Jayabrata Bhattacharjee vs Ashok Kumar & Ors.
2013 Latest Caselaw 1669 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CONT.CAS(C)386/2009

%                                   Date of Pronouncement 12th April, 2013

        JAYABRATA BHATTACHARJEE                  ..... Petitioner
                    Through: Petitioner in person.

                 versus

        ASHOK KUMAR & ORS.                                 ..... Respondents

                    Through:               Ms.Sangeeta Chandra, Adv.

        CORAM:
        HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J

1. A contempt petition under Sections 11 and 12 of the Contempt of Courts Act, 1971 was filed by the petitioner, for initiating contempt of Court proceedings against the respondents for not complying with the order passed by this Court in CWP 1808/1994 dated 23.7.1999, which was upheld by the Supreme Court of India on 13.12.2007. The said contempt petition was disposed of by a judgment dated 13.7.2012. Detailed facts have been noticed in the judgment. The concluding portion of the judgment reads as under:

"39. In my view DDA has in fact wilfully disobeyed the order of the High Court, as confirmed by the Supreme Court of India. Assuming if the DDA was under the impression that there are two interpretations with respect to the order which has been passed, it was open for the DDA to seek clarification at the first opportunity available. Further the stand sought to be raised by the DDA in the contempt proceedings, seems to be an afterthought, as DDA has failed to take this defence in response to various letters written by the petitioner to the DDA at any point of time. The impression gathered by this court is that DDA tried hard to tire out the

petitioner, as he had been persistently writing letters to the DDA and had been raising uncomfortable questions to them; and the DDA has decided to teach the petitioner a lesson and made him to run from pillar to post. In case the DDA was of the view that the inter category of charges were not covered by the decision of the Division Bench, at the first opportunity available, which is soon after passing of the order of the Division Bench dated 23.7.1999 and the order of the Supreme Court dated 13.12.2007, they should have informed the petitioner that they have levied the inter category charges on the petitioner and they are not bound to refund the same, as they are not covered by the orders of the High Court and the Supreme Court. The power of contempt is to be used sparingly. This court is conscious of the fact that power of contempt must be exercised reluctantly and with great care and caution and only with the object to ensure that dignity and authority of the Court of law is not impaired.

40. In my view respondent has committed contempt by imposing inter category charges on the petitioner and despite repeated requests not refunded the same. Respondents must purge the contempt by refunding inter category charges levied on the petitioner with 8% interest within six weeks of receipt of this order, failing which, the concerned respondents are directed to remain present in court for addressing arguments on punishment.

2. It may be noticed that when the matter was listed on 7.9.2012, counsel for the respondent had handed over a cheque in the sum of Rs.94,976/- to the petitioner. Since the calculations were not provided, the matter was again adjourned to 19.10.2012, when the following order was passed:

"Petitioner, who appears in person, submits that calculation has been received by him from the DDA. Learned counsel for the respondent DDA submits that contempt has been purged by making the payments in terms of the directions.

List this matter on 29.11.2012."

3. Petitioner, who appears in person, has strenuously urged before this Court that the respondents should be punished for wilful disobedience of the orders passed by this Court. It has further been submitted by

Mr.Bhattacharjee that the first order was passed in the Writ Petition No.1808/1994 as far back as in the year 1999. This order was upheld by the Supreme Court on 13.12.2007. Thereafter he made repeated requests, issued various reminders and personally met the concerned officials of the DDA, requesting them to comply with the directions of the Court, all of which fell on deaf ears.

4. Mr.Bhattacharjee contends that the contempt petition was filed in the year 2009 and in spite of filing of the contempt petition the respondents did not comply with the order with the sole aim and objective to harass the petitioner, who was fighting to seek justice and not fighting for recovery of money. In these circumstances, petitioner prays that the respondents be punished. Petitioner also prays that the respondents be punished for willful disobedience by rejecting the apology as the same was not tendered at the first opportunity available nor the apology is bona fide and in actual repentance. In support of his arguments, petitioner has relied upon Kalayneshwari Vs. Union of India & Ors. 2011 (6) SCALE 220 and more particularly paragraph 3, which reads as under:

"There is no doubt that at the very initial stage, the respondents have tendered apology and prayed for dropping of the contempt proceedings. We are not quite certain as to the bona fide and intent of the respondents in tendering such an apology. For a Court to accept the apology in a contempt action, it is required that such apology should be bona fide and in actual repentance of the conduct which invited initiation of contempt proceedings. Furthermore, the conduct should be such which can be ignored without compromising the dignity of the Court. `Contempt' is disorderly conduct of a contemner causing serious damage to the institution of justice administration. Such conduct, with reference to its adverse effects and consequences, can be discernibly classified into two categories: one which has a transient effect on the system and/or the person concerned and is likely to wither away by the passage of time while the other causes permanent damage to the institution and

administration of justice. The latter conduct would normally be unforgivable."

5. Reliance is also placed by the petitioner on Pravin C. Shah Vs. K.A.

Mohd. Ali & Anr. (2001) 8 SCC 650, in support of his submission that the apology is to be offered at the earliest. It is also submitted by Mr.Bhattacharjee that an apology is not a weapon of defence to purge the guilty of their offence and secondly apology must be offered at the first opportunity available and not at a time when the contemnor finds that the Court is going to impose punishment.

6. Mr.Bhattacharjee has also relied upon Indra Sawhney Vs. Union of India & Ors. reported at (1995) 5 SCC 429, wherein the Apex Court had held the respondent guilty of contempt on account of delay in compliance of the order so passed. Paragraphs 4 and 5 of the judgment read as under:

"4. An affidavit is handed over just now to explain the circumstances why the implementation of the judgment was delayed. Even according to this affidavit the Government of India took a decision way back on 8-9-1993 fixing the criteria for exclusion of socially advanced persons etc. Even thereafter more than 1 ½ years have elapsed. It appears that the file moved from desk to desk and the implementation of this Court‟s order was delayed. We are far from happy about the manner in which the process of implementation of this Court‟s order has been dealt with by the State Government. We are also unhappy that despite the issuance of the contempt notice the State Government did not realize the urgency of implementing the order. Various State Governments have already done so and we fail to see why the State of Kerala has not been able to do so. In the circumstances we are constrained to observe that the impression caused is that the appointment of the Committee is yet another step in the direction of further delay in the implementation of the order. In the absence of the order appointing the Committee the terms of appointment and the duration thereof is also not known.

5. We are, therefore, of the opinion that this is a case for taking action in contempt. We hold the respondent guilty of contempt. However, in order to give the respondent an opportunity to purge the contempt before we pass the sentence, we adjourn the matter by two months to enable the State Government to report compliance before 11-9-1995, failing which this Court will proceed to pass appropriate orders in respect of the contempt. The Chief Secretary will remain present at the next date of hearing i.e. on 11-9-1995 to inform this Court whether or not the order has been implied with. If not, he runs the risk of being sentenced. Let the IAs.Nos.35 and 36 come up on 11-9-1995."

7. Ms. Sangita Chandra, counsel for the DDA, who had argued the matter before this Court has contended that paragraph 40 of the judgment had made it abundantly clear that respondents must purge the contempt within six weeks and in the eventuality the order was not complied with, it is only then that the respondents were directed to remain present for addressing arguments on punishment. It is thus contended that since the respondents have purged the contempt by complying with the order, the apology should be accepted and no punishment should be awarded to the respondents. It is further submitted that initially the respondents were of the view that no further amounts were payable by the respondents and since another view was possible in the matter, in the facts of the present case the matter should be put at rest.

8. I have heard the petitioner, who appears in person and counsel for the respondent and considered their rival submissions. In the case of Kapildeo Prasad Sah & Ors. Vs. State of Bihar & Ors. (1999) 7 SCC 569, the Apex Court has held that even negligence or carelessness in implementing the order of the Court would amount to contempt and especially when it has been brought to the notice of the concerned person the order so passed. Relevant paragraph of the judgment reads as under:

"9. For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the Court. Power to punish for contempt is to be resorted to when there is clear violation of the Court's order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court's order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the Court's orders and its implication. Disobedience of the Court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice."

9. The facts of this case unfold a very sorry state of affairs and the manner in which the DDA has treated an ordinary citizen all of which have been dealt in detail in the judgment so passed by this Court. It is only when the Court had finally held the respondent guilty the payment was made to the petitioner.

10. The Black‟s Law Dictionary (8th Edn., 1999) defines „Contempt‟ as "Conduct that defies the authority or dignity of a Court or legislature." It also adds that "Because such conduct interferes with the administration of justice, it is punishable."

11. Lord Diplock in Attorney General v. Times Newspapers Ltd. (1973) 3 All England Reporter 54 (HL) has said that there is also "an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any Court of law could be disregarded with impunity."

12. In the Case of Kalayneshwari (Supra), the Court took notice of the fact that the rule of law has to be maintained at all costs. Paragraph 7 of the judgments read as under:

"7. The rule of law has to be maintained whatever be the consequences. The `welfare of people' is the supreme law and this enunciates adequately the ideal of `law'. This could only be achieved when justice is administered lawfully, judiciously, without any fear and without being hampered or throttled by unscrupulous elements. The administration of justice is dependent upon obedience or execution of the orders of the Court. The contemptuous act which interfered with administration of justice on one hand and impinge upon the dignity of institution of justice on the other, bringing down its respect in the eye of the commoner, are acts which may not fall in the category of cases where the Court can accept the apology of the contemner even if it is tendered at the threshold of the proceedings."

13. In the case of Pravin C. Shah Vs. K.A. Mohd. Ali & Anr. (2001) 8 SCC 650, one of the questions which came up for consideration was as to how a contemnor can purge himself for the contempt, although the Apex Court in the said case was dealing with a criminal contempt. Relevant portion of the judgment reads as under:

23. Now we have to consider the crucial question - How can a contemnor purge himself of the contempt? According to the Disciplinary Committee of the Bar Council of India, purging oneself of contempt can be done by apologising to the court. The said opinion of the Bar Council of India can be seen from the following portion of the impugned order:

"Purging oneself of contempt can be only by regretting or apologising in the case of a completed action of criminal contempt. If it is a case of civil contempt, by subsequent compliance with the orders or directions the contempt can be purged off. There is no procedural provision in law to get purged of contempt by an order of an appropriate court."

24. Purging is a process by which an undesirable element is expelled either from ones own self or from a society. It is a cleansing process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through the expression of sincere remorse coupled with doing the penance required. In the case of a guilt, purging means to get himself cleared of the guilt. The concept of purgatory was evolved from the word purge, which is a state of suffering after this life in which those souls, who depart this life with their deadly sins, are purified and render fit to enter into heaven where nothing defiled enters. (vide Words and Phrases, Permanent Edn., Vol.35A, page 307). In Black‟s Law Dictionary the word purge is given the following meaning: To cleanse; to clear or exonerate from some charge or imputation of guilt, or from a contempt. It is preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed.

25. We are told that a learned single Judge of the Allahabad High Court has expressed a view that purging process would be completed when the contemnor undergoes the penalty (vide Dr. Madan Gopal Gupta vs. The Agra University and ors., AIR 1974 Allahabad 39). This is what the learned single Judge said about it:

"In my opinion a party in contempt purged its contempt by obeying the orders of the court or by undergoing the penalty imposed by the court."

26. Obeying the orders of the court would be a mode by which one can make the purging process in a substantial manner when it is a civil contempt. Even for such a civil contempt the purging process would not be treated as completed merely by the contemnor undergoing the penalty imposed on him unless he has obeyed the order of the court or he has undone the wrong. If that is the position in regard to civil contempt the position regarding criminal contempt must be stronger. Section 2 of the Contempt of Courts Act categorises contempt of court into two categories. The first category is civil contempt which is the willful disobedience of the order of the court including breach of an undertaking given to the court. But criminal contempt includes doing any act whatsoever which tends to scandalise or lowers the authority of any court, or tends to interfere with the due course of a judicial proceeding or

interferes with, or obstructs the administration of justice in any other manner.

27. We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal contempt. The danger in giving accord to the said view of the learned single Judge in the afore-cited decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt."

14. It is settled law that in contempt proceedings an apology must be offered at the first opportunity available and not under the fear at the stage when the punishment is going to be imposed. It is also no longer res integra that apology is not a weapon of defence to purge the guilt for the offence, which has been committed.

15. It may be noticed that in this case an unconditional apology was not tendered by the DDA at the first opportunity available. In fact, it has been the stand of the DDA that as per their understanding of the order, no further amount was payable by the DDA to the petitioner with regard to inter-category charges. Being conscious of the fact that the power of contempt is to be used sparingly and exercised with great care and caution this Court had called upon the DDA to place various affidavits on records and only upon being satisfied the order dated 13.7.2012 was passed.

16. It has been repeatedly held by the Apex Court that the power of punishment for contempt is a special power [See Jhareswar Prasad Paul and Another Versus Tarak Nath Ganguly and Others, reported at 2002 Crl.L.J. 2935].

17. In the case of Patel Rajnikant Dhulabhai & Anr. Vs. Patel Chandrakant Dhulabhai & Ors. (2008) 14 SCC 561, the Supreme Court had observed that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the Court to uphold and maintain the dignity of courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.

18. It has also been repeatedly held that Court should be slow in exercising the power of punishing a person for guilty of contempt, unless the act is deliberate and intentional. Since the respondents herein have purged their contempt and also tendered an unqualified apology, in the peculiar facts of this case the same is accepted, but having regard to the fact that number of years spent by the petitioner in Court and taking into consideration the harassment which the petitioner had to undergo, the present petition is disposed of with costs quantified at Rs.20,000/- to be paid by the respondents to the petitioner within four weeks from the date of receipt of the order.

G.S. SISTANI, J.

APRIL 12, 2013 ssn