THE HIGH COURT OF ORISSA: CUTTACK CONTC No.913 of 2010 In the matter of an application for contempt arising out of W.P.(C) No.10386 of 2009, disposed of on 12.5.2010. M/s. Ortel Communications Ltd. …….. Petitioner -Versus- Mr. K.Raghuramaya and another …….. Opp.Parties. For petitioner … M/s.Sourya Sundar Das, K.Behera, S.Modi & S.S.Pradhan. For Opp. Party No.1 … M/s.Saurjya Kanta Padhi (Sr. Advocate) M.Padhi, A.Das & B.Panigrahi. For Opp. Party No.2 … Mr. M.B.Rao. P R E S E N T : THE HON’BLE CHIEF JUSTICE MR. V.GOPALA GOWDA & THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY. ----------------------------------------------------------------------------------------- Date of hearing: 23.09.2010 Date of judgment: 5.10.2010 ----------------------------------------------------------------------------------------- I.Mahanty, J. This contempt application has been filed by M/s. Ortel Communications Ltd. with a prayer to punish the Chairman of Paradeep Port Trust Ltd. (O.P. No.1) and a director of M/s. Manthan Broad Band Services Pvt. Ltd. (O.P. No.2) for causing deliberate violation of the direction of this Court passed in judgment dated 12.5.2010 in W.P.(C) No.10386 of 2009. 2. The petitioner herein, M/s. Ortel Communications Ltd. had filed the writ petition, i.e. W.P.(C) No.10386 of 2009 challenging the award of a tender by the Paradeep Port Trust for providing cable TV network system at Paradeep Port in favour of “M/s. Manthan Broad Band Services Pvt. Ltd”. Apart from the petitioner-M/s. Ortel Communications Ltd. another tenderer, M/s. Modent Antena Pvt. Ltd. had also filed W.P.(C) No.9134 of 2009 challenging the award of tender in favour of M/s. Manthan Broad Band Services Pvt. Ltd.. Both the aforesaid writ applications came to be disposed of vide a common judgment dated 12.5.2010, upholding the decision taken by the Paradeep Port Trust to award the contract in favour of M/s. Manthan Broad Band Services Pvt. Ltd. and observed in Paragraph-14 as follows: “xx xx xx Therefore, this Court feels that Paradeep Port Trust would grant ten days time to ‘Manthan’ to satisfy the Port Trust that it is capable or has permission to telecast all the channels which it is otherwise required to telecast, i.e. 60 channels and 40 pay channels. In the event it fails to do so within the time stipulated above, necessary steps shall be taken for annulling the decision and no agreement shall be executed.” 3. After the aforesaid judgment was passed on 12.5.2010, the present contempt application came to be filed on 31.5.2010 during the Summer Vacation of the Court and a memo was filed by the petitioner stating the reasons for mentioning which is to the following effect: “That this Hon’ble Court in its judgment dated 12.5.2010 directed the O.P. No.1, Paradeep Port Trust to allow 10 days time to O.P.No.2 to satisfy it that it has permission to telecast all the channels and further directed that incase O.P. No.2 fails to do so the selection process would be annulled and no agreement would be executed, in the meanwhile 10 days time has already expired but O.P. No.1 did not take 2 any steps to annulling the selection process. So the matter is very urgent in nature, this may kindly be listed on 01.06.2010 for admission.” 4. In accordance with the aforesaid memo, the matter came to be listed during the Summer Vacation, i.e. on 1.6.2010 wherein the Hon’ble Vacation Judges directed for issuance of notice to the parties and to file requisites within three days. But, the requisites were not filed within the time stipulated and the same were filed only on 23.6.2010, on which date, notices are issued fixing 20.7.2010 for appearance and show cause of the parties. 4.1. This matter was thereafter listed on 21.7.2010, on which date W.P.(C) No.10386 of 2009 was also listed, since a Misc. Case was filed therein by M/s. Manthan Broad Band Services Pvt. Ltd. seeking extension of time for compliance with the directions of this Court passed in judgment dated 12.5.2010. On the said date, the application for extension of time was allowed by this Court for the reasons noted in the separate order passed in the aforesaid writ application and on the self same date, i.e. on 21.7.2010, this Court issued notice to the contempt petitioner to show cause as to whether the petitioner has got “locus standi” to maintain the contempt petition as there was no order passed in its favour and the writ application filed by it had been dismissed. Further, the contempt petitioner was called upon to show cause as to whether during Summer Vacation a contempt matter could be construed as an “urgent matter” to be moved before the Vacation Judge. Accordingly, this matter thereafter was posted to 16.9.2010 and on the prayer of the petitioner’s counsel, matter stood adjourned to 23.9.2010 on which date, arguments were advanced by the learned counsel Mr.Patjoshi on behalf of the petitioner; Mr. S.K.Padhi, learned senior counsel on behalf of the Paradeep Port Trust and Mr. M.B.Rao, learned counsel appearing for the director of M/s. Manthan Broad Band Services Pvt. Ltd. 3 4.2. Mr. Patjoshi, learned counsel for the contempt-petitioner prayed that since this Court had extended the period of time as prayed for by M/s. Manthan Broad Band Services Pvt. Ltd. for compliance with the judgment dated 12.5.2010 passed in W.P.(C) No.10386 of 2009, he may be permitted to withdraw the contempt application as the same had become infructuous. Insofar as the issues raised by this Court in its order dated 21.7.2010 is concerned, he contended that the writ application filed by the contempt petitioner had not been “dismissed” but had been “disposed of” and since the Paradeep Port Trust had not complied with the direction of this Court, within the time stipulated, the same came to be the “cause of action” on the part of the petitioner to initiate a contempt proceeding, since the petitioner was vitally interested in the re-tender for providing cable TV connection at Paradeep Port Trust. He further submitted that the matter involved was of immense commercial interest to the petitioner and on this account a memo has been filed by the petitioner for listing the contempt matter during the Summer Vacation. He also submitted that the Hon’ble Vacation Judges, on being satisfied on the “urgency shown” by the petitioner in their memo, directed listing of this matter on 1.6.2010 and passed orders for issuance of notice to the opposite parties. He further submitted that listing of this matter during the Summer Vacation was on the directions of the Hon’ble Vacation Judges and since the same had been listed on the direction of the Hon’ble Vacation Judges, the matter was taken up for consideration during the Summer Vacation. 4.3. Mr. Patjoshi, learned counsel for the petitioner submitted that the “role of the petitioner” in the contempt proceedings, was merely to bring to the notice of the Court the violation of its directions and such initiation is permissible not only by a party to a legal proceeding but also by an outsider or a private party. He therefore, submitted that the petitioner was a party to the proceedings and that it is well settled that, a civil contempt could be initiated by a private party. In this respect, reliance was placed on the 4 judgment of the Hon’ble Supreme Court in the case of Om Prakash Jaiswal v. D.K.Mittal and another, JT 2000 (2) SC 293. 5. Mr. S.K.Padhi, learned counsel for the Chairman, Paradeep Port Trust (O.P. No.1) submitted that filing of the present contempt application amounts to a clear “abuse of the process of the Court”. In terms of the direction of this Court in W.P.C. No.10386 of 2009 vide its judgment dated 12.5.2010, the prayer of the petitioner therein for quashing of the decision of the Paradeep Port Trust to award the tender in favour of M/s. Manthan Broad Band Services Pvt. Ltd. was challenged by the petitioner. This decision of the Port Trust was affirmed by the Court and in the concluding Paragraph-17, this Court had decided not to interfere with the decision of the Paradeep Port Trust in this matter. Therefore, clearly the prayer of the petitioner having been turned down, even though the word “dismissed” is not mentioned in the order, yet effectively, the writ application of the petitioner had been dismissed. Even though the petitioner’s writ application had been dismissed, yet the petitioner went ahead and filed a contempt application, interalia, on the allegation that the Paradeep Port Trust have not acted in terms of the observations made in Paragraph-14 of the judgment by this Court. The aforesaid allegation raised while being wholly incorrect, the direction of this Court granting ten days time to M/s. Manthan Broad Band Services Pvt. Ltd., was complied with by the Paradeep Port Trust by issuing a letter to M/s. Manthan Broad Band Services Pvt. Ltd. on 1.6.2010 granting the said party with 10 days’ time to satisfy the Port Trust of its capability and/or necessary permission to telecast the number of channels committed by it in the tender. 5.1. Apart from the above, Mr. Padhi submitted that no contempt on the behest of the writ petitioner (whose writ petition has been dismissed) could have been filed even though M/s. Manthan Broad Band Services Pvt. Ltd. had not complied with the direction of the Paradeep Port Trust. The petitioner, M/s. Ortel Communications Ltd. had no locus standi to initiate a 5 contempt proceedings, since it was within the rights of the Paradeep Port Trust to decide regarding the necessity for re-tender. M/s. Ortel Communications Ltd. while being in the business of cable network, does not possesses any vested right to compel the Paradeep Port Trust to proceed with the tender and it was within the discretion of the Paradeep Port Trust to act in the best manner it chooses in order to protect its own interest. He further submitted that the “real cause” for filing the contempt petition by M/ s. Ortel Communications Ltd., (whose writ petition had been dismissed), was to arm twist the Paradeep Port Trust into annulling the tender awarded in favour of M/s. Manthan Broad Band Services Pvt. Ltd. He also submitted that no sooner the petitioner obtained the order dated 1.6.2010, whereby the Hon’ble Vacation Judges were pleased to issue notice, the entire objective behind the contempt petition was achieved by M/s. Ortel Communications Ltd. by publishing a further “notice” both in the Orissa TV (OTV) channel as well as the local newspapers including the daily ‘Samaj’ threatening television companies from providing permission to M/s. Manthan Broad Band Services Pvt. Ltd. for telecasting their channels under a further threat of contempt. 6. Mr. M.B.Rao, learned counsel for Opposite Party No.2 (Mr. S.K.Ghosh, the Director, M/s. Manthan Broad Band Services Pvt. Ltd.) reiterating the arguments advanced by Mr. Padhi, learned senior counsel appearing on behalf of the Paradeep Port Trust further submitted that while he entered appearance on behalf of Opposite Party No.2, no justification whatsoever has been stated in the contempt petition for impleading the Opposite Party No.2 as a contemnor. He further submitted that M/s. Manthan Broad Band Services Pvt. Ltd. have a number of directors and the petitioner have not indicated any reason as to why they chose to implead only the present Opposite Party no.2 in particular. Learned counsel further submitted that the petitioner-M/s. Ortel Communications Ltd. made an advertisement both in the television channels as well as in the local 6 newspapers, after the direction has been passed issuing notice in the present contempt application, threatening the television companies from offering their channels to M/s. Manthan Broad Band Services Pvt. Ltd. if they agree to supply their signals to them with the threat of ‘initiation’ of contempt. 7. Mr. Rao, learned counsel for Opposite Party No.2 placed reliance on a judgment of the High Court of Karnataka in the case of Banglore Development Authority v. Gururaj S/o. Late M.S. Prithviraj and B.V.Ram Murthy, reported in ILR (2007) KAR 5184, in support of his contention that, the act of the petitioner in filing the contempt application, even after its writ application was dismissed, amounted to an “abuse of the Court’s process” and the present case is very serious example of the abuse of the process of the Court since it intended to deceive the Court by suppressing material fact and/or by initiating the frivolous or vexatious contempt proceeding. 8. In the light of the contentions advanced by the learned counsel for the parties as noted hereinabove, it would be necessary for us to note that it is well settled that mere disobedience of an order may not be sufficient to amount to a “civil contempt” within the meaning of Section 2(b) of the Contempt of Courts Act, 1971 and the “element of willingness” is an indispensable requirement to substantiate the charge of contempt. In order to initiate contempt proceedings, there must be “contumacious act on the part of the accused and the same must be deliberate and intentional”. 8.1. In Hallsbury’s Laws of England, Fourth Edition, Vol-9 page 27 in the matter of “abuse of process” in general, the following has been mentioned: “The court has power to punish as contempt any misuse of the court’s process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court’s officers by deliberately suppressing a 7 fact, or giving false facts, may be a punishable contempt. Certain acts of a lesser nature may also constitute an abuse or process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt.” 8.2. We are further of the considered view that, every “abuse of the process of the court”, may not necessarily amount to Contempt of Court Abuse and such abuse of the process of the Court calculated to hamper the due course of a judicial proceedings or the orderly administration of justice, is Contempt of Court. In certain cases, the manner of the abuse of the process of the court may be suitably dealt with, as between the parties, by striking out pleadings under the provisions of Order-6, Rule-16 or in some other manner. But, on the other hand, it may be necessary to punish as a “Contempt”, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not only order to protect the dignity of the Court against insult or injury as the expression “Contempt of Court” may seem to suggest but also to protect and to vindicate the right of the public that the administration of justice shall not 8 be prevented, prejudiced, obstructed or interfered with. The term “abusing of the court’s process” can be applied to many different types of conduct but generally term connotes some misuse of the court’s process. 9. In the present case, we have carefully gone through the judgment dated 12.5.2010 rendered in W.P.(C) No.10386 of 2009, in which the petitioner had sought for cancellation of the decision made by the Paradeep Port Trust to award a contract for supply of Cable Television Connection at Paradeep Port Trust in favour of M/s. Manthan Broad Band Services Pvt. Ltd. The petitioner’s prayer was clearly and categorically turned down by this Court. Therefore, the writ application of the petitioner clearly stood dismissed. The further direction therein to the Paradeep Port Trust to allow ten days time to M/s. Manthan Broad Band Services Pvt. Ltd. to satisfy its capacity to supply the necessary number of channels, was a matter of concern between Paradeep Port Trust and M/s. Manthan Broad Band Services Pvt. Ltd and M/s. Ortel Communications Ltd. had no concern whatsoever with the aforesaid direction. The Paradeep Port Trust had in terms of the said direction issued notice to M/s. Manthan Broad Band Services Pvt. Ltd. providing ten days time from 1.6.2010. The present contempt application was filed by the petitioner on 31.5.2010 after the writ application had been dismissed and notices were issued on 1.6.2010. The petitioner-company sought to take full advantage of the issue of notice by making advertisements in the various local TV channels as well as in the local newspapers, threatening contempt to all the television companies as if they enter into any contract with M/s. Manthan Broad Band Services Pvt. Ltd. and that they would extend the contempt proceedings. This compelled the M/s. Manthan Broad Band Services Pvt. Ltd to approach the TDSAT, who in turn, were pleased to direct the said television companies to enter into contract with M/s. Manthan Broad Band Services Pvt. Ltd.. Due to such impediment caused by the petitioner’s company, M/s. Manthan Broad Band Services Pvt. Ltd. were also compelled to seek extension of time in Misc. 9 Case No.9713 of 2010 for compliance of the direction of this Court in the judgment dated 12.5.2010 in W.P.(C) No.10386 of 2009 and such Misc. Case was allowed by this Court vide order dated 21.7.2010. 10. On a detailed analysis of the fact as enunciated herein. It is clear therefrom that the petitioner-company being an unsuccessful bidder for providing cable TV network at Paradeep Port Trust, sought to challenge the decision of the Paradeep Port Trust in awarding the contract in favour of M/s. Manthan Broad Band Services Pvt. Ltd. by filing the writ petition, i.e. W.P.(C). No.10386 of 2009. When that petition came to be dismissed, the petitioner-company filed a contempt petition in which, when notice was directed to be issued, the petitioner-company issued advertisements both in various TV channels as well as the local news papers threatening possible signal suppliers not to supply their signals to M/s. Manthan Broad Band Services Pvt. Ltd. Every endevour was made by the petitioner-company to try and frustrate M/s. Manthan Broad Band Services Pvt. Ltd. from complying with the requirements of the Paradeep Port Trust and to frustrate it from performing its obligation in terms of the tender. It is the TDSAT, which came to the rescue of M/s. Manthan Broad Band Services Pvt. Ltd. thus enabling them to comply with the requirements of the Paradeep Port Trust. 10.1. It is also important to note herein that the Rules of the Orissa High Court, 1948 and in particular, Chapter-III, Rule-3 which provides for the nature of matters which to be listed during the vacation: “Chapter-III, Rule-3:- A proceeding of the kind referred to in Rule-1 (viii) and Rule 1 (xi) of this Chapter may, in the discretion of the Bench hearing the same, be heard either in Court or in Chambers as it may direct. An ex parte motion or application entertainable by a Single Judge may be made in Court or in Chambers as the Judge may direct. An urgent application may be made to the Vacation Judge in Court or otherwise as he may direct. Every other appeal, motion or application except when specifically provided otherwise shall be presented or made in open Court.” 10 10.2. The said rule specifically permits only such “urgent matters” which cannot wait reopening of the Court and the same may be taken up during vacation. 10.3. In the present case, a memo was filed by the learned counsel for the petitioner, as quoted hereinabove, clearly indicating the fact that a contempt petition was made to be portrayed as an “urgent matter” for which reason, the matter was directed to be listed before the Vacation Judge. We may also note that a contempt application by their very nature, both the criminal contempt and civil contempt are the matters between the Court and the contemnor, are not of an urgent of a nature which may be listed during vacation. 10.4. Even apart from the above, in the light of the consequences noted hereinabove, we are of the considered view that in the facts and circumstances of the present case the filing of a contempt application itself amounted to “an abuse of the process of the court” by the petitioner, filed with the intent to try and frustrate the successful party from effectively complying with the directions of this Court, within the period as directed. 11. Although learned counsel for the petitioner made a submission to permit withdrawal of the contempt application, the same was turned down by us, since we are of the considered view that the petitioner after having initiated the present proceedings and having obtained an order directing notice to the parties, the matter could no longer be permitted to withdrawn, since the process of the Court had already been initiated at the behest of the petitioner effecting the interest of other parties and that too with an oblique motive. Insofar as the judgment cited by the petitioner in the case of Om Prakash Jaiswal (supra), we are in respectful agreement with the views expressed therein but the facts of the present case being clearly distinguishable, the said judgment is of no assistance to the stand of the petitioner. 11 12. Accordingly, we are of the considered view that the petitioner has filed the present contempt case against the opposite parties without there being any cause of action for contempt. Hence, while dismissing the present contempt application, we are also of the further view that the initiation of the present contempt proceeding itself amounted to an abuse the process of the Court and, therefore, contumacious in nature. But we propose not to initiate any proceeding of contempt against the petitioner with the hope and trust that the petitioner shall not repeat such action in future. 13. The contempt petition is dismissed with costs of Rs.25,000/- (Rupees twenty five thousand) only payable to the Advocates Welfare Fund of the Orissa State Bar Council. ……………………. I.Mahanty, J. V. Gopala Gowda, C.J. I agree. .......................... Chief Justice ORISSA HIGH COURT, CUTTACK October, 5th 2010/RKS . 12 13