Court On Its Own Motion vs J.R. Gangwani And Ors.
2003 Latest Caselaw 207 Del

JUDGMENT

Manmohan Sarin, J.

1. The facts giving rise to the present proceedings for contempt may be briefly noted. One Durga Devi had filed a petition impleading Anupam Gardens Friends Association as respondent No. 1 Chairman of Delhi Pollution Control Board later on substituted by Delhi Pollution Control Committee and the DVB as respondent No. 2 and 3. Smt Durga Devi claimed that she was legal heir of the Bhumidar who owned a plot of land of 176 sq. yards in Khasra No. 119inSaidulajaib.The said plot had been handed over to respondent No. 1 Anupam Gardens Friends Association under an agreement to sell, power of attorney and receipt of possession etc. Grievance of the petitioner was that instead of using the said plot of land for horticulture purpose, it was being misused for non-agriculture purpose in contravention of Delhi Land Reforms Act. Diesel generators were being run which were causing pollution.

2. Show cause notice had been issued to the respondent. DPCC after an inspection filed an affidavit that three generators were being run in contravention of Section 45 of Electricity Supply Act and there were sufficient deficiencies resulting in polluting activity. DPCC claim that it had informed the Chief Engineer of DVB, SDM as well as the Chief Electrical inspector and Govt of NCT, However, no action had been taken. It was claimed that electricity tax was to be levied by MCD.

3. Vide orders passed on 22.11.2002 in the above writ petition, it was noted that a prima facie a case for proceeding for contempt against J.R. Gangwani son of Shri K.G. Gangwani, President, of Anupam Gardens Friends Association, for breach of the order dated 31.5.2002 and the undertaking given to the Court on behalf of the Society was made out. It was directed that notice be issued to Shri J.R. Gangwani to show cause as to why he should not be proceeded against for contempt of Court and punished. Subsequently, vide order dated 19.2.2002 notice was also directed to be issued to the office bearers of Green Country Society, namely Shri PNS Myer, V.K. Bhatnagar and Mr Prithvi Raj Singh, President, Secretary and treasurer of the Association, to show cause why they should not be proceeded against for contempt and be punished. Notices were also issued requiring the concerned Engineers of BSES Rajdhani Power Ltd., successor-in-interest of DVB, to be present in Court with recod.

Due to an administrative error, CCP was not registered and numbered. This being merely a procedural error. Let the CCP be registered and numbered now.

4. This Bench vide order dated 27.1.2002 directed that since the matter has been pending since 1999, DVB and DPCC to take immediate action to ensure that no polluting activity was carried out and unauthorised generators are not permitted

to be operated without due sanction as required under law. The said generators were accordingly sealed, which resulted in respondent No. 1 entering appearance and praying for desealing of the generators. A separate Writ Petition No. 1006/02 was also filed for seeking directions for grant of permission.

5. On 23.5.2002, Counsel and President of respondent No. 1 i.e. Anupam Gardens Friends Association sought to make a statement which was recorded. The statement made by the Counsel is as under:

"I have instructions on behalf of respondent No. 1 to state that respondent No. 1 shall not use the said generators without obtaining permission from the Appropriate Authorities and clearance from Delhi Pollution Control Committee."

6. The Court upon the said submission being made, directed that an affidavit be filed including undertaking of respondent No. 1 that it shall not instal and use the said generators in Anupam Gardens, Sainik Farms General Karriapa Marg, without approval as required and clearance from DPCC. Respondent No. 1 there upon filed affidavit-cum-undertaking of Mr. Gangwani President of respondent No. 1. Vide orders dated 31.5.2002, the affidavit-cum-undertaking dated 29.5.2002, as filed by the President of respondent No. 1, was accepted. The relevant extract from the affidavit is as under:

"That the deponent hereby gives an undertaking that respondent No. 1 Association shall not run/use the said generator sets from the premises bearing Khasra No. 119, Club Road. Anupam Gardens Friends Association without any approval /sanction either from High Court or DVB or DPCC or any other Appropriate Authority. Respondent No. 1 shall not instal, use the said generator sets in Anupam Gardens Sainik Farms, Genl. Karriappa Marg without permission/ approval as required and also a clearance from DPCC."

7. This was supported by an affidavit. The Court vide its order dated 31.5.2002, accepted the undertaking and it was also recorded that consequences of the breach of undertaking have been explained to contemnor Mr. Gangwani and Mr. Atul Batra. The following is the operative order :

"Let the generators be de-sealed and respondent No. 1 would be free to use them or sell them and deal with them subject to the undertaking as per affidavit filed. Nothing further survives in this writ petition. The writ petition stands disposed of."

8. Vide order dated 28th October, 2002, the Court directed NCT to carry out an inspection and report the position with regard to removal of generators and the use to which the premises were being put. Affidavit filed by the Executive Engineer of BSES Rajdhani Power Ltd. disclosed that the generator was lying installed, intact and was found to be running at the same premises. The Court thereafter vide order dated 18.11.2002 directed notice to be issued to J.R. Gangwani to be personally present. BSES Rajdhani Power Co. was also directed to produce the entire record relating to implementation of the order of desealing and removal of generators.

9. At this stage, Mr A.K. Singh entered appearance on behalf of M/s. Green Country Society, who claimed to be the purchaser of the generators and the land from respondent No. 1 M/s. Anupam Garden Friends Association. It was claimed by Mr. Singh that the Association had purchased the equipment and generators bona fide and were not aware of the Court order. On an oral request, M/s. Green Country Society was also imp leaded as a party to the proceedings. To assist the Court, Mr. Prashant Bhushan Advocate was appointed as amices curias.

10. Affidavit has been filed by BSES Rajdhani Power Company to the effect that neither M/s. Anupam Garden Friends Association nor M/s. Green Country Society had approached them for de-sealing and it was carried out by the Association and its office-bearers of their own.

11. The position as emerging from the affidavit filed by M/s. Anupam Garden Friends Association and M/s. Green Country Society as also BSES and based on the submission made by Mr. Prashant Bhushan, amices curiae is as under:

(i) The respondent No. 1. M/s. Anupam Garden Friends Association, after filing the affidavit and undertaking in the Court took out an advertisement in the Hindustan Times in the month of June, 2002 for sale of the three generators together with land and building in on "as is where is basis". Pursuant to this agreement dated 8.7.2002, was entered into for the sale of the plot of land with fittings and fixtures for a total sum of Rs. 16 lakhs with M/s. Green Country Society. Clause 3 of the said Agreement is as under:

"Property under sale is free from all kinds of encumbrances and disputes i.e. mortgage, Court case, injunction attachment, dispute, gift, Will, exchange etc. and if it is ever proved otherwise, the first party shall be liable and responsible for the same."

(ii) Pursuant to the said agreement and receipt of consideration, the possession was also handed over by the Anupam Garden Friends Association on 8.7.2002,

(iii) That as per the affidavit of Mr Gangwani, it was decided in the meeting of the Association on 25.5.2002 that the generating system together with land and building may be disposed of and the amount received and otherwise contributed may be returned to members. Pursuant to the same, they took out an advertisement and sold the equipment to the M/s. Green Country Society as noted above.

12. Unconditional apologies have been tendered by the President of M/s. Anupam Garden Friends Association as also by the Secretary of Green Country Society, Mr. Ravinder Sethi, learned Senior Counsel appearing for M/s. Anupam Garden Friends Association fervently prayed that the unconditional apology tendered by respondent No. 1 contemnor society and its office-bearers be accepted. Mr. A.K. Singh, learned Counsel for M/s. Green Country Society had initially sought to urge that the said society had bona fide purchased the plot of land with generators bona fide, without knowledge of the Court case or undertaking. He relied

on the agreement clause to submit that M/s. Anupam Garden Friends Association, had misrepresented that it was free from all kinds of encumbrances and disputes, Court case or injunction. This submission was a short lived one. Mr. Singh as also the Society stated that they tender their unconditional apology which should be accepted and pleaded for clemency.

13. M/s. Anupam Garden Friends Association and its office-bearers have clearly acted in disobedience of the order and the undertaking given to the Court. Confronted with the situation where the generators were lying sealed, they devised upon the plan to sell and transfer the same to another Association. To achieve this an undertaking was given to the Court, whereby de-sealing and sale permission was made subject to the condition that generators would not be run from the site in question or even Sainik Farms, Col. Karriappa Marg etc., without permission of the Appropriate Authority. The sale to M/s. Green Country Society was a mere device and subterfuge to get over the restraint order. It is incredible that the members and beneficiaries of M/s. Anupam Garden Friends Association and M/s. Green Country Society some of whom are residents of the same block and area, were not aware of the litigation and sealing order passed. After the generators were sealed, electric supply was disrupted. It is admitted that the members of the Association then began taking electricity from other sources. It is noticed from the list of beneficiaries of electric supply of the two Associations that there are common members and in certain cases if the husband is member of one society, the wife or other family member is shown as member of the other society.

14. Besides, M/s. Anupam Garden Friends Association has committed yet another gross contempt in removing the seals which were fixed by DVB and police officials of their own. The explanation tendered is that since BSES Rajdhani Power Co. Ltd. successors-in-interest of DVB, were busy in their unbundling and were not responding to the requests and sale had to be completed urgently. The Association desealed the premises and generators on its own. The BSES Rajdhani Power Company in its affidavit has denied that the Association ever approached them for de-sealing.

15. The action and conduct of the Anupam Garden Association in desealing the premises and generators of its own and then selling the same to another association to commence supply of electricity to the residents of the same block and others, was a clear breach of the undertaking given. The office bearers of the two associations cannot even claim or plead that there was any ambiguity or misunderstanding in the order passed. Mr. Prashant Bhushan, therefore relying on the judgments in Major General EM Bhattacharjee (Retd.) v. Russel Estate Corporation, Dr. (Mrs.) Roshan Sam Joyee v. S.R. Cotton Mills Ltd., Murray & Co. v. Ashok Kumar Newatta, Larksome Narayan Dutta v. Smt. Mira Rani Dey and Ors., 1984 Crl LJ 1033; Government of A.P. and Anr. v. G. Lakshman Reddy and Anr., AIR 1977 SC 2578; submits that this is a case where to uphold the majesty of law, Court under the Contempt of Courts Act or, if necessary by exercising its power under Article 215 of the Constitution of India should award maximum punishment.

16. On 14.2.2003, Mr. Ravinder Sethi, Senior Advocate instructed by Mr. Atul Batra and J.R. Gangwani President of the M/s. Anupam Garden Friends Association submitted that the apologies tendered by and on behalf of the Society by Mr Gangwani be also accepted as apology on behalf of office-bearers K.K. Dhar Rajinder Singh and S.K. Sarkar, who were also collectively responsible for the actions of the Society. Vide order dated l4.2.2003, the aforesaid persons/contemnors were also directed to be personally present. Mr Ravinder Sethi submitted that apart from unconditional apology tendered, the above contemnors as a token of their remorse would like to make a voluntary contribution of Rs 25,000 / - each in all a sum of Rs. 1,00,000/- to any institution as the Court may direct.

17. Mr. A.K. Singh, on instructions from office-bearers of M/s. Green Country Society submits that the office bearers of M/s. Green Country Society, namely, PNS Myer, B.K. Bhatnagar and Prithviraj Singh would also, as a token of their remorse, would like to contribute Rs. 50,000/ in all to such institution as the Court may direct.

18. I have given my anxious consideration to the entire matter. All officebearers of M/s. Anupam Garden Friends Association and M/s. Green Country Society have tendered unconditional apology. Counsel on their behalf have prayed for clemency and for a quietus to be applied.

Undoubtedly, the contemnors, office-bearers of the two societies are mature persons. It cannot be said that these persons were oblivious or did not know or could not anticipate their actions. The manner in which the entire exercise of obtaining permission from the Court for desealing and removal of generators was obtained shows that the actions were planned and deliberate. The question which now needs to be considered is whether the apologies tendered are sincere and there is genuine remorse. It is also necessary that members of our society inculcate and imbibe an attitude that law is meant to be obeyed and respected. An impression especially amongst the well-to-do sections of the society that law can be disobeyed or disregarded with impunity or without any adverse consequences flowing needs to be dispelled. Yet at the same time in case there is genuine remorse and a sincere apology punishment awarded should not be severe or punitive. Public interest also requires that punishment and sentence should have elements of being curative. The contemnors are guilty of willful disobedience of Court order dated 31.5.2002 and the undertaking given.

19. Let the contemnors the office bearers of M/s. Anupam Garden Friends Association J.R. Gangwani, K.K. Dhar, Rajendra Singh and S.K. Sarkar make a voluntary contribution of Rs. 25,000/- each totaling Rs. 1 lakh to the Prime Minister's Relief Fund as proposed by them. Similarly, let Mr. PNS Myer, V.K. Bhatnagar and Mr. Prithvi Raj Singh, make voluntary contribution of Rs. 50,000/-to the Delhi Legal Service Authority.

20. Considering the voluntary contributions and unconditional apology tendered and expression of remorse and the fact that generators stand removed, I am of the view that ends of justice would be met by sentencing all the seven contemnors namely, J.R. Gangwani, K.K. Dhar, Rajendra Singh, S.K. Sarkar, PNS

Myer, V.K. Bhatnagar and Prithvi Raj Singh till rising of the Court till 4.15 p.m. Ordered accordingly.

The Court appreciates the assistance rendered by Mr. Prashant Bhushan, amices curiae in the matter.