IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Cont. Petn. Nos.568 of 2007 & 214 of 2008 and Sub Appln.Nos.201, 214 and 215 of 2007 B.Balakrishnan @ Parthe Bhaskar ... Petitioner in both contempt Petitions, Sub- Appln.No.201 and Respondents in Sub-Appln.Nos. 214 & 215/2007 Vs. 1) Vasudevan, Managing Director Ozone Projects Private Ltd. No.51/7/2, Ratna Avenue Civil Station, Off Richmond Road Bangalore - 560 025 Also at No.63, G.N.Chetty Road T.Nagar Chennai - 600 017 ... Respondent in Contempt Petition Nos.568 of 2007 and 214 of 2008 & Petitioner in Sub-Appln.Nos. 214 & 215/2007 2) Mr.Keyur Shah (CFO, HDFC Real Estate Fund) Director M/s.Ozone Projects Private Ltd. Ramon House, 6th Floor HT Farekh Marg 169, Backbay Reclamation Mumbai - 400 020 3) Mr.Joseph Mathew (GM, HDFC-South) Director M/s.Ozone Projects Private ltd. 4) Mr.Parag Parekh (Chairman, Urban Infrastructure Fund, Reliance Industries) Director, M/s.Ozone Projects Private Ltd. 5) Mr.V.K.Tripathi Director M/s.Ozone Projects Private Ltd. 6) Mr.C.P.Bothra Director M/s.Ozone Projects Private Ltd. Chairman Medreich Sterilab Ltd., Medreich House 12/8, Saraswathi Ammal Street Maruthi Seva Nagar Bangaluru - 560 033 Respondents 1 to 6 are having office at Ozone Projects Private Ltd. No.51/7/2, Ratna Avenue Civil Station, Off Richmond Road Bangalore - 560 025 Also at No.63, G.N.Chetty Road T.Nagar Chennai - 600 017 ... Respondents in Contempt Petition No.214 of 2008 PRAYER IN CONT.PETN.No.568 of 2007 : Petition filed under Section 11 of the Contempt of Courts Act, 1971 to punish the respondent herein for having committed the act of contempt by violating the interim injunction order dated.02.05.2007 made in M.P.Nos.1 & 2 of 2007 in W.P.No.16346 of 2007. PRAYER IN CONT. PETN. No.214 of 2008 : Petition filed under Section 11 of the Contempt of Courts Act, 1971 to direct issue of notice to the respondents and punish them for having committed the act of contempt by violating the undertaking given to this Hon'ble Court by the respondents' company viz. M/s.Ozone Projects Private Limited, and recorded in the order dated 28.06.2007 in W.P.No.16346 of 2007. For Petitioner : Mr.K.Venkatesh (568/2007) Mr.R.Neelakandan (214/2008) For Respondents : Mr.R.Swaminathan O R D E R Contempt Petition No.568 of 2007 has been filed against one Mr.Vasudevan, the Managing Director of M/s.Ozone Projects Private Limited, to punish him for having allegedly committed an act of contempt by violating the order of interim injunction dated 02.05.2007 granted by this court in M.P.No.1 and 2 of 2007 in W.P.No.16346/2007. 2. Contempt Petition No.214 of 2008 has been filed against the above said Vasudevan, Managing Director of M/s.Ozone Projects Private Limited and five other directors of the above said company to punish them for the alleged act of contempt by violating the undertaking given to this court by M/s.Ozone Projects Private Limited and recorded by this court in its order dated 28.06.2007 in Writ Petition No.16346 of 2007. In both the contempt petitions and the connected writ petition M/s.Ozone Projects Private Limited has been inappropriately described as M/s.Ozone Constructions Pvt. Ltd., according to the respondents. 3. Both the contempt petitions have been filed by Mr.B.Balakrishnan (a) Parthe Bhaskar, the petitioner in Writ Petition No.16346 of 2007. Contending that Mr.N.Adhikesavan and others were the joint owners of a vacant land with an extent of 4.76 acres (3.00 acres comprised in Survey No.230/7A (part) and 1.76 acres comprised in Survey No.229/1A (part) situated in No.79, Thirumangalam village, within the sub-registration district of Anna Nagar and registration district of Central Chennai and that they had appointed the petitioner to be their agent by executing necessary deeds of Power of Attorney, the petitioner herein filed the above said writ petition in W.P.No.16436 of 2007 against 1) C.M.D.A. represented by its Member Secretary, 2) Krishna Tiles and Potteries (Madras) Private Ltd and 3) M/s.Ozone Constructions Pvt. Ltd. seeking issue of a writ of mandamus forbearing the C.M.D.A. from granting approval of building construction plan to M/s.Ozone Constructions Pvt. Ltd., in respect of the above said land. Along with the writ petition, he had also filed miscellaneous petitions M.P.Nos.1 and 2 of 2007 in W.P.No.16346 of 2007 praying for interim injunction restraining M/s.Ozone Constructions Pvt. Ltd., their men, servant, agent or anyone claiming through them from in any manner proceeding with the construction, specifically on the lands belonging to Adhikesavan Vagayara represented by the petitioner, comprised in Survey Nos.229/1A (part) and 230/7A (part) having an extent of 1.76 acres and 3.00 acres respectively. This court, by an order dated 02.05.2007 granted an interim order and directed notice to be served on the respondents in the petition. 4. Complaining that the respondents in contempt petition No.568 of 2007, in violation of the said order of injunction, proceeded with the construction work in the above said properties, the petitioner has prayed that Mr.Vasudevan, Managing Director of the said company should be punished for violating the order of interim injunction passed by this court on 02.05.2007 in M.P.Nos.1 & 2 of 2007 in W.P.No.16346 of 2007. 5. Admittedly, the above said writ petition W.P.No.16346 of 2007 was disposed of on 28.06.2007 after recording an undertaking given by M/s.Ozone Projects Private Limited to the effect that they would not commence the construction activities without obtaining planning permission. This court also directed the C.M.D.A. to consider and dispose of the representation given by the petitioner within four weeks from the date of receipt of a copy of the said order passed in the writ petition. With the further contention that before ever the plan presented by M/s.Ozone Projects Private Limited was approved, the said company violated the undertaking given before this court by continuing their construction work on the disputed property by dumping construction materials in the said property and engaging huge number of construction workers, the petitioner has filed another Contempt Petition No.214 of 2008 praying that all the six directors, including the Managing Director of M/s.Ozone Projects Private Limited, be punished for their alleged act of contempt. 6. Mr.Vasudevan, Managing Director of M/s.Ozone Projects Private Limited, the sole respondent in Contempt Petition No.568 of 2007 filed a counter affidavit in the said contempt petition denying the allegations that he had committed an act of contempt in violating the order of interim injunction granted by this court by its order dated 02.05.2007. Similarly a separate counter affidavit has been filed by the said Vasudevan, Managing Director of M/s.Ozone Projects Private Limited for himself and on behalf of the other respondents in Contempt Petition No.214 of 2008. Almost similar averments are found in both the counter affidavits. 7. It is the contention of the respondents in both the contempt petitions that they have not violated either the interim order of this court dated 02.05.2007 or the undertaking given on behalf of M/s.Ozone Projects Private Limited on 28.06.2007 based on which final order was passed in the writ petition in W.P.No.16346/2007 on the above said date. 8. According to the respondents, the order of interim injunction dated 02.05.2007 made in M.P.Nos.1 and 2 of 2007 in W.P.No.16346/2007 had been obtained by the petitioner herein suppressing several earlier proceedings instituted by and against the petitioner herein and his so called principals that ended against them. The particulars of the earlier proceedings referred to by the respondents are as under:- 1) I.A.No.13847 of 1998 in O.S.No.5836 of 1998 filed by the petitioner herein as power agent of Alavattan before the City Civil Court against M/s.Krishna Tiles and Potteries (Madras) Private Ltd., the vendor of M/s.Ozone Projects Private Limited, in which case after having failed to obtain an interim order, the petitioner withdrew the suit with a liberty to file a fresh suit. 2) O.S.No.3778 of 2002 filed on the file of the City Civil Court, Chennai by Jagannatha Pandian and S.Rajesh claiming to have taken delivery of possession of the properties which were the subject matter of the above said writ petition from the petitioner herein as power agent of N.Adhikesavan and others in which initially an exparte interim order of injunction was obtained. The said order was challenged in a Civil Revision Petition under Article 227 of the Constitution of India before this court which was disposed of with a direction to the trial court to dispose of the injunction petition in I.A.No.10700 of 2002 in O.S.No.3778 of 2002 on merits. Subsequently, the said injunction petition was also dismissed on 20.02.2003. Pursuant to the dismissal of the said injunction petition, the plaintiffs in the said suit allowed the suit to be dismissed for non-prosecution. 3) A criminal case registered in F.I.R.No.653/2002 on the file of the Central Crime Branch, Chennai against the above said persons for falsification of records based on the complaint of the one of the directors of M/s.Ozone Projects Private Limited, which case is still pending. 3) W.P.No.12613 of 2001 filed before this court by Adhikesavan and others, the so-called principals of the petitioner herein, against the order of the Commissioner of Land Administration in R.Dis.(K1) RP 5/2000 dated 14.05.2001 in which the relief of interim injunction sought for under W.P.M.P.No.23666 of 2001 was not granted by this court. 4) Writ Appeal No.2263 of 2002 along with W.A.M.P.Nos.3859 of 2002 and 4835 of 2002 filed by the said persons, which writ appeal was later on dismissed as not pressed. 5) An order of injunction made in Application No.694 of 2002 in C.S.No.696 of 2002 filed by M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd. the vendor of M/s.Ozone Projects Private Limited, against the petitioner herein, his so-called principals and several other persons for an injunction restraining the petitioner and his so called principals, their men, servants, agents or any one acting under them from in any manner interfering with or disturbing their peaceful possession and enjoyment of the properties listed in the said application comprised in Survey No.230/7A. 6) A similar order of injunction made in Application No.711/2002 in C.S.No.713 of 2002 restraining the petitioner herein, his so-called principals and several other persons from in any manner interfering with or disturbing their peaceful possession and enjoyment of the suit properties in Survey No.229/1A. 9. It is the further contention of the respondents that even though an order of interim injunction dated 02.05.2007 made in M.P.Nos.1 & 2 of 2007 in W.P.No.16346 of 2007 had been obtained by the petitioner herein suppressing the earlier proceedings, the respondents did not violate the said order of interim injunction, as no construction of building was made subsequent to the passing of the said order and the construction of a tin dome with imported sheets, encompassing temporary marketing office and make shift model flats that can be easily dismantled and removed, was completed even before the date of passing of the said order of interim injunction. The respondents have contended further that the said dome containing the marketing office and model flats are temporary structures which could be dismantled and removed and that under such circumstances, they have not committed any act of contempt as contended by the petitioner in Contempt Petition No.568 of 2007. 10. So far as the contempt petition No.214/2008 is concerned, the respondents admit that they gave an undertaking to this court in the said writ petition (W.P.No.16346 of 2007) based on which the interim order granted earlier in M.P.Nos.1 & 2 of 2007 was vacated and the writ petition itself was disposed of on 28.06.2007 with a direction to the C.M.D.A. to consider the objections and representations made by the petitioner herein before taking a decision as to whether planning permission would be granted to M/s.Ozone Projects Private Limited. However, the respondents would contend that the said undertaking not to commence any construction activity without obtaining planning permission has not been violated as contended by the petitioner herein in the above said contempt petition No.214 of 2008 and that only soil consolidation and compaction were being effected taking into consideration future developments since the entire area was a deep pit till recently. The respondents have also denied the petition allegations to the effect that construction materials have been dumped and construction work has commenced and is going on in violation of the undertaking given in W.P.No.16346 of 2007. 11. In the light of the above said rival contentions made by the parties, the following questions have arisen for consideration in the contempt petitions:- 1) Whether the respondent in contempt petition No.568/2007 is guilty of willful disobedience/violation of the order of Interim Injunction dated 02.05.2007 made in M.P.Nos.1 & 2 of 2007 in W.P.No.16346 of 2007? 2) Whether the respondent in contempt petition no.214 of 2008 are guilty of willful violation of the undertaking given to the court on 28.06.2007 in W.P.No.16346 of 2007? 12. This court heard the submissions made by Mr.R.Shanmugasundram, learned senior counsel for Mr.K.Venkatesh, representing the petitioner in Contempt Petition No.568 of 2007, Mr.R.Thiyagarajan, learned senior counsel for Mr.R.Neelakandan, representing the petitioner in Contempt Petition No.214 of 2008, Mr.R.Krishnamurthy, learned senior counsel for Mr.R.Swaminthan, representing the respondents in both the contempt petitions and petitioner in Sub.Application Nos.214 and 215 of 2007 and respondent in Sub-Application No.201 of 2007. The materials available on record were also perused. 13. Unlike other cases, stating briefly the background in which these contempt petitions happened to be filed will be of immense help in understanding the problem. The relevant facts are as follows:- a) A total extent of 34.04 acres comprised in Survey No.230/7A and 229/1A in Koyambedu Thirumangalam Village, forming a single block was claimed to be the property belonging to M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd. from whom M/s.Ozone Projects Private Limited purchased the same. Out of the above said 34.04 acres, Adhikesavan and others, the alleged principals of the petitioner herein claim title to 1.76 acres in Survey No.229/1A (part) and 3.00 acres in Survey No.230/7A (Part). Under the Inam Estate Abolition Act, 1948, patta was granted in favour of the vendors of the above said M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd. for a larger area having a total extent of 329.58 acres. Out of the said extent, nearly 158 acres was acquired by the Government and the balance was purchased by the above said M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd. Retaining an extent of 34.04 acres in Survey Nos.227/3, 229/2, 230/1 to 6, 230/7A and 230/8, M/s.Shri Krishna Tiles and Potteries (Madras) Pvt. Ltd. sold the balance to Government department in 1970  1972. The said Krishna Tiles and Potteries (Madras) Private Ltd. sold the above said 34.04 acres to M/s.Ozone Projects Private Limited. Thereafter the petitioner herein, claiming that 1.76 acres comprised in Survey No.229/1A (part) and 3.00 acres comprised in Survey No.230/7A (part) which formed part of the above said 34.04 acres belonged to Adhikesavan vagayara, the so called principals of the petitioner herein, wanted mutation in the revenue records to be made showing them to be the owners. He also wanted to prevent any kind of conveyance deed being registered in respect of the said property of 1.76 acres comprised in Survey No.229/1A (part) and 3.00 acres comprised in Survey No.230/7A (part). Adhikesavan vagayara in their personal capacity and the petitioner herein claiming to be the agent of the so-called principals, filed several suits and writ petitions along with interlocutory applications/writ miscellaneous petitions seeking interim order of injunction restraining the vendor of M/s.Ozone Projects Private Limited i.e. M/s.Shri Krishna Tiles and Potteries Private Ltd. from in any manner interfering with or causing disturbance to the peaceful possession and enjoyment of the said property by the so-called principals of the petitioner herein. In all such cases, interim order could be obtained and hence the main cases were either left to be dismissed for non-prosecution or withdrawn with a liberty to file a fresh suit. Meanwhile, the vendor of M/s.Ozone Projects Private Limited also filed two suits on the original side of this court against the so-called principals of the petitioner, petitioner herein and several other persons (totally 36 in number) for the entire extent of land purchased by M/s.Ozone Projects Private Limited from M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd. and orders of ad-interim injunction were obtained not to disturb its peaceful possession and enjoyment of the property. b) In such background alone, the petitioner chose to file a writ petition in W.P.No.16346 of 2007 seeking the issue of a writ of mandamus forbearing C.M.D.A., the first respondent therein, from granting approval of building construction plan to the third respondent viz M/s.Ozone Constructions Private Ltd., in respect of an extent of 1.76 acres comprised in Survey No.229/1A (part) and 3.00 acres in Survey No.230/7A (part) in Koyambedu-Thirumangalam village and to cancel the approval of plan if any already granted. Seeking ad-interim injunction M.P.Nos.1 and 2 of 2007 were also filed in the said writ petition. Though, initially ad-interim injunction was granted in the said miscellaneous petitions, subsequently on appearance of the respondents, the writ petition was disposed of after recording the undertaking given on behalf of M/s.Ozone Projects Private Limited that no construction activity would be commenced without obtaining planning permission from the CMDA. In the said writ petition the ex-parte order of injunction passed in M.P.No.1&2 of 2007 on 02.05.2007 was vacated and the writ petition itself was disposed of. Only in such circumstances the petitioner has come forward with this contempt petition No.568 of 2007 contending that respondents have put up construction disregarding the order of interim injunction after the order of interim injunction dated 02.05.2007 was passed in M.P.No.1 & 2 of 2007 in W.P.No.16346 of 2007 and with contempt petition No.214/2008 contending that the undertaking given in the writ petition was violated. Let us now consider the above said contentions one by one. 14. The learned senior counsel for the respondent would contend that though the respondent has applied for planning permission for the entire extent of 34.04 acres, the petitioner filed the writ petition in respect of 1.76 acres comprised in Survey No.229/1A (part) and 3.00 acres in Survey No.230/7A (part) alone, without specifying in which part of the above said 34.04 acres the property concerned in the writ petition lies; that in such an event the injunction obtained in respect of the above said land totally measuring 4.76 acres would not prevent any development being made in the rest of the land and that in the absence of specific pleading and proof that constructions were made within the said 4.76 acres, no contempt would be made out. Ofcourse it is true that the petitioner has not clearly demarcated 1.76 acres comprised in Survey No.229/1A (part) and 3.00 acres comprised in Survey No.230/7A (part) with measurements and boundaries in the writ petition. It is obvious from the decreetal order passed in I.A.No.13847/1998 in O.S.No.5836/1998 filed by the petitioner herein, measurements alone were provided without giving the boundaries. Even in the writ petition W.P.No.16346 of 2007 boundaries are not given. Only in Sub-Application No.201 of 2007, the petitioner has chosen to give the boundaries of the said extents. Therefore, the contention of the learned senior counsel for the respondents that, in the absence of clear demarcation of the property concerned in the writ petition and clear averment and proof that the construction was made in that part of the land, the respondents could not be held liable for contempt, has got to be accepted as there is substance in it. 15. However, not solely relying on the above said contention, the respondents have raised a further contention that even assuming that the temporary structure, namely the dome put up by the respondents, occupies the whole or part of the land which is the subject matter of the writ petition, the same would not amount to contempt as the entire construction was not only commenced but also completed prior to the date of the order of interim injunction passed on 02.05.2007. 16. According to the petition averments, the order of interim injunction was passed in M.P.No.1 and 2 of 2007 in W.P.No.16346 of 2007 on 02.05.2007 and the construction of the tin dome with imported sheets and structures found inside the dome was made subsequent to the said date and hence the act of the respondent in Contempt Petition No.568 of 2007 would be punishable as an act of contempt of court as the same amounted to willful disobedience of the order. The answer of the respondent in Contempt Petition No.568 of 2007 to the said contention is that even though such an order was obtained suppressing the material facts regarding the earlier proceedings, no construction work was made after the passing of the order of interim injunction on 02.05.2007; that a dome was put up as a temporary structure to locate the marketing office of the project and make shift model flats; that the construction of the dome and the interior constructions within the dome was completed well before the date on which the interim order was passed and that therefore, the contempt Petition No.568 of 2007 should be dismissed, as the same has been filed not only on a misconception of fact but also with a view to harass the respondents to coerce them to come to terms with the petitioner. 17. The learned senior counsel for the petitioner pointing out certain portions of the counter affidavit filed by the respondents argued that the respondents had admitted that they had put up constructions after the passing of the above said interim order. The learned senior counsel for the petitioner pointed out paragraph 20 of the of counter affidavit filed in Contempt Petition No.214 of 2008 and paragraph 14 of the counter affidavit filed in Contempt Petition No.568 of 2007 and argued that there was an admission on the part of the respondents that the dome was constructed after the passing of the interim order by this court. On the other hand, the learned senior counsel for the respondents would contend that such an interpretation to the averments found in paragraph 20 of the counter affidavit filed in the Contempt Petition No.214 of 2008 and paragraph 14 of the counter affidavit filed in the Contempt Petition No.568 of 2007 could not be made; that in order to constitute an admission, the same should be clear and unequivocal; that it was made very much clear in paragraph 20 of the counter affidavit filed in Contempt Petition No.214 of 2008 that no permanent constructions had been put up in the subject matter of the writ petition except a temporary dome as explained in the counter affidavit filed in the earlier contempt petition, namely Contempt Petition No.568 of 2007 and that construction of such temporary dome was over before the date on which the order of interim injunction was passed. The following are the averments found in paragraph 20 of the counter affidavit filed in Contempt Petition No.214 of 2008. "I submit that we have not put up any permanent construction any where in the subject matter of the writ petition except the temporary dome, as explained in the counter filed in the earlier contempt petition." To find out whether the said averment found in paragraph 20 of the counter affidavit filed in contempt petition no.214 of 2008 amounted to an admission that a temporary dome was put up after the passing of the interim order, we have to consider the same in the light of averments found in paragraph 14 of the counter affidavit filed in Contempt Petition No.568 of 2007. The following are the averments found in paragraph 14 of the counter affidavit filed in Contempt Petition No.568 of 2007:- "I submit that there is no construction made as of now in S.No.229/1A and much less during the interim period when the stay was in operation. I further submit that a temporary tin dome with imported sheets was erected in a portion of the properties purchased by the Respondent company. The work order for the construction of the same was given to M/s.Hassan Brothers on 10th of October, 2006 and the construction of the same was completed in all respects as early as 28th March,