BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06/08/2009
CORAM
THE HONOURABLE Mr.JUSTICE R.S.RAMANATHAN
Contempt Petition(MD)No.60 of 2009
in
W.P(MD)No.2919 of 2008
S.Soundain ... Petitioner/Writ Petitioner
Vs.
1.K.Sivakumar, B.Sc.,
Commissioner,
Aruppukottai Municipality,
Aruppukottai-626 101,
Virudhunagar District.
2.Tmt.P.Jayalakshmi,
W/o.Punaivanan,
No.10/16,Ujjisamy Kovil Street,(West)
Aruppukottai-626 101,
Virudhunagar District.
[R2 impleaded as per order
dated 03.07.2009 made in
Sub.A.1/09 Cont.P.No.60/09]... Respondents/Respondents
Prayer
This contempt petition has been filed under Section 11 of the Contempt
of Courts Act, 1971, to punish the respondent herein for violating and willfully
disobeying the orders of this Honourable Court passed in W.P.No.2919 of 2008
dated 27.11.2008 and pass such further orders.
!For Petitioner ... Mr.A.Sivaji
^For 1st respondent ... Mr.K.M.Vijayakumar
Additional Govt. Pleader
For 2nd respondent ... Mr.V.Perumal
:ORDER
The petitioner in the contempt petition filed W.P.(MD)No.2919 of 2008 on
the file of this Court against the 1st and 2nd respondent and others, directing
the 1st respondent to remove the power looms machinery and the electric motor
installed at Door No.10/16/ Ujjisamy Kovil Street(West), Chokkalingapuram,
Aruppukottai 626 101, Virudhunagar District, pursuant to his notice issued by
him on 06.06.2007.
2.According to the petitioner, the Ujjisamy Kovil Street(West),
Chokkalingapuram, Aruppukottai 626 101, is a residential area and he applied to
the 1st respondent to take action against the 2nd respondent, who has installed
power looms and running the same by using 5 horse power electric motor and as
per the communication of the 1st respondent dated 08.08.2007, informed that the
premises in question is being used for industrial purpose without any license
and action has been taken under Section 250 of the Tamil Nadu District
Municipalities Act, 1920.
3.It is also stated in the writ affidavit that the 1st respondent sent a
notice under Section 250 of the Act on 06.06.2007 and thereafter, no follow up
action was taken by the 2nd respondent. In that circumstances, the petitioner
filed the writ petition for the reliefs stated therein.
4.The writ petition was heard on 27.11.2008 and at that time, the
respondents 2 to 4 were not represented by counsel and after hearing the learned
counsel for the petitioner and the 1st respondent, this Court passed the
following orders:
“In this factual matrix, I would like to highlight that it is the duty of
the Commissioner to see that within the jurisdiction in letter and spirit the
rules and regulations are enforced. It is obvious and axiomatic that power loom
cannot be allowed to function without getting necessary permission, the reason
is obvious. While permitting such power looms naturally the authority concerned
should impose conditions and that too after taking into account the disturbance
actually, which might be caused to the neighbours, permissions are granted only
after taking into account the location of the intended place, where the power
loom would be functioning. But in this case, it appears that the respondents 2
to 4 are operating their power looms without any permission.
Hence, in these circumstances, the following direction is issued:
The first respondent viz., the Commissioner, Aruppukottai Municipality,
Aruppukottai, Virudhunagar District, shall do well to see that legal steps are
taken to prevent from operating power looms within a period of two months from
the date of receipt of a copy of this order.”
5. In the meanwhile, the 2nd respondent herein also filed a writ petition
in W.P.(MD)No.11080 of 2008 against the 1st respondent herein, directing the 1st
respondent to issue license to the petitioner, in pursuance of the application
of the petitioner dated 20.05.2008 in application No.1135. That writ petition
was also disposed of by this Court, by order dated 03.12.2008, directing the 1st
respondent herein, to consider the application of the petitioner viz., the 2nd
respondent herein, within a period of 15 days from the date of receipt of a copy
of this order, after giving due opportunity of being heard to the petitioner.
The order passed in W.P.(MD)No.2919 of 2008 was sent to the 1st respondent
herein, by RPAD and he also received the same on 12.12.2008. The order passed
in W.P.(MD)No.11080 of 2008 was also received by the 1st respondent herein, on
11.12.2008. The 1st respondent as per the order made in W.P.(MD)No.11080 of 2008
granted license to the 2nd respondent on 31.12.2008. As the 1st respondent has
not acted in pursuance to the direction given by this Court in W.P.(MD)No.2919
of 2008 dated 27.11.2008, despite the same being brought to his notice, this
contempt petition was filed by the petitioner.
6.The 1st respondent filed a counter affidavit stating that he received
the order passed in W.P(MD)No.2919 of 2008 on 12.12.2008 and also received the
order in W.P.(MD)No.11080 of 2008 on 11.12.2008 and as per the order made in
W.P.(MD)No.11080 of 2008 he granted license to run the poor looms, after
following rules and regulations. He has further stated that since license was
issued to the 2nd respondent, Municipality is not in a position to take action
to prevent the operation of the power looms as directed by this Court.
7.The 2nd respondent also filed a counter affidavit stating that the order
passed in W.P.(MD)No.2919 of 2008 was in the absence of her counsel, whereas the
order was passed in W.P.(MD)No.11080 of 2008 in the presence of the Government
Pleader and it is further stated that she has already applied for the license
even on 20.05.2008 and as per Section 321(11) of the Tamil Nadu District
Municipality Act, the license is deemed to have been granted and therefore, even
before the order was passed in W.P.(MD)No.2919 of 2008, she has got the license
and hence, she has not committed any contempt and the order passed by the 1st
respondent was only in pursuance to the order passed by this Court in
W.P.(MD)No.11080 of 2008 and therefore, she has not committed any contempt.
8.The 1st respondent also filed the additional affidavit on 17.07.2009
wherein he has stated in para 3 and 4 as follows: “It is submitted that the
above narrated facts are not correct from the part of the our office records on
31.12.2008. Our office has given only permission to erect 7 power looms each
having 0.65 H.P. and one 0.5. H.P Electric Motor as in the same permission
letter of our office. Further stated, after installation of the power looms and
electric Motor, the applicant has to pay required license fee into the Municipal
Office, and to apply for the proper license to run the power looms.
Here the 2nd respondent has paid the license fees at Rs.325/- (Rupees
Three hundred and twenty five only) on 05.02.2009 and the same is received by
our office on the same date. But till date proper license was not issued to the
2nd respondent.”
9.Mr.A.Sivaji, the learned counsel appearing for the petitioner, would
contend that both the respondents have committed contempt of Court by willfully
disobeying the order of this Court and the 1st respondent knowing fully well
that this Court has directed him to take all legal steps to prevent from
operating the poor looms within a period of 2 months, granted permission to the
2nd respondent and therefore, he is guilty of contempt.
10.The learned counsel would further submit that the 2nd respondent was
also aware of the order passed in W.P.(MD)No.2919 of 2008 and therefore, she
should not have run the power looms and hence, she also committed the contempt.
11.It is submitted by the learned counsel appearing for the petitioner
that the area is a residential area and therefore, no industries shall be
allowed to run in that area, and the 1st respondent without any regard for the
same permitted not only the erection of machineries but also allowed the 2nd
respondent to run the factory in utter disregard to the order passed by this
Court, which specifically directed the 1st respondent to take all steps to
prevent the operation of the power looms.
12.Mr.Perumal, the learned counsel appearing for the 2nd respondent, would
contend that the area is not a residential area, and it is a mixed residential
and industrial area and therefore, there is no prohibition for having a power
loom industry in that area.
13.The learned counsel appearing for the 2nd respondent would also insist
that under Section 321(11) of the Act ,once license was not issued within a
period of 15 days from the date of application, it is deemed to have been
granted and hence, there is no need for her to obtain license from the 1st
respondent as she has already applied for license even on 25.05.2008 and only by
way of abundant caution, she filed the writ W.P.(MD)No.11080 of 2008, directing
the 1st respondent to grant license.
14.For better appreciation of the facts in this case, the provisions of
Section 250 and 321 has to he considered.
15.Section 250 deals with the application to be made for construction,
establishment or installation of factory, workshop or workplace in which steam
or other power is to be employed. If we go through the various clause in
Section 250, it only deals with granting or permission for construction,
establishment or installation of factory etc., The grant of license or
permission is dealt with under Section 321 and therefore, the deeming provisions
under section 250 will only apply to the construction or installation of factory
or work shop.
16.It is stated by the 2nd respondent in her affidavit in W.P.(MD)No.11080
of 2008, she applied for license under Section 250 of the Tamil Nadu District
Municipality Act. It is her case that she was running the power looms from 1983
and the neighbours in that locality have no objection to run the power looms and
the 1st respondent, in his letter dated 30.03.2007 has stated that the area
viz., Ward No.9, Survey No.591/22, Ujjisamy Kovil Street (West),
Chokkalingapuram, Aruppukottai, is having more power looms and being developed
as a mixed area. Therefore, it was contended by the learned counsel for the 2nd
respondent that she has applied under Section 250 of the Act and as no order has
been passed by the 1st respondent within a period of 16 days license, the
license is deemed to have been given and therefore, there is no act of contempt
committed by the 2nd respondent.
17.According to me, section 250 deals with applying for permission for
construction, establishment and installation of work shop and it has nothing to
do for the grant of license. Therefore, deeming provisions under Section 250
would be taken into account only in respect of permission and it cannot be
applied to license. It is one thing to say that permission is granted for
construction or installation of factory or machinery and another thing to say
that the license was granted to run the factory or machinery. Both cannot be
confused as one of the same thing. It is made clear by the provisions in 321 of
the Act. Therefore, the 2nd respondent has only applied for permission under
section 250 of the Tamil Nadu District Municipalities Act and she has not
applied for license under Section 321 and it is further made clear, by the order
of the 1st respondent dated 31.12.2008, wherein it has been specifically stated
that after the installation of the machinery for running the machineries,
separate application has to be made by paying separate fee. The various
conditions annexed to the order dated 31.12.2008 would also make it clear that
the permission was granted by the 1st respondent in response to the application
of the 2nd respondent dated 25.05.2008 was only as per Section 250 of the Act
and permission was granted only for the purpose of installation of machinery.
It is also stated in that order dated 31.12.2008 that permission is granted for
installation of the machineries mentioned thereunder. Therefore, the 1st
respondent was also aware of the fact that permission was sought for by the 2nd
respondent only for installation of machinery and that order was granted on
31.12.2008.
18.But the counter affidavit filed by the 1st respondent on 16.07.2009
would prove that the 1st respondent not only granted permission under Section
250, but also granted license to the 2nd respondent to run the machineries. It
is stated by the 1st respondent in his counter affidavit dated 16.07.2009 in
para 3 that on receipt of the order viz., the order passed in W.P.(MD)No.11080
of 2008 in order to obey the direction issued by this Court, the Municipality
has considered the application of the petitioner in W.P.(MD)No.11080 of 2008 and
on 31.12.2008 granted license to run the power looms after following the rules
and regulations.
19.Therefore, he made it very clear that as per his order dated 31.12.2008
he has granted license to run the power looms. He further stated that as
license was issued to the respondent, he could not comply with the direction of
this Honourable Court made in W.P.(MD)No.2919 of 2008. The specific wordings in
that affidavit are as follows:
“In order to obey the direction by this Hon’be court with in a period of
15 days, the respondent Municipality has considered the application of the
petitioner in W.P.(MD)No.2008 and on 31.12.2008 and granted permission to
install the machineries after following the Rules and Regulations. Since
permission was issued to the 2nd respondent in W.P.No.2919 of 2008 the
respondent Municipality was not in a position to take action to prevent to the
operation of the power loom as directed by this Hon’ble Court”.
Therefore, according to the 1st respondent, he was aware of the order passed in
W.P.(MD)No.2919 of 2008, which directed him to take all legal steps to prevent
the operation of the poor looms and despite the said order dated 31.12.2008 made
in W.P.(MD)No.2919 of 2008, he has granted license to the 2nd respondent.
20.According to me, in W.P.(MD)No.11080 of 2008 there is no specific
direction to the 1st respondent to grant permission or license to the 2nd
respondent, in pursuance to her application dated 20.05.2008. This Court has
only directed the 1st respondent to consider the representation of the 2nd
respondent within a period of 15 days from the date of the receipt of a copy of
this order. Therefore, the 1st respondent on receipt of the order passed in
W.P.(MD)No.11080 of 2008 and order passed in W.P.(MD)2919 of 2008 should not
have granted license or permission to the 2nd respondent and having regard to
the order passed in W.P.(MD)No.2919 of 2008 ought to have directed the 2nd
respondent to approach this Court for specific direction in the light of the
order passed in W.P.(MD)No.2919 of 2008 and instead of taking that recourse
without any regard to the order passed in W.P.(MD)No.2919 of 2008, the 1st
respondent granted permission/license to the 2nd respondent and has also stated
in the affidavit that as license has been granted to the 2nd respondent, he
could not comply with the order passed in W.P.(MD)No.2919 of 2008. Therefore,
the act of the 1st respondent amounts to disobeying the order passed in
W.P.(MD)No.2919 of 2008 and it is willful and deliberate and therefore, he is
guilty of having committed the contempt of this Court order.
21.The 1st respondent during the course of hearing of the contempt
petition filed the additional counter affidavit dated 17.07.2009 wherein he has
stated that the allegations made by him in the earlier affidavit, which was
referred above are not correct and as per his order dated 31.12.2008, he has
given only permission to erect seven power looms each having 0.5.H.P. and after
installation of the power looms, the 2nd respondent has to pay the required
license fee and applied for the proper license and the 2nd respondent has paid
the license fee on 05.02.2009 and till date no license was issued and therefore,
he has stated that he never disobeyed the order of this Court.
22.Of course, it is true that as per the order dated 31.12.2008,
permission alone was given to install the machineries. But having regard to the
allegations made in the earlier affidavit, which specifically admitted that the
license was granted for running the machineries and the conduct of the 1st
respondent in not taking any action to prevent the operation of the poor looms,
though in the order dated 31.12.2008, he granted only permission to the 2nd
respondent, would all cumulatively prove that the 1st respondent has willfully
and deliberately disobeyed the order of this Court.
23.As I have held that the 1st respondent has committed contempt of Court,
I will have to impose the proper punishment that must be imposed on the 1st
respondent.
24.It is submitted by the learned Additional Government Pleader,
K.M.Vijayakumar, that the 1st respondent, has tendered unconditional apology in
his affidavit and he is sincere in his apology and he has also purged the
contempt by passing an order dated 21.07.2009, cancelling the permission granted
by the order dated 31.12.2008 and also prohibited the 2nd respondent from
operating the power looms as per the order passed in W.P.(MD)No.2919 of 2008 and
therefore, the Court must take lenient view on the 1st respondent.
25.It is seen from the conduct of the 1st respondent that having been
fully aware of the order passed in W.P.(MD)No.2919 of 2008, he has chosen to
grant permission/license to the 2nd respondent, though as per the order made in
W.P.(MD)No.11080 of 2008 there was no direction to him to grant permission or
license.
26.On the other hand, the 1st respondent has also filed a affidavit to
that effect, as license was granted, to the 2nd respondent he is not in a
position to take action to prevent the operation of the power looms, as per the
order made in W.P.(MD)No.2919 of 2008. These facts would prove that the 1st
respondent has willfully and deliberately committed the contempt and his act of
tendering unconditional apology and purging the contempt would not relieve him
from the deliberate act committed by him.
27.It has been held in the Judgment reported in 2009(4) 213 in the case of
C.Elumalai and others vs. A.G.L.Irudayaraj and another, “5.31.Apology is an act
of contrition. Unless apology is offered at the earliest opportunity and in
good grace, the apology is shorn of penitence and hence it is liable to be
rejected. If the apology is offered at the time when the contemnor finds that
the court is going to impose punishment it ceases to be an apology and become an
act of a cringing coward.
32.Apology is not a weapon of defence to purge the guilty of their office,
nor is it intended to operate as universal panacea, but it is intended to be
evidence of real contriteness. As was noted in L.D.Jaikwal v. State of U.P
(1984)3 SCC 405;1984 SCC (Cri) 421 SCC p.406, para-
“Apology shall not be paper apology and expression of sorrow should come
form the heart and not from the pen. For it is one thing to ‘say’ sorry-it is
another to ‘feel’ sorry”
28.It is further stated in the judgment reported in 2003(11)SCC page 1, in
the case of Ashok Paper Kamgar Union v. Dharma Godah, “Willful means an act or
omission which is done voluntarily and with the specific intend 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 bad purpose either to disobey or to
disregard the law. According to the Court, it signifies the act done with evil
intent or with a bad motive or purpose. It was observed that the act or
omission has to be judged having regard to the facts and circumstances of each
case.
29.It is further held in 1999(7) SCC 569 in the case of Kapildeo Prasad
Sah v. State of Bihar that for holding a person to have committed contempt, it
must be shown that there was willful disobedience of the judgment or order of
the court. But it was indicated that even negligence and carelessness may
amount to contempt. It was further observed that issuance of notice for
contempt of court and power to punish are having far-reaching consequences, and
as such, they should be resorted to only when a clear case of willful
disobedience of the court’s order is made out. A petitioner who complains (sic
of a) breach of court’s order must allege deliberate or contumacious
disobedience of the court’s order and if such allegation is proved, contempt can
be said to have been made out, not otherwise. The Court noted that power to
punish for contempt is intended to maintain effective legal system. It is
exercised to prevent perversion of the course of justice
In the celebrated decision of Attorney General v. Times Newspaper Ltd.
1974 AC 273 (1973) 3 WLR 298:(1973)3 All ER 54(HL) Lord Diplock stated (AC
p.308A)
‘… There is an element of public policy in punishing civil contempt, since
the administration of justice would be undermined if the order of any court of
law could be disregarded with impunity…
30.From the above noted decisions, punishing a person for contempt of
Court is not only the power, but also the duty of the Court to uphold and
maintain the dignity of Courts and majesty of law.
31.Bearing in mind the principles stated in the above judgments and having
regard to the conduct of the 1st respondent in passing the order dated
21.07.2009, by which, he attempted to purge the contempt, I impose a fine of
Rs.1,000/- (Rupees One thousand only) against the 1st respondent as punishment
for having committed the contempt of this Court order. So far as the 2nd
respondent is concerned, she has not disobeyed any order of this Court and
hence, this contempt petition against the 2nd respondent is dismissed.
Consequently, connected Sub. Application No.2 of 2009 is also dismissed. Two
weeks time is granted for payment of the fine and the 1st respondent is directed
to pay the fine amount of Rs.1,000/- to the credit of Hon’ble Chief Justice
Relief Fund.
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