* THE HON’BLE SRI JUSTICE GODA RAGHURAM AND *THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + CONTEMPT CASE No.841 of 2010 % Dated 08-04-2011 # B.Krishna Reddy …. Petitioner Vs. $ 1. Smt. Pushpa Subrahmanyam and 5 others …. Respondents ! Counsel for the Petitioner: Sri M. Ratna Reddy ^ Counsel for the Respondents: The Advocate General G.P. for Municipal Admn. Sri Ravi Shankar Jandhyala <GIST: > HEAD NOTE: ? Citations: 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 THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CONTEMPT CASE No.841 of 2010 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 Industries[1]; Bijay Kumar Mahanty v. Jadu[2]). 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. Kanwar[3]). 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 Rao[4]) , 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 Joshi[5], Union of India v. Subedar Devassy PV[6], Prithawi Nath Ram v. State of Jharkhand[7]). 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[8]). 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. Muddaiah[9]; Patel Rajnikant Dhulabhai v. Patel Chandrakant Dhulabhai[10]). 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. Baker[11]). 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 Ghosh[12]); 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 Construction[13]). 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 Orissa[14]; Indian Airports Employees' Union v. Ranjan Chatterjee[15]; 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 Godha[16]). 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 Reddy[17]). 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’ Union[18]; Adam Phones Ltd v. Goldschmidt[19]). 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 Union[20]; 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