1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (CONTEMPT JURISDICTION) FRIDAY, THE 1ST DAY OF APRIL, 2011 THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE B.RAJENDRAN CONTEMPT PETITION No.910 of 2010 ************ Deivanayagam, President, Health India Foundation, 101, Usman Road, T.Nagar, Chennai 17. ... Petitioner Vs Vimala Ramalingam, President, Indian Red Cross Society, Tamil Nadu Branch, No.50, Montieth Road, Egmore, Chennai 7. ... Respondent Contempt Petition praying that this Court be pleased to pass appropriate orders against the respondents for not complying with the order of this Hon'ble Court dated 22/12/2008 and made in M.P.No.1 of 2008 in O.S.A.No.377 of 2008. The above Contempt Petition came up on 02/03/2011 before this Court for hearing in the presence of M/s.C.R.Ramakrishna, Advocate for Mr.K.Viswanath, Advocate for the Petitioner herein; and of M/s.S.Silambanan, Senior Counsel for M/s.Profexs Associates for the respondent https://hcservices.ecourts.gov.in/hcservices/ 2 herein; and the counter affidavit of Dr.Vimala Ramalingam, filed herein; and the additional affidavit & reply affidavit of Dr.Deivanayagam, filed herein; and the order of this court herein dated 05/01/2011; and having stood over for consideration; the Court made the following order:- The above contempt petition is filed alleging wilful disobedience of the order of this Court dated 22.12.2008 passed in M.P.Nos.1 & 2 of 2008 in O.S.A.No.377 of 2008. The facts leading to the filing of the present contempt petition are as follows. 2. The petitioner is the President of Health India Foundation which was registered on 14.4.2001. He had served in various capacities earlier, namely, as the Professor of Thoracic Medicine and Chest Physician at the Madras Medical College during the period between 1971 and 1989; the Dean of Sri Ramachandra Medical College & Hospital during the period between 1989 and 1992, the Superintendent of Government Tuberculosis Hospital, Tambaram during the period between 1992 and 2000 and WHO Consultant for HIV/AIDS. On and from 14.4.2002, the petitioner was allowed to run a HIV/AIDS clinic in the heritage building of the premises owned by the respondent- Indian Red Cross Society under a memorandum of understanding entered into between them on 21.8.2002. After a year, the petitioner requested for provision of additional space due to the inflow of patients. The https://hcservices.ecourts.gov.in/hcservices/ 3 respondent society had also allotted additional space in Brace Clinic for the use of the petitioner by their letter dated 30.9.2003. It appears that a letter was sent by the respondent society on 2.1.2008 to the petitioner to spare the space occupied by the petitioner as the activities of the respondent society had grown and that they wanted to demolish the old building which was unfit for use. Thereafter, on 7.1.2008, the respondent had requested the petitioner to move to the original place in the heritage building till major repairs to the old building are taken up and finished. The respondent also made it clear that the cabin occupied by the petitioner at the entrance of the main office building would not be available for use from 9.1.2008. This letter of the respondent had given cause to the petitioner to file a suit in C.S.No.37 of 2008 praying to pass a judgment and decree declaring the letter dated 7.1.2008 issued by the defendant society to the plaintiff as null and void and also to grant permanent injunction restraining the defendants, their men, agents and all persons claiming under them from interfering with the medical activities of the plaintiff at No.50, Montieth Road, Egmore, Chennai 600 008 in the premises of the defendant society, where the plaintiff foundation has been functioning. This Court, by order dated 11.1.2008, granted an ex parte order of injunction in O.A.No.44 of 2008. Thereafter, the respondent society took out Application https://hcservices.ecourts.gov.in/hcservices/ 4 Nos.443 and 443 of 2008 seeking to vacate the said order of injunction and also to reject the plaint. After considering the rival contentions, this Court, by order dated 2.4.2008, made the injunction absolute and dismissed the applications filed by the respondent society. Challenging the said order, the respondent society preferred O.S.A.No.461 of 2008 before this Court. 3. Thereafter, it is the case of the petitioner that the respondent started to give trouble by locking the gate, bathroom etc., and not allowed the petitioner to do service to the patients. Hence, he was constrained to file O.A.No.860 of 2008 seeking for an interim injunction restraining the respondent, their men, servants, agents and all persons claiming under them from renting, alienating, encumbering, creating charge of the premises at Door No.50 (second floor, main building), Montieth Road, Egmore, Chennai 600 008 to any commercial establishment or any other establishment. He also filed Appln.No.3699 of 2008 seeking for a direction to the respondent, their men to remove the tables, chairs, folded tables, chairs and other items stocked by them at the petitioner's consultation room for treatment of the patients at Door No.50 (ground floor), Montieth Road, Egmore, Chennai 600 008. By order dated 8.9.2008, both the applications were dismissed. Aggrieved by that order, the petitioner preferred the O.S.A.No.377 of 2008. Pending appeal, the petitioner also took out two https://hcservices.ecourts.gov.in/hcservices/ 5 applications in M.P.Nos.1 & 2 of 2008 seeking for an injunction restraining the respondent, their men, agents and all persons claiming under them from causing any inconvenience to the patients such as locking of main gates and not providing bathroom facilities to the patients of the petitioner at Door No.50 (Ground Floor), Montieth Road, Egmore, Chennai and also seeking for a direction to the respondent to remove the debris, broken tiles, construction materials which are causing obstruction to patients and doctors of the petitioner and other items stocked by them at the waiting room and also providing bathroom facilities. On consideration of the submissions made on behalf of the petitioner, this Court, by order dated 21.11.2008, granted interim injunction. 4. When the applications were again taken up for hearing on 19.12.2008, considering the rival contentions and also the allegation of persistent interference in spite of the order of this Court, this Court appointed an Advocate Commissioner to inspect the premises and submit a report as to whether the debris were removed or still stored/dumped and whether bathroom facilities were provided to the patients and whether the place was conducive for giving treatment to the patients. Accordingly, such a report was filed on 22.12.2008 by the Advocate Commissioner. After taking on record the report of the Advocate Commissioner and on hearing the learned counsel https://hcservices.ecourts.gov.in/hcservices/ 6 for the parties, this Court ultimately issued the following directions as an interim arrangement:- "7. We have carefully considered the rival contentions as well as perused the reports filed by the learned Advocate Commissioner. The dispute as to whether the petitioner should be allowed to continue in the same premises or not or whether he should be evicted is a matter to be finally adjudicated at the time of disposal of the appeal. However, in the meantime, having regard to the fact that the petitioner is doing charitable work by providing treatment to the needy patients and the premises which is under occupation of the petitioner requires immediate renovation, as could be seen from the reports of the Advocate Commissioner, we do hereby direct as follows:- (i) The petitioner must be provided with the space of 400 sq.ft., in the heritage building with a longer corridor to be used by the patients. (ii) The petitioner must be provided with one bathroom attached to the heritage building for his exclusive use and for the use of the other para-medical staff. (iii) One bathroom which is situated 60 feet away from the heritage building must be made https://hcservices.ecourts.gov.in/hcservices/ 7 available for the use of the patients of the petitioner. (iv) The petitioner is entitled to enter through the main gate which is kept open or use the separate gate from 7.45 a.m., onwards in order to treat the patients coming to the hospital. (v) The petitioner will handover the premises under occupation for renovation work and the respondent shall complete the renovation work on or before the end of March, 2009. The above directions are only an interim arrangement pending final orders to be passed in the appeal after adjudication. The parties are at liberty to approach this Court in the interregnum for any order, if required." 5. Since the renovation work could not be completed within the period stipulated by this Court, the respondent society took out an application on 28.4.2009 in M.P.No.1 of 2009 seeking for extension of time of 30 weeks from 1.4.2009 for compliance of the directions of this Court dated 22.12.2008. This Court, by order dated 30.4.2009, directed the respondent to provide bathroom facility to the patients and extended the time upto 19.6.2009 to comply with the directions. In the meantime, the petitioner filed https://hcservices.ecourts.gov.in/hcservices/ 8 M.P.Nos.3 & 4 of 2009 to permit him to provide shamiana/covering which would be removed after the petitioner occupies the renovated area originally occupied by him and also to direct the respondent to erect a shamiana/covering to protect adequately the patients in the area of 500 sq.ft. By order dated 14.5.2009, on hearing both sides, this Court issued the following directions:- "8. In such view of the matter, the following directions are issued, which are purely temporary, by making it clear that this order creates no right on the part of the petitioner. (i) The petitioner is permitted to put up a shamiana in the front portion of the entrance of the building in such a manner that does not affect free flow of vehicles and moving of patients as well as Doctors reaching other areas including students, who occupy the hostel in the rear building. (ii) It is also made clear that whenever the respondent through Electricity Board puts up under the ground cable, the same shall not be obstructed by the petitioner or any other patients who come for consultation. While putting up a shamiana by the petitioner, it is open to the respondent society to supervise in order to preserve the nature of the building. If in the meantime, the construction is completed before the https://hcservices.ecourts.gov.in/hcservices/ 9 said date, it is made clear that the petitioner shall remove the shamiana and occupy the constructed portion. (iii) It is made clear that the petitioner and the patients who approach the petitioner for the purpose of treatment, take earnest steps to use the verandah area, which is a covered area in order to minimise the maximum interference to the respondent to complete the renovation work. (iv) It is made clear that this arrangement is purely temporary and does not confer any right on the petitioner nor take away the right of the respondent society which has got any defence available to it. Post this case on 18.6.2009." 6. Aggrieved against the said order, the respondent society preferred Special Leave Petition Nos.13968 and 13969 of 2009 before the Supreme Court and the Supreme Court vide order dated 8.6.2009 dismissed the special leave petitions and requested the High Court to dispose of the matter on 18.6.2009. Thereafter, according to the respondent, settlement talks were on and the matter has been adjourned frequently for the said purpose at least till 21.7.2010. According to the respondent, as the petitioner is suffering from TB and taking treatment and he will not be in a position to treat HIV/AIDS patients, the respondent society filed an affidavit dated 19.7.2010 https://hcservices.ecourts.gov.in/hcservices/ 10 before this Court undertaking that the petitioner will not be evicted without due process of law. The relevant paragraph of the affidavit reads thus: "14. It is therefore submitted that the defendant IRCS, Tamil Nadu Branch undertakes to withdraw the letter dated 7.1.2008 as the same has become infructuous and the defendant will maintain the status quo as on date, enabling the plaintiff to use the area of about 400 sq.ft., and in addition of about 640 sq.ft., of corridor space in the heritage building until the plaintiff is evicted by due process of law. The OSA 377 of 2008 and the interim applications therein have all become infructuous. In view of the above, the OSA 461 of 2008 is not pressed. Hence the OSA 377 of 2008 and 461 of 2008 may be disposed on the above terms by this Hon'ble Court in the interest of justice." In the meantime, the petitioner has taken out the present contempt petition on 12.7.2010 alleging that renovation work has not been completed and the premises has not been handed over to the petitioner. When the contempt petition came up for admission on 22.7.2010, this Court permitted the petitioenr to serve notice on the respondent. After repeated adjournments, as the respondent was not represented, this Court directed the appearance of the President of the society before this Court on 6.12.2010. https://hcservices.ecourts.gov.in/hcservices/ 11 However, it was represented on that date that since the President was hospitalised, the Vice President will appear on the next adjourned date. Even after two adjournments, the Vice President did not appear which necessitated this Court to pursue the contempt proceedings against the respondent. Hence, this Court, by order dated 5.1.2011, directed the presence of the respondent Tmt.Vimala Ramalingam before this Court and also directed the respondent to handover the portion of the premises, which was handed over by the petitioner to the respondent pursuant to the impugned order of this Court, forthwith on production of a copy of the order. Pursuant to the said order, the respondent appeared before this Court on 2.2.2011 and filed a counter affidavit. This Court posted the matter for enquiry on 17.2.2011 and dispensed with the personal appearance of the respondent for the time being. 7. Mr.C.R.Ramakrishna, learned counsel for the petitioner has submitted that the rule of law is the foundation of a democratic society and the judiciary is the guardian of rule of law. The respondent should have respected the dignity and authority of this Court and should have complied with the orders of this Court. As the disobedience is wilful, the respondent should be punished for contempt. 8. On the other hand, Mr.S.Silambanan, learned senior counsel for the respondent has submitted that the https://hcservices.ecourts.gov.in/hcservices/ 12 respondent has every respect for this Court and has never intended to either discard or disobey the orders of this Court. It is only for the reasons stated in the counter affidavit, the respondent could not comply with the order in time. As of now, the petitioner has been handed over the portion of the premises and the petitioner is also not holding the post of President as of now. The respondent has also expressed her unconditional apology in the event this Court finds her guilty of contempt. The learned senior counsel also submitted that taking into consideration of the present illness of the respondent, a lenient view may be taken in regard to the punishment in the event this Court comes to the conclusion that there has been a wilful disobedience. 9. We have given our anxious consideration to the submissions of the respective learned counsel. The Supreme Court in the judgment in Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, has observed as follows:- "The wilful breach of an undertaking given to a court amounts to 'civil contempt' within the meaning of Section 2 (b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to the Supreme Court in the consent terms they are clearly liable for having committed contempt of court." In fact, the Supreme Court in Rama Narang (5) v. Ramesh Narang and another, (2009) 16 SCC 126, has observed as https://hcservices.ecourts.gov.in/hcservices/ 13 follows:- "51. In order to maintain sanctity of the orders of the highest court of the country, it has become imperative that those who are guilty of deliberately disregarding the orders of the court in a clandestine manner should be appropriately punished. The majesty of the court and the rule of law can never be maintained unless this Court ensures meticulous compliance with its orders." 10. Keeping the above dictum of the Supreme Court in mind, the facts of the present case must be considered. There is no dispute that this Court in its order dated 22.12.2008 directed the petitioner to handover the premises under his occupation for renovation work with a further direction to the respondent to complete the renovation work on or before the end of March, 2009. However, that order has not been complied with. Nevertheless, the respondent by way of the counter affidavit has explained the reasons for non-compliance of the direction of this Court by stating that the respondent society has been getting funds from the Italian Red Cross Society for renovation and that the Italian Red Cross would release the funds in instalments depending upon the progress of the work. It is also stated that the funding agency has made it clear that the respondent society cannot select piece https://hcservices.ecourts.gov.in/hcservices/ 14 meal sections or areas for renovation and it should entrust the entire area for renovation in order to have maximum utility and maximum service to the patients. It is also stated that almost the entire work has been completed, but for the portion of 120 sq.ft., which housed the Brace Clinic. In fact, with the same averments, the respondent had earlier approached this Court for extension of time and this Court also granted further time for completion. But the respondent could not complete the renovation in spite of such extension only for the aforesaid reasons of delay in receiving financial assistance from foreign agency. Though we find disobedience of the order of this Court in not completing the renovation work within the stipulated time and in not handing over the portion of the premises to the petitioner, in our opinion, the disobedience cannot be considered to be one of wilful disobedience warranting the invocation of power under the Contempt of Courts Act read with Article 215 of the Constitution of India to punish the respondent. That apart, considering the fact that the respondent was only holding the honorary post of President and the decision has to be taken at various levels and there is nothing personal pleaded against the respondent, except a general complaint that the society has not complied with the order, we are of the considered view that no punishment is warranted on the respondent in this case. Further, it has also been stated before this Court that the https://hcservices.ecourts.gov.in/hcservices/ 15 respondent had undergone a knee surgery and is bedridden and is also suffering from cancer. 11. We may also refer to the following judgment of the Supreme Court. In Anil Ratan Sankar and others v. Hirak Ghosh and others, (2004) 4 SCC 21, the Supreme Court has observed that mere disobedience of an order may not be sufficient to amount to a civil contempt. In our opinion, in order to punish a person for having committed contempt of an order of the Court, an element of willingness is an indisputable requirement. In The Advocate General, State of Bihar v. M/s Madhya Pradesh Khait Industries and another, AIR 1980 SC 946, the Supreme Court has observed that every abuse of the process of the Court may not necessarily amount to contempt of Court calculated to hamper the due course of judicial proceedings or the orderly administration of justice. In order to dispose the present contempt petition, we have kept the above law laid down by the Supreme Court. 12. In this context, we may also refer to the judgment in Linnet v. Coles (1986) 3 All ER 655, wherein Their Lordships have held as follows:- "Judges must be vigilant concerning the liberty of the subject. If Parliament gives them discretionary powers, it is not competent for them to refuse to exercise those powers. It would be a misuse of powers for a judge to say, "I know Parliament has https://hcservices.ecourts.gov.in/hcservices/ 16 given me a discretion to vary orders in contempt appeals and make just ones, but I'm never going to use them. Such is my concern for the liberty of the subject that I am prepared to allow a contemner who ought to be punished for contempt to go unpunished and that is so, notwithstanding that Parliament envisages that I could consider imposing a just punishment." We may also refer to the judgment of the Calcutta High Court in Prafulla Ranjan Sarkar v. Manindra Chandru Neogi, 1968 Cr.LJ 248 (Cal), wherein the Court held thus: "In Contempt of Court cases the Court should always proceed with the thought that law should be most jealously and carefully applied and the power is to be cautiously exercised with the greatest reluctance and anxiety, because of the betterment and welfare of the State and because the privileges of the Judges are involved. The Court should not be anxious of the vulgar desire to elevate itself for grasping after a pre-eminence by using this "legal thumbscrew" injudiciously and punishing for this "mysterious and undefinable offence", which is not only easy to omit but liable to "prompt and condign punishment". The https://hcservices.ecourts.gov.in/hcservices/ 17 Court should not be over or hyper- sensitive. It should not exercise this jurisdiction upon a mere question of propriety or on any exaggerated notion of the dignity of the Judges. It should be borne in mind that the Court is the protector of public justice and the Judges have no personal interest or concern in a case." 13. For all the above reasons, except observing that the respondent should have been little more cautious and should have taken steps to complete the renovation of the portion of the premises taken over from the petitioner within the time stipulated by this Court, we find no wilful disobedience of the order of this Court on the facts of this case. That apart, pursuant to the direction of this Court, the respondent had also handed over the portion of the premises to the petitioner. Hence, we are not inclined to pursue the contempt proceedings any further against the respondent. Accordingly, the contempt petition is closed with the aforesaid observations and the respondent is discharged from the contempt proceedings. Witness the Hon'ble Thiru M.YUSUF EQBAL, the Chief Justice of High Court at Madras, as aforesaid, this the 1st day of April, 2011. SD/- DEPUTY REGISTRAR (OS) //Certified to be true copy// Dated at Madras this the day of 2011. COURT OFFICER (O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the orders/judgments/Decrees in this format. https://hcservices.ecourts.gov.in/hcservices/ 18 SMV CONTEMPT PETITION No.910/2010 THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE B.RAJENDRAN ORDER DATED : 01/04/2011 FOR APPROVAL :18/05/2011 APPROVED ON :23/05/2011 https://hcservices.ecourts.gov.in/hcservices/