to hinder or obstruct the due course of administration of justice.
(Hira Lal Dixit37). In Dibakar Satpathy v. Hon'ble C.J. & Justices of Orissa
High Court44, the Supreme Court held that a direction to ignore the decision of
the High Court, even though it was binding on them, was a flagrant interference
with the administration of justice by Courts and a clear contempt of court.
38. Respondents 1, 2 and 4 are sentenced under Sections 12(3) read with 13(a)
of the Contempt of Courts Act. Respondents 1 and 2 shall be detained in civil
prison for a period of fifteen days, and shall pay a fine of Rs. 2,000/- each.
The fourth respondent shall be detained in civil prison for one month, and shall
pay a fine of Rs.2000/-. As required under Rule 32(1) of the Contempt of Court
Rules, 1980 respondents 1, 2 and 4 shall be entitled to subsistence allowance,
in accordance with their status, during the period of their detention in civil
prison. The subsistence allowance for respondents 1 and 2 is fixed at Rs.750/-
per day, and for the fourth respondent at Rs.500/- per day. The State
Government shall bear the cost of the subsistence allowance payable to
respondent 1, 2 and 4.
The contempt case is, accordingly, disposed of.
_____________________
GODA RAGHURAM, J
___________________________
RAMESH RANGANATHAN, J
.04.2011
Note: L.R. copy to be marked
B/o
MRKR/ASP
Dated: 8-4-2011
The learned Advocate General for respondents 1 and 2 and Sri Ravi Shankar
Jandhyala, the learned counsel for the 4th respondent request that the sentence
be kept in abeyance/suspended to enable these respondents sentenced by the order
in the contempt case to pursue appellate remedies.
In view of the oral request, the order in the contempt case sentencing
respondents 1, 2 and 4 is suspended for a period of one month.
The original Government records have been furnished for the perusal of this
Court by the office of the learned Advocate General. The Registrar (Judicial)
shall return these records to the office of the learned Advocate General after
obtaining due acknowledgement for the same.
?1 (1980) 3 SCC 311
2 (2003) 1 SCC 644
3 1995 Cri.L.J.1261 (Punjab & Haryana HC DB
4 1967(1) An.W.R.129
5 2005(6) SCC 98
6 2006(1) SCC 613
7 (2004) 7 SCC 261)
8 (1999) 7 SCC 569
9 (2007) 7 SCC 689
10 (2008) 14 SCC 561
11 1972(1) All.E.R 997
12 2002(4) SCC 21
13 (1995) 3 SCC 507
14 AIR 1960 SC 190
15 (1999) 2 SCC 537
16 (2003) 11 SCC 1
17 1986 (2) A.L.T. 131
18 (1972) 3 All ER 101
19 (1999)4 All ER 486
20 (1972) (3) All ER 101 (House of Lords
21 1995 Supp (2) SCC 130
22 (1999) 1 SCC 16
23 (1988) 4 SCC 592
24 1967 Cri.L.J. 19 (A.P.H.C.)
25 AIR 1969 SC 189
26 (2002) 1 SCC 766
27 (1998) 5 SCC 729
28 (2007) 13 SCC 204
29 (2001) 8 SCC 650
30 AIR 1955 SC 19
31 (2006) 5 SCC 1
32 AIR 1969 Cal 1
33 (2003) 5 SCC 376
34 (1984) 3 SCC 405
35 1974 AC 273
36 AIR 1967 AP 299
37 AIR 1954 SC 743
38 (1995) 6 SCC 249
39 AIR 1979 SC 1536
40 AIR 1958 Calcutta 474
41 (2000) 2 SCC 367
42 1995(1) SCC 421
43 (1995) 3 SCC 757
44 AIR 1961 SC 1315
