Madras High Court
B.Balakrishnan @ Parthe Bhaskar vs ) Vasudevan on 22 July, 2008
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
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, 2007 as could be seen from the report of the Architect. The Roof covering work using Kalzip commenced on 24th January, 2007 by M/s.Polybond Organics Pvt. Ltd., and was completed on 28th April, 2007 and the dome was thus made fit for occupation in all respects. Besides the location of the said dome is also indicating in the sketch filed herewith. The dome is a temporary structure which would be removed after the constructions on the site are commenced. The dome is for the purpose of exhibiting the model flats."
19. A bare reading of the said paragraph will make it clear that nowhere the respondents have admitted that the temporary structure, namely the tin dome was put up after passing of the order of interim injunction on 02.05.2007. On the other hand, it has been made abundantly clear that the work order for the construction of the dome was given to one M/s.Hassan Brothers on 10.10.2006; that the construction of the same was completed in all respects on 28.03.2007 as could be seen from the report of the architect and that the roof covering using Kalsip commenced on 24.01.2007 by M/s.Polybond Organics Pvt. Ltd. and was completed on 28.04.2007 making the same fit for occupation in all respects for the purpose of locating project office and exhibiting model flats. The respondents have also produced a separate typed set of papers to show that the construction of the dome with model flats was over in April 2007 itself. Document No.1 in the typed set of papers is the copy of the offer letter given by M/s.Polybond Organics Pvt. Ltd. to M/s.Ozone Projects Private Limited on 19.08.2006. Accepting the offer letter, work order was given by M/s.Ozone Projects Private Limited to M/s.Polybond Organics on 13.09.2006. Payment of advance towards work order is evidenced by Inter Office Memo dated 25.09.2006. By a letter dated 12.01.2007, Polybond Organics Pvt. Ltd. had made a request for provision of further funds. Payment certificate evidencing the payment made to M/s.Polybond Organics Pvt. Ltd. was issued on 17.01.2007. M/s.Polybond Organics Pvt. Ltd. has sent the final bill on 26.04.2007 to M/s.Ozone Projects Private Ltd. Construction of the roofing for the dome was entrusted to Polybond Organics Pvt. Ltd. as evidenced from the work order dated 13.09.2006. The fabrication and erection of shell structural show flats inside the dome was entrusted to M/s.Hassan Brothers as evidenced by the work order dated 10.10.2006, the offer letter of M/s.Hassan Brothers to M/s.Ozone Projects Private Limited dated 11.10.2006, the bill of Synergy Property Development Services P Ltd. sent to the M/s.Ozone Projects Private Limited dated 02.12.2006, payment certificate dated 04.12.2006, amended work order to Hassan Brothers dated 22.02.2007, pre-final bill raised by Synergy Property Development Services P Ltd. dated 09.04.2007 and payment certificate dated 23.04.2007.
20. From all the above said documents produced by the respondents, it is quite clear that construction of the dome comprising the marketing office and the make shift model flats which are capable of being dismantled and removed was commenced and completed much earlier than the date on which the interim order of injunction was passed by this court in M.P.Nos.1 and 2 of 2007 in W.P.No.16346 of 2007.
21. On the other hand, the learned senior counsel for the petitioner has produced photographs taken on 29.01.2008 showing the existence of the dome, in which the marketing office and the model flats had been located. Admittedly, the dome was in existence on 29.01.2008, the date on which the photographs were taken by the petitioner. Had the petitioner filed photographs of the property taken anywhere in between 02.05.2007, the date of the interim order and 29.01.2008 showing that there was no dome in existence then this court would be in a position to arrive at a conclusion that the said dome was constructed subsequent to the passing of the order of interim injunction and in violation of the same. But in this case, apart from the photographs taken on 29.01.2008 which show the existence of the dome, three more photographs are enclosed in the typed set of papers showing the progress of the construction of the dome. But, unfortunately those photographs do not contain the date on which they were taken. According to the respondents, the said photographs taken before the construction of the dome and during the construction of the dome have been produced to make it appear as if the construction was started and completed after the order of interim injunction was passed in M.P.Nos.1 and 2 of 2007. As rightly pointed out by the learned senior counsel for the respondent, except the photographs which show the existence of the dome in its full shape, the other photographs do not contain the date on which thy were taken. Therefore, this court has to accept the contention of the learned senior counsel for the respondent that those photographs taken earlier have been used by the petitioner to make it appear as if the construction was started and going on after the order of interim injunction was passed.
22. The said conclusion will gain strength in the light of the fact that the petitioner himself had been filing several proceedings in the City Civil Court from 19.08.1998 onwards and in the High Court in a desperate attempt to get an interim order to stall any development being made in the property by M/s.Ozone Projects Private Limited. The unsuccessful proceedings initiated by the petitioner have been listed in the earlier part of this order. However, at the cost of repetition, the same are once again enumerated here under:-
a) In 1998 itself, the petitioner, claiming to be the power agent of the heirs of Alavattan, filed a suit in O.S.No.5836 of 1998 before the City Civil Court, Chennai and an interlocutory application in I.A.No.13847 of 1998 for injunction against M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd., the vendor of M/s.Ozone Projects Private Limited. But the said interlocutory application was dismissed with an observation that the said petition was filed with malafide intention to illegally grab the property concerned in that suit. As his attempt to get an interim injunction was proved unsuccessful, the petitioner withdrew the said suit with liberty to file fresh suit. But, it is a fact not in dispute that subsequent thereto no fresh suit was filed by the petitioner. Once again in 2002, Jagannatha Pandian and S.Rajesh, claiming to be the persons put in possession by the petitioner herein under six power of attorney deeds of Adhikesavan and others, filed a suit in O.S.No.3778 of 2002 along with an interlocutory application I.A.No.10700 of 2002 for an interim injunction. As the said interim injunction petition was dismissed holding that they were not entitled to any relief, they allowed the said suit itself to be dismissed for non prosecution on 23.08.2005. The filing of the said suit by the above said persons (Jagannatha Pandian and Rajesh) prompted M/s.Ozone Projects Private Limited to give a complaint against them for falsification of records based on which a case was registered in Crime No.653 of 2002 on the file of the Central Crime Branch, Chennai. Adhikesavan and 20 others, the so-called principals of the petitioner herein approached this court by way of a writ petition in W.P.No.12613 of 2001 before this court challenging the order of the Commissioner of Land Administration dated 14.05.2001. In the miscellaneous petition W.M.P.No.23666 of 2001 filed in the said writ petition, this court refused to grant interim injunction. As against the same the said persons preferred an appeal Writ Appeal No.2263 of 2002 along with miscellaneous petitions W.A.M.P.No.3859 and 4835 of 2002. The division Bench of this Hon'ble court did not grant any interim injunction and hence the writ appeal itself was not pressed.
b) In addition to the fact that all the attempts made by the petitioner herein and his so-called principals to get an order of injunction proved unsuccessful, the vendor of M/s.Ozone Projects Private Ltd., namely M/s.Shri Krishna Tiles and Potteries (Madras) Private Ltd., had got an order of interim injunction against the so-called principals of the petitioner and several others in Application No.694/2002 in C.S.No.696 of 2002 in respect of a larger property, of which Survey No.230/7A also formed part. Similarly an order of injunction was obtained against the petitioner himself and the said persons from disturbing or interfering with the peaceful possession and enjoyment of the properties comprised in Survey No.229/1A, in Application No.711 of 2002 in C.S.No.730 of 2002 on the file of this court. Only in the said background, without disclosing the above said facts and suppressing the above said facts, the petitioner seems to have obtained an order of interim injunction in M.P.Nos.1 and 2 of 2007 in W.P.No.16346 of 2007, which order is now said to have been violated by the respondents.
23. Under the above said circumstances alone, the photographs without dates, showing the progress of the construction of the dome have been included in the typed set of papers filed by the petitioner herein in an attempt to show that the construction was made after passing of the interim order dated 02.05.2007. In the light of the fact that the petitioner had been trying to stall the property development intended to be made by the M/s.Ozone Projects Private Limited long back in 2002 itself, the contention of the respondents that the petitioner has used the photographs taken at that point of time long before the date on which interim order passed in M.P.Nos.1 and 2 of 2007 in W.P.No.16346 of 2007, to make it appear as if the construction of the dome was made subsequent to the said date, has got to be accepted.
24. Therefore, this court comes to the conclusion that the petitioner has not proved that the respondent constructed the dome, in which the marketing office and make shift model flats were located, after the passing of the order of the interim injunction on 02.05.2007 and that on the other hand, with more than sufficient materials, the respondents have proved that the construction of the dome was not only commenced but also completed before the passing of the order of interim injunction obtained in M.P.Nos.1 and 2 of 2007 in W.P.No.16346 of 2007.
25. This court comes to the conclusion that the petitioner has not made out a case of contempt against the respondent in Contempt Petition No.568 of 2007 and hence the same deserves to be dismissed.
26. So far as contempt petition No.214/2008 is concerned, it is the case of the petitioner that the respondents violated the undertaking given by them before this court in W.P.No.16346 of 2007 on 28.06.2007, based on which the writ petition itself was disposed of. The undertaking given on behalf of M/s.Ozone Projects Private Limited and incorporated in the order of this court dated 28.06.2007 is found in paragraph 2 of the said order of this court which reads as follows:
"2. Mr.P.S.Raman, learned senior counsel for the third respondent (M/s.Ozone Contructions Private Limited) that without planning permission, the third respondent will not commence any construction activities"
The third respondent referred to in the said paragraph is M/s.Ozone Projects Private Limited.
27. The learned senior counsel for the petitioner has relied on the judgment of the Supreme Court in Smt.Pushpaben and another Vs. Narandas V.Badiani and another reported in (1979) 2 Supreme Court Cases 394 wherein the accused gave an undertaking to the court that he would pay a particular amount to the complainant on or before a particular date with interest and in view of such an undertaking the case was permitted to be compromised and the accused was acquitted, it was held that the violation of the said undertaking by the accused amounted to an act of civil contempt. There cannot be any second opinion that an undertaking given before the court should be respected and given effect to in its letter and spirit. It is not the contention of the respondent that there can be excuses for violating the undertaking given to this court in W.P.No.16346 of 2007. The undertaking given to this court in W.P.No.16346 is that they would not commence construction activities without getting planning permission. Admittedly, till date planning permission has not been obtained. But it is the case of the respondents that they have not commenced any construction activity. According to the respondents, the said undertaking was given with the understanding that preliminary work of preparing the ground suitable for construction work, soil testing, pile marking and pile testing would not be included in the definition of construction activities and hence the said acts of respondent could never be construed to be acts violating the undertaking given before the court.
28. The learned senior counsel for the petitioner submitted that the expression "willful" disobedience found in Section 2(b) of the Contempt of Courts Act, 1971 does not necessarily mean that the act must be designed or deliberate and that the court dealing with the contempt petition could not traverse beyond the order non compliance of which is alleged. In support of the above said contentions, the learned senior counsel for the petitioner relied on the judgment of the Punjab and Haryana High Court in Court on its own Motion, Petitioner v. N.S.Kanwar, Respondent reported in 1995 CRI.L.J.1261 and the judgment of the Supreme Court in Union of India & Ors. v. Subedar Devassy PV. Reported in AIR 2006 SUPREME COURT 909. There cannot be any controversy over the proposition that act of disobedience to constitute contempt need not always be designed or deliberate and if a party fully knowing the order of the court and being aware of the consequences and implications of the court's order, ignores it or acts in violation of the court's order, it should be held that such disobedience is willful. There is also no controversy that the court dealing with the contempt petition cannot traverse beyond the order which is said to be violated and it cannot test it correctness and that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the person who is alleged to have committed the default in compliance of the judgment or order.
29. According to the petition averments, the respondents in contempt petition No.214 of 2008 have violated the said undertaking by dumping construction materials in the said property and by not only starting but also continuing with the construction work after the order of the court dated 28.06.2007 incorporating the said undertaking was passed. However, the learned senior counsel for the respondents would contend that the petitioner has falsely contended that the respondents not only started but also are continued the construction work even after giving such undertaking.
30. According to the contentions raised by the learned senior counsel for the respondents, construction activities as understood by the respondents, while giving the above said undertaking concerned, would not include any preparatory work like levelling and measuring the ground, soil testing, soil compaction, pile marking and pile testing. According to the respondents, what they did was to level the land, compact the soil so as to ensure that the same would withstand high rise building, pile marking and pile testing to decide where and in what manner the piles are to be provided for the support of the building intended to be constructed and the said preliminary works would never be construed to be the construction activities. The learned senior counsel for the respondents also submitted that the respondents have not put up any basement or pile foundation or column to say that they are part of the construction activities. According to the submissions made by the learned senior counsel for the respondents preparation of the ground and testing the soil to decide what kind of foundation is to be made will not amount to construction activity as understood by the respondents while giving undertaking and hence they have not violated even the undertaking given before this court on 28.06.2007. The learned senior counsel for the petitioner also was not in a position to deny the above said contention raised on behalf of the respondents that they did only above said acts, which are preliminary to the actual construction work. When the undertaking given on behalf of the respondents is capable of conveying also the meaning assigned by the learned senior counsel for the respondents and it is not so unambiguous that no preliminary work before the actual construction work would be undertaken, this court is not in a position to accept the contention of the petitioner that the respondents have violated the undertaking given before this court and committed contempt of court. On the other hand, this court is satisfied that the respondents have not started any actual construction work to say that they have violated the undertaking given by them.
31. For all the reasons stated above, this court has to come to the conclusion that the petitioner has not made out a case of contempt in Contempt Petition No.214 of 2008 also and hence the same is liable to be dismissed. Accordingly, contempt petition No.214 of 2008 is to be dismissed.
32. The petitioner herein has filed a Sub-Application No.201 of 2007 in Contempt Petition No.568 of 2007 seeking the appointment of an Advocate Commissioner to make a spot visit and submit a report. In the said sub-application, an interim order was passed on 13.07.2007 appointing Mr.D.Raja, Advocate as the Advocate-Commissioner to inspect the property and submit a report. The respondent therein has filed Sub-Application Nos.214 of 2007 and 215 of 2007 in Sub Application No.201 of 2007 in Contempt Petition No.568 of 2007 to recall the warrant issued by this court and stay of all further proceedings pursuant to the order appointing advocate-commissioner.
33. Sub-Application No.201 of 2008 in Contempt Petition No.568 of 2007 has been filed for appointment of an Advocate Commissioner to note down the physical features of the property concerned in the Contempt Petition No.568 of 2007. In fact, this court, by an order dated 19.07.2007, appointed Thiru.D.Raja, Advocate as Advocate Commissioner for the above said purpose. The allegation based on which the appointment of an Advocate Commissioner was sought is that in violation of the order of injunction granted in M.P.No.1 & 2 of 2007 in W.P.No.16346 of 2007, the respondent in contempt petition No.568 of 2007 constructed a tin dome locating the marketing office and model flats in the said dome. It is not in dispute that a tin dome has been fully constructed, within which the marketing office of M/s.Ozone Projects Private Limited and the make shift model flats have been located. It is also not in dispute that by the date Sub-Application No.201 of 2007 was filed and the date on which the order appointing Advocate- Commissioner was made, the construction of the dome and the erection of the temporary structures inside the dome for locating the marketing office and model flats was over. As rightly pointed out by the learned senior counsel for the respondents in the contempt petition, who are the petitioners in Sub-Application Nos.214 of 2007 and 215 of 2007 (one for stay of the order of appointment of Advocate Commissioner and other to recall the warrant issued to the Advocate Commissioner), the Advocate Commissioner cannot find out whether the construction was made prior to or subsequent to the order of injunction dated 02.05.2007. As it is admitted that the construction of the dome as well as the structures found inside the dome has already been completed, the only question remains to the decided is whether the dome and the structures found inside the dome were put up prior to the date of the order or subsequent to the said order. The said question is to be decided judicially by the court with the help of the documents produced on either side and the same cannot be delegated to the Advocate Commissioner.
34. In this case, we have already seen that the respondents in the contempt petitions have produced materials more than sufficient to show that the said construction was not only commenced but also completed prior to the date of the order of interim injunction dated 02.05.2007 passed by this court in W.P.M.P.Nos.1 and 2 of 2007 in W.P.No.16346 of 2007. Under these circumstances, this court accepts the contention of the learned senior counsel for the respondent in the contempt petition/petitioners in Sub-Application Nos.214 and 215 of 2007 that no useful purpose will be served by directing the Advocate Commissioner to inspect the property and submit a report regarding the physical features.
35. At this juncture, the conduct of the petitioner also becomes relevant. The petitioner unsuccessfully initiated a number of judicial proceedings before the City Civil Court and the High Court. Even after having suffered an order of injunction in the suit filed by the vendor of the M/s.Ozone Projects Private Limited, the petitioner has chosen to file the present writ petition, namely writ petition No.16346 of 2007. Even the said writ petition was disposed of after recording the undertaking of the M/s.Ozone Projects Private Limited that it won't commence construction work without obtaining planning permission and directing the CMDA to consider the objection and representation of the petitioner herein before according planning permission to M/s.Ozone Projects Private Limited. Now he has come forward with these present contempt petitions in his further attempt to stall the development proposed to be made by the M/s.Ozone Projects Private Limited. After the writ petition No.16346 of 2007 was disposed of by order dated 28.06.2007, at the instigation of the petitioner, one Gopal seems to have filed a public interest litigation seeking a Writ of Mandamus against the Government of Tamil Nadu represented by its Secretary to Department of Town and Country Planning and CMDA represented by its Member Secretary, directing them to take appropriate action against M/s.Ozone Projects Private Limited, HDFC Funds Limited, Reliance Land Private Limited and Reliance Urban Infrastructure Private Limited for allegedly constructing unauthorised structures in T.S.Nos.1/2, 2/2 and T.S.No.3/2 in Koyambedu village without necessary planning approval. The said writ petition was dismissed by a division bench consisting of the Hon'ble Chief Justice imposing a cost of Rs.5,000/- to the petitioner therein.
36. All the facts enumerated above show the desperate attempts made by the petitioner to stall the development proposed to be made by M/s.Ozone Projects Private Limited and that the present Sub-Application No.201 of 2007 is also one such attempt to protract the proceedings.
37. Therefore, this court is of the considered view that no useful purpose will be served by having the property inspected by the Advocate Commissioner. Hence the Sub-Application Nos.214 and 215 of 2007 are to be allowed. The order appointing Advocate Commissioner is to be stayed and the warrant issued to the Advocate Commissioner is to be recalled and the Sub-Application No.201/2007 in Contempt Petition No.568 of 2007 is liable to be dismissed.
P.R.SHIVAKUMAR, J.
asr/
38. In the result, Sub-Application Nos.214 and 215 of 2007 are allowed. Sub-Application No.201 of 2007 is dismissed. Contempt Petition Nos.568 of 2007 and 214 of 2008 are also dismissed.
22.07.2008 Index : Yes Internet : Yes asr/ Order in Cont.Petn.No.568 of 2007 and Cont.Petn.No.214/2008 Dated : 22.07.2008