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Judgment
R.S. Ramanathan, J.—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.
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 u/s 250 of the Tamil Nadu District Municipalities Act, 1920.
It is also stated in the writ affidavit that the 1st respondent sent a notice u/s 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The learned Counsel appearing for the 2nd respondent would also insist that u/s 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.
For better appreciation of the facts in this case, the provisions of Section 250 and 321 has to he considered.
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 u/s 321 and therefore, the deeming
provisions u/s 250 will only apply to the construction or installation of factory or work shop.
It is stated by the 2nd respondent in her affidavit in W.P.(MD)No.11080 of 2008, she applied for license u/s 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 u/s 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.
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 u/s 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 u/s 250 of the Tamil Nadu District Municipalities Act
and she has not applied for license u/s 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.
But the counter affidavit filed by the 1st respondent on 16.07.2009 would prove that the 1st respondent not only granted permission u/s 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.
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.
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.
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.
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.
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.
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.
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.
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.
It has been held in the Judgment reported in 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.
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 Vs. State of U.P., , 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
It is further stated in the judgment reported in 2003(11)SCC 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.
It is further held in Kapildeo Prasad Sah and Others Vs. State of Bihar and Others, 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...
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.
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.