DELHI DEVELOPMENT AUTHORITY v. ! SKIPPER CONSTRUCTION AND ANR. ETC.

~ ' I,

A

FEBRUARY 8, 1995

B [P.B. SWANT, S. MOHAN AND B.P. JEEVAN REDDY, Jl]

Constitution of India : Articles 129 and 142-Contempt of Court-- Respondents violating directions of Court-Also filing suit in High Court in respect of same subject matter regarding which their special leave petition had C been dismissed-Suo Motu notice to respondents by Court-Contemnors tendering japology-Held, respondents' actions amounted to Contempt of Court-Apology is not a weapon to defence forged to purge guilt of offen- ces-Contemnors sentenced to simple imprisonment-However, sentence defe"ed subject to conditions. D Contempt of Courts Act, 1971 : ss.2(a) & 2(c)-contempt of Court-Criminal contempt-Motive-Contemnors filing suit in High Court after dismissal of special leave petition on same subject matter by Supreme Court-Held, to file a suit and pray for injunction after dismissal of special leave petition, would clearly constitute criminal contempt-A wilful action on E part of contemnor~ to undennine dignity of Supreme Court and the majesty of law-Conduct of Contemnors tends to bring authority and administration of law into disrespect or even disregard-It equally tends to interfere with or prejudice litigants during litigation-In the case of criminal contempt intention or motive is i"elevant-So called bona fides as filling of suits because of p "legally opined" are totally i"elevant.

The petitioner, Dclhi Development Authority held an auction of a Commercial towers plot on 8.10.1980. The bid of the Respondent-Company being the highest i.e. Rs.9.82 Crores was accepted and the respondents deposited 25% of the bid amount. Th~ DDA confirmed the bid and asked the respondents to make the balance payment of 75% of the bid amount within 90 days as per the conditions of the auction. The respondents went on delaying the payment. In 1987, the parties entered into an agreement 1 ~ereunder the respondents agreed to pay the amount in instalments by 15.9.89. However, the respondents did not pay the money and continued to delay the payment by approaching the Government for directions to the 1010

D.D.A v. SKIPPER CONSTN. 1011

DDA. The respondents further protracted the delay and filed a suit and thereafter a writ petition before the High Court. Inspite of directions of the High Court, the respondent did not deposit the amount. Ultimately, the suit and the writ petition were dismissed. The respondent filed a special leave petition before this Court against the judgment of the High ·Court dismissing the writ petition. B On 29.1.1991 this Court passed an interim order to the effect that the respondents would deposit the required amount with the DDA and that the respondents would not induct any person in the property or create any right in favour of any third party. Inspite of this, the respondents issued adver- tisement in newspapers on 4.2.1991 seeking to create third party rights in respect of the said property. The special leave petition was dismissed on 25.1.1993 and the DDA took possession of the property free from all en- cumbra:ices and the monies paid by the respondents were forfeited.

After dismissal ~f their special leave petition, the respondents once again filed a suit before the High Court claiming permanent injunction restraining the DDA from interfering with the title and possession of the property and for a declaration that all dues had been paid by the respon- dents to the DDA. The DDA filed application for rejection of the plaint contending that the suit was barred by resjudicata. It also issued notice for auction of the property. The High Court allowed the auction to proceed with, but restrained the DDA from accepting or confirming the bid. Ag~ grieved, the DDA filed the Special leave petition.

While disposing of the special leave petition of the DDA, the Court, exercising suo motu powers, issued notice to the partners of the respon· dent-Company to show cause as to why they should not be punished for F ... ~- contempt of Court for their acts of instituting a suit in the High Court in respect of the same subject matter after this Court confirmed the order of the High Court, and entering into agreement, handing over possession and creating interests in third parties in respect of premises in dispute in defiance of the order of this Court. · G Contemner No. 1 filed an affidavit stating that the suit was filed on legal advice a~d that he did not create any third party interests in the property himself in an much as on Company's advertisement, the DDA also advertised in the newspapers about the order of the Court, and the persons' who entered into agreement with the Company were fully aware of the H

p. 1012

A litigation and as such no third party rights were created. The contemnors also· tendered unconditional and unqualified apology. I Disposi~g of the Contempt Petition, this Court ff.ELD 1:1. Abuse of the process of court calculated to hamper the due B course of judicial proceeding or the orderly administration of justice is a contempt of court. Taking into account the entire course of conduct of the contemners it is clear that their action amounted to contempt of court. The contemners are guilty of criminal contempt as defined under Section 2(c) of the Contempt of Court Act, 1971. [1028-F, 1029-F] \

C in 1.2. I a case of contempt of Supreme Court, the Court can issue notice suo motu and initiate contempt proceeding under Article 129 of the Constitution. [1025-B]

Shri C.K Daphtary v. Shri 0.P. Gupta, [1971) 1 SCC 626 and Sukhdev D Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court, [1954) SCR 454, relied on.

. Advocate-General State of Bihar v. M/s. Madhya Pradesh Khair In- ~r dustries, [1980) 3 SCC 311; Bloom Dekor v. Subhash Himmatlal Desai, [1994) 6 SCC 322 and St. James's Evening Post, (1742) 2 Atk. 409, referred to.

2.1. After disposal of the special leave petition with regard to property in dispute when DDA had taken physical possession of the plot, to file a suit and pray for injunction in respect of the very sa~e subject matter would clearly constitute criminal contempt. Similarly, the other prayers in the suit are aimed at atta~ng directly or indirectly the adverse finding rendered by the High Court in the writ petition against which the speci?I ·leave petition was med and which was dismissed. [1027-H, 1028-A]

2.2. The filing of the suit in the High Court after dismissal of the special leave petition is nothing but a wilful action on the part of the contemners to undermine the dignity of this Court and the majesty of law. The conduct of the contemners tends to bring the authority and admiiiistra- tion of law into disrespect or even disregard. It equally tends to interfere with or prejudice the litigants during the li!igation. [1028-F]

H 2.3. In the case of a criminal contempt, the intention or motive is

D.D.A v. SKIPPER CONSTN. 1013 irrelevant. Therefore, even assuming bona fi!_ie the contemners thought they A could file the suit because it was "legally opined" that the writ was not a substitute, the so- called bona tides are totally irrelevant. [1028-E]

Rachapudi Subba Rao v. Advocate General, Andhra Pradesh, [1981] 2 sec 577, relied on. B Hoshiar Singh v. Gurbachan Singh, AIR (1962) SC 1089, referred to.

3.1. The object of the advertisement was noting more than to create rights in favour of third parties. It is somewhat surprising that the contemners' ingenuity grows by the passage of time. There was booking for only 870 flats but later it gets increased and ultimately that figure has C swollen to 2,750. There are agreements entered into even after the order of 29.1.91 as evidenced by the statement in the additional affidavit filed by the contemnor. It cannot be said that by merely entering into agreement no interest is created in the immovable property. or course, this stems from Section 54 of the Transfer of Property Act. The agreement holder has a D right to get another document, namely, the sale deed. Equally, he can further enforce the agreement and seek specific performance thereof. [1030-F-H] 3.2. Clause (iv) of the order dated 29.1.1991 has been flouted. This is not a case of a stray act but deliberate repetitive acts by making hard bargains by dubious methods. This is an intentional act to cheat the public E with an evil design. [1031-B]

3.3. The letters written by the contemnor to the different buyers and the acknowledgment of the money received clearly show that there is a wilful disobedience of the order dated 29.1.91. F

4. No doubt, the contemnors have tendered apology. This apology is coming forth after sensing that the adventures have turned out to be misad- ventures realising that the contemners have ended up in cul-de-sac. An apology is not a weapon of defence forged to purge the guilt of the offences nor is it intended to operate as a universal panacea. It is intended to be G evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power. The apology does not seem to be so in this case. The conduct of contemners is highly reprehensive. [1033-G-H]

5. The second respondent is the wife of the first respondent. She does H

p. 1014

A not seem to have played any active role in all these transactions and evens .. As an Indian wife, dutiful and obedient, she seems to have only followed the dictates and desires of her husband. In the process she had done no more than lending her name both as a Directo,r to the Skipper as well as to the various acts done by him in the name of the company. It will be B unrealistic to ignore this fact against our social background. A pragmatic view of the matter is to be taken and her case to be distinguished from that of her husband as far as punishment to be imposed on them is concerned. Such a distinction will in no way minimise the gravity of the contempt that she has committed. [1034-B-C]

C 7.1 Contemner-respondent No. 1, is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 50,000. Contemner- respondent No. 2 is sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs. 50,000. [1034-D]

7.2. All the properties and the bank accounts standing in the names D of the contemners and the Director ofM/s. Skipper Construction Co. (Pvt.) Ltd. and their wives, sons and unmarried daughters will stand attached. [1034-F]

8. However, the sentence of imprisonment imposed on both the con- temners is deferred subject to the conditions and till the time stated below: E [1034-HJ (1) The contemners shall furnish bank guarantee in favour of the Registrar General of this Court in the amount of Rs. 11 crores on or before 31st M~rch, 1995. The bank guarantee will be given for a period of one year from the date of furnishing the bank guarantee. [1035~AJ F (2) The contemners shall deposit the entire amount of Rs. 11 crores by a Bank Draft in the Registry of this Court on or before 30th November,

1995. Ifthey fail to do so the bank guarantee will become encashable and will be encashed forthwith after 30th November, 1995. [1035-B]

G (3) If the contcmners fail to give the bank guarantee by 31st March, 1995 as aforesaid, the sentence of imprisonment will become enforceable at one. [1035-C]

(4) No application for extension of time either to furnish the bank guarantee or to make the payment will be entertained by this Court. H [1035-DJ

D.D.A v. SKIPPER CONSTN. 1015

(5) The contemners shall not leave the country without the express A ,.f permission of this Court. (1035-E]

(6) The attachment of properties and the bank accounts shall stand raised on the contemners furnishing the bank guarantee as aforesaid. [1035-G] B CIVIL APPELLATE JURISDICTION: I.A. Nos. 3 & 14of1994.

IN

S.L.P. (C) No. 21000of1993.

From the Judgment and Order dated 9.12.93 of the Delhi High Court C in Suit No. 770 of 1993.

WITH

Suo Moto Contempt Petition No. 256 of 1994. D Arun Jaitely, G. Ramaswamy, Gopal Subramaiam, V.A. Bobde, Ar- vind K. Nigam, Ms. K. J aiswa~. Ms. Indra Sawhney, L.K. Gupta, Arun Khosla, R. Ashok, S. Rajappa, D.D. Sharma, S. Sukuraman, S.D. Singh for JBD & Co., Ms. Sangeeta Kumar, L.R. Singh, R.S. Suri, K.C.Dua, P.P. Juneja and Suman J. Khaitan for the Appearing. parties. E The following Order of the Coui:t was delivered :

The facts leading to contempt proceedings are as under :

On 8.10.1980, an auction was held by the Delhi Development Authority (hereinafter referred to as the 'DDA') of the Commercial Tower F Plot, Jhandewalan, Block E, New Delhi ad measuring about 2540 sq. mtrs. The first respondent, M/s. Skipper Construction Co. (P) Ltd. (hereinafter referred to as the 'Skipper') was the highest bidder, its bid being Rs.9.82 crores. As per the conditions of the auction, Skipper deposited 25% of the bid amount. The ·said bid was confirmed by the ODA on 14.10.1980. G Skipper was called upon to make the balance of payment of 75% of the bid amount within 90 days as per the conditions of the a~ction.

The Government of India issued directions to the DDA to accept the request of Skipper and to grant an indulgence to it and directed the ODA to reschedule the recovery of 75% of the bid amount with interest , H

1016 SUPREME COURT REPORTS · [1995] 1 S.C.R.

A from the Skipper. Consequent to this, DDA called upon the Skipper to enter into· fresh agreement, licence agreement and furnish bank guarantees in compliance with the directions of the Central Government.

On 11.8,1987, Skipper entered into a licence agreement, paid 50% of the original bid and secured payment of the balance 50% of the bid and B interest at the rate of 18% per. annum thereon by submitting bank guaran- tee for Rs. 9.28 crores, in terms of which a sum of approximately 1.944 crores was required to be paid as each instalment. A total of 5 instalments was payable every six months, the first being due on 15.9.1987 and the last on or about 15.9.1989. c Against the first instalment of Rs. 1.944 crores falling due on 15.9.1987, DDA recovered about Rs. 88.76 lacs by encashment of the bank guarantee on 7.12.1987. Thereafter the first respondent did not pay in terms of the agreement. ·

D On 4.10.1988, the Lt. Governor issued a direction at the request of Skipper, deferring recovery from Skipper of the> 2nd instalment as per the agreement dated 11.8.1987 till one month after the sanctioning of the ' r building plans.

In August, 1989, the first respondent filed writ petition in the High E Court in Delhi, being CWP No. 2371of1989. The principal relief sought in the writ petition related to sanctioning of building plans and permission for construction. An interim order was passed directing the Skipper to furnish fresh bank guarantee since the bank guarantee furnished earlier had lapsed. The DDA did not encash the fresh bank guarantee which was F defective. Time and again the DDA represented to the Court that the -... . monies were outstanding from the Skipper and no indulgence ought to be shown to them till the payments were made. The question of payment of the outstanding amount of over Rs.8 crores under the principal sum itself was deferred from time to time. G On 16.2.1990 the Lt. Governor revoked the order dated 4.10.1988 deferring the payment of instalments. As a result the entire sum became ··payable in one lump sum. However, this order of the U. Governor was stayed by the Court. Thus, it become necessary for the DDA to grant conditional and provisional sanction to plans of the building subject to the H payment of monies due to the DDA. ·

D.D.A v. SKIPPER CONSlN. 1017.

On 19.3.1990, an interim order was passed by the Delhi High Court A by which Skipper was permitted. t~ commence construction without first depositing the dues of the ODA.I Against this order an appeal was preferred. The Division.Bench direct~d the payment of a token sum of Rs. 5 lacs which was offered by the Skipper as a gesture of goodwill within 2 days; a sum of Rs. 15 lacs within 15 days and· Rs. 1.944 crores within oue month to the ODA. It was further directed that the quantum of monies and the mode of payment will be decided at the time of final disposal of the writ petition.

Even this order was not complied with. Notwithstanding this, the Skipper approached the Court once ag~n f'Or extension of time to make payment and for direction to construct. The Court extended the time by one month on 16.4.1990, affording liberty to the DOA to encash the bank guarantee. The bank guarantee could not be encashed because it was conditional. By then the entire monies had fallen due. Those amounts had not been paid. The DOA filed SLP (C) Nos. 6338-6339 of 1990 against the interim order dated 19.3.1990 and 16.4.1990 passed by the High Court of Delhi. By an order dated 3.5.1990 this Court stayed further construction and made it conditional upon payment of Rs. 1.944 crores.

Suit No. 1875 of 1990 was filed by the Skipper for a direction that the DOA ought not to insist upon payment by cash or draft and ought to be directed to cncash bank guarantee. The learned Vacation Judge issued orders directing the DOA to invoke the bank guarantee. However, the suit was ultimately dismissed.

On 21.12.1990, a Division Bench of the Delhi High Court dismissed -""r CWP No. 2371 of 1989 directing Skipper to pay the DOA by cash or demand draft a sum of Rs. 8,12,68,789 within 30 days; to stop construction till payment is made; and in the event of non-payment by the Skipper DOA would be entitled to enter upon the property and forfeit the monies received by the ODA.

On 14.1.1971, detailed reasons for its operative order came to be rendered by the Division Bench of the Delhi High Court with further direction given effect to clause 15 of the licence agreement dated 11.8.1987 that in the event of non-compliance of the payment by the Skipper the property shall stand vested in the ODA, free from all encumbrances, in addition to the. forfeiture of the monies. .H

p. 1018

A Against the dismissal of CWP No. 2371 of 1989 Skipper filed SLP (C) No. 186 of 1991 before this Court. · .

On 29.1.1991, a Division Bench of this Court passed an interim order (in which one of us, P.B. Swant, J., was a party). It inter alia reads as under:

B "(i) That the petitioners herein shall deposit a sum of Rs. 2.5 crores (Rupees two crores and fifty lacs only) in cash/bank draft with the Delhi Development Authority within one month from today and the petitioners will further deposit similar amount by cash/bank draft by 8th April, 1991. c (ii) That the petitioners shall be permitted to resume the construction of the building in question only after making the first deposit as stated in clause (1) above.

(iii) That if the petitioners fail to deposit the amounts as D aforesaid, the Delhi Development Authority will be free to act in accordance with the impugned order dated 21st December, 1990 of High Court in CWP No. 2371 of 1980.

(iv) That the petitioners shall not induct any person in the building or create any right in favour of any third party. E (v) That the matter be listed for further orders before this Court on 9th April, 1991."

On 4.2.1991, in violation of the agreement and ·in gross contempt of the above order, the Skipper issued advertisement in the leading newspapers seeking to create 3rd party rights. -+- On 25.1.1993, SLP(C) No. 186 of 1991 was dismissed by this Court. By virtue of the above order, the DOA on 10.2.1993 re-entered and took physical possession of the said property, free from all encumbrances; monies paid by the Skipper were forfeited.

Notwithstanding all these, Skipper filed yet another suit on the original side of the High Court of Delhi, being Suit No. 770 of 1993 for the reliefs of:

H (i) permanent injunction restraining the DOA from interfering with

D.D.A. v. SKIPPER CONSTN. 1019 the title and possession of the property; A ,)f (ii) for mandatory injunction directing the DDA to recompute the principal amount and interest payable by Skipper;

(iii) for a declaration that the present calculations are wrong; B (iv) for a declaration that re-entry/re-possession and determination of the rights of Skipper are bad in law and.non-est;

-~ (v) for a declaration that all dues have been paid by skipper to the ODA; and c (vi) a declaration that clause 15 of the Licence Agreement dated 11.8.1987 is non-est andbad in law.

On service of notice, DDA filed _application, I.A. No. 8500 of 1993 in Suit No. 770 of 1993, for rejection of the plaint as all the issues raised D , by Skipper were res judicata and even otherwise the plaint was barred by law. The said application is pending disposal.

On 8.11.93, DOA issued notices for auction of the said property. The 2nd respondent sought to implead itself in the suit and on 1.12.1993 filed an application for stay of auction which was opposed by ·the DDA. E On 9.12.1993, a learned Single Judge of the Delhi High Court al- lowed the auction to proceed with and restrained the ODA from accepting or confirming. the bid at the auction scheduled for 10.12.1993. Aggrieved by this Order DOA filed SLP (C) No. 21000 of 1993 against the interim _..;.,... order of the Delhi High Court. F

I.A. 3 of 1994 is an application for intervention filed on behalf 'Jf DOA. While disposing of SLP (C) No.21000of1993 and the said I.A. No.3 of 1994 we issued notice on 29.11.94 by exercise of our Suo Moto powers directing Tejwant Singh and Mrs. Surinder Kaur to show cause as to why should not be punished for contempt of court for their following acts : G

...... "(a) Instituting suit being Suit No. 770 of 1993 in the Delhi High Court in respect of the same subject matter after this Court confirmed the orders of the said High Court dated 21.12.1990 and 14.1.1991, by its order dated 23.1.1993. H

p. 1020

A (b) Entering into agreements for and handing over possession of and receiving monies and creating interests in the premises in the building under construction in the suit property, viz., the Commercial Tower Plot, Jhandewalan Block C, New Delhi, admeasuring about 2540 sq. mtrs. with constructions thereon which are already made, in defiance of the order of this Court passed on 29th January, !991. Notice returnable on 3rd January, B 1993."

In response to this notice, Tejwant Singh Contemner No. 1, filed an affidavit expressing unconditional and unqualified apology. After so ex- pressing, he sets out several facts to offer an explanation and not a C justification for the steps which were taken by him. According to him, the purpose of filing Suit No. 770 of 1993 in the Delhi High Court was to make payment of reasonable amount. Although the prayers given an impression that there could be no bar in filing of a suit in civil court, he would add that the intention of the deponent was not to indulge in litigation which was already concluded by the Supreme Court. The intention was to see that as far as the quantum of interest was concerned that can be scaled down and the DOA could be persuaded to realise reasonable interest instead of exorbitant interest.

The deponent, on legal advice and in order to protect the property by making the payments in instalments, instructed his counsel to file suit in the High Court of Del!ii for mandatory injunction and declarations. An application under Order 39 Rules 1 and 2 of Civil Procedure Code was also filed in the suit under the bona fide belief that the same could be filed under law in order to ensure that during the pendency of the suit also efforts should continuously be made to settle the matter ·amicably. The F deponent instructed the counsel to make averment that the company is ready and willing to make the payment. The counsel has cat~gorically stated in the application that the company is ready and willing to pay the amount to DOA as demanded by them in instalments.

G The company also wrote a letter dated 10th July, 1993 to all its valued customers apprising them about the dispute with DOA. In the letter also the company made it amply clear that the matter can be resolved amicably and for that purpose funds are required. It was requested that the valued customers shall make the payment of amounts due against them. The bank i \ ( , draft/cash order be sent to the company in the name of DDA. The H company wanted to hand over the drafts to DDA.

D.D.A v. SKIPPER CONSTN. _1021

On this explanation, it is urged that there is no intentional or deliberate flouting of the order dated 29.1.1991 passed by this Court.

The order by 29.1.1991 was passed after the counsel for Delhi Development Authority expressed an apprehension that the answering respondent would sell away or otherwise dispose of the plot to a third party and abscond. The answering respondent-· deponent was personally present in the Court on 29.1.1991. On that date, permission to construct had been with them barely for less than a year (w.e.f. 19.3.1990) from this Court. It was in that context that the injunction was interpreted. He did not create any third party right himself. However, he noticed that in respect of one Khosla, the papers annexed to I.A. No. 3 show that his son had signed some documents evidencing induction of Khosla. He says that there is no other case in relation to which any such impropriety has been committed.

Surinder Kaur, wife of Tejwant Singh, Contemner No. 2, would urge that she has nothing to do with the day to day running of the company nor has she ever acted or represented anywhere in regard thereto. She has not signed any paper or document in relation to the transactions connected with the present proceedings.

An Additional Affidavit was filed on 27.1.1995 by Tejwant Singh, Contemner No. 1. Paragraph 3 of the said additional affidavit states : E "With respect to the act of entering ·into agreements for and handing over possession of and receiving monies and creating interests in the premises in the building under construction in the suit property viz., the Commercial Tower Plot, Jhandewalan, Block E, New Delhi, admeasuring about 2540 sq. meters with construe- F tions thereon which are already made in defiance of the order of Hon'ble Supreme Court passed on 29.1.1991 it is respectfully necessary at this stage to explain the context in which the order dated 29.1.1991 was passed, understood and acted upon by the answering respondent. The answering respondent is explaining the collective contemporaneous understanding of both the parties and G respectfully submitted to this Hon'ble Court that there was no intentional or deliberate flouting of the order. The order of

- 29.1.1991 was passed after the counsel for Delhi Development Authority expressed an apprehension that the answering respon- dent would sell away or otherwise disposed of the plot to a third H

p. 1022

A party and abscond. The answering respondent/deponent was per- . sonally present in the court on 29.1.1991. On that date permission to construct had been with them barely for less than a year (w.e.f. 19.3.1990) from the Hon'ble Delhi High Court. As on 29.1.1991, the construction on the plot has barely commenced and only a part of the basement had been done. No building was in existence. To B preclude the answering respondent from in any manner giving away ph_ysical possession of either the plot or the proposed building (yet to come up) the order of 29.1.1991 was passed.

It is most respectfully submitted that at no time during the c proceedings, was any reference made or intended to prohibit or in any manner fetter the booking of space in the building or collecting money in respect thereof. The fact was that this was the common collective and collided understanding of all the parties including the Delhi Development Authority is evident from the fact that the bookings were done before January, 1991 and after D January, 1991 to the knowledge of everyone without any objection, protest and demur. Indeed in the numerous court proceedings in different courts including the Hon'ble Supreme Court after 1991 not the slightest grievance was made and no contempt petition was ever moved by Delhi Development Authority (till the present last E round of proceedings). Indeed; it is most respectfully submitted that had answering respondent known or remotely contemplated that even booking sought to be fettered, it would have either moved the .Hon'ble Court for clarification or would have immediately desisted." F Paragraph (k) reads thus :

"After 29.1.1991 the company entered into agreement with various persons/parties. The copies of the agreements entered into with them are annexed herewith and are collectively marked as G Annexures 'A' and 'B'. It is pertinent to mention that the company openly advertised in the Newspapers and the next day DDA also advertised in the Newspapers about the Court's order dated 29.1.1991. It is only after seeing both the advertisements the speculative buyers came forward to book the flats and each and every person who entered into the agreements with the company

D.D.A. v. SKIPPER CONSTN. 1023 were fully aware of the pendency of the litigation and hence no third party rights were created." ·

Mr. G. Ramaswamy, learned senior counsel for the contemners submits, before filing Suit No. 770 of 1993, the contemners took legal advice. It was opined that the Civil Writ Petition No. 2371 of 1989 filed before the High Court was not a substitute for suit. The fact that writ petition was dismissed and the SLP thereon was also dismissed will not take away the right to file an independent suit. It was only because of that the contemners filed the suit. There was no deliberate intention to obstruct the course of justice. May be, the contemners were misguided. Whatever might have been the conduct of the contemners they had offered un- C qualified apology in both the affidavits.

Actually, the contemners do not want the learned counsel to advance arguments in defence of their conduct. They are only kneeling before the Court and praying for mercy. D As regards the alleged flouting of the order dated 29.1.1991, three questions would arise :

(1) Whether there is disobedience of the order dated 29.1.91?

(2) If it is answered in the affirmative, whether the disobedience is wilful?

(3) If wilful, what is the consequence?

In his submission, legal advice is a factor to decide whether a disobedience is wilful or not. He is prepared to disclose even the name of the senior counsel who had given the opinion. As a matter of fact, in Hoshiar Singh v. Gurbachan Singh, AIR 1962 SC 1089 this Court found fault with the contemners therein for not disclosing the name of the counsel who gave the legal opinion. It could never have been the intention of the contemners to openly flout the order dated 29.1.1991: By entering into agreements contemners were not creating rights in favour of third parties. G The speculative purchasers being fully aware of the legal proceedings yet chose to purchase the property which agreements, if ultimately, did not fructify into sale, they would be entitled to only refund. Before 29.1.1991 1,000 agreements were entered into and after 29.1.1991 1,750 agreements were entered into. Out of these 1,750 agreements, the agreements in H

p. 1024

A respect of 835 cases were executed while in the case of remaining 915, th.e. 1 agreements have not been executed. This is the factual position. Since the ODA did not take out the contempt application, the contemners were lulled into the belief that what they were doing was right. Further, the exact scope of the order that the contemners should not even enter into contract B was not understood by the contemners properly. Creation of right could only mean, in the context, an obligation to refund.

The notice for contempt has been issued practically after nearly three years. if such a notice had been issued by the High Court he could have pleaded limitation contained under Section 20 of the Contempt of Courts C Act, 1971, as a defence. However, as regards exercise of suo moto powers of this Court under Article 129 of the Constitution of India the contemners \ are not raising any such plea. I

Mr. Arun Jaitley, learned counsel for the DOA would submit that the filing of suit No. 770/93 is nothing but an abuse of process of court. D The matter had reached finality by orders of this Court. Yet to say the suit was filed to protect the rights of the contemners is ingenious. By filing a suit (No. 770 of 1993) and obstructing the course of justice after this Court dismissed SLP (C) No. 186 of 1991, is a clear case of criminal contempt as laid down in Advocate-General, State of Bihar v. M/s. Madhya Pradesh Khair Industries, (1980] 3 SCC 311 at 315. This Court had come down heavily upon persons who indulged in obstructionist methods to defeat or delay justice as laid down in Bloom Dekor v. Subhash Himmatlal Desai, [1994] 6 sec 322 at page 327. In this case, there is a deliberate disobedience of the order dated 29.1.1991. The agreement dated 11th August, 1987 between contemners and ODA clearly postulates that legal possession and ownership shall remain with the licensor until full payment of the bid amount along· with interest payable thereon has been made by the licensee. Therefore, the creation of rights in favour of third parties was never contemplated. and there was no scope for misunderstanding the order dated 29.1.1991. During G the state of CWP No. 2371 of 1989 before the High Court the contemners came forward with a plea that there were 870 buyers of flats but this figure goes on increasing from time to time.

Ultimately, at the stage of Suit No. 770 of 1993 the number of buyers came to 2,700 .. In the agreements entered into after the order dated 29.1.91 (

H there is a clear recital that possession is delivered. If this cannot amount

D.D.A. v. SKIPPER CONSTN. 1025 to creating rights in favour of third parties nothing else would. A We will now proceed to consider the merits of the above contentions.

The contempt proceedings in this case have been initiated under Article 129 of the Constitution of India. The said Article reads as follows: .... ·-" B "Supreme Court to be a court of record. The Supreme Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself." . -..\... This Court in Shri C.K. Daphtary v. Shri O.P. Gupta, [1971) 1 SCR 626 pointed out that it cannot be disputed that in a case of contempt of C Supreme Court, the Court issued notice suo moto.

In this case, as the notice dated 29.11.1994 indicates, it consists of: E (1) Civil Contempt and

(2) Criminal Contempt.

Civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do. or abstain from doing any act is prima facie a civil contempt. Civil Contempt arises where the power of the Court is invoked and exercised to enforce obedience to orders of the Court.

On the contrary, criminal contempts are criminal in nature. It may include outrages on the Judges in open Court, defiant disobedience to the Judges in Court, libels on Judges or Courts or interfering with the courts of justice or any act which tends to prejudice the courts of justice.

Section 2(c) of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act) posits criminal contempt to mean: H

p. 1026

A Publication (a) by words spoken or written ;

(b) or written or by signs;

( c) or by visible representations or otherwise or any matter;

B (d) or any other act whatsoever which (i) (a) scandalizes or tends to scandalize,

(b) or lowers or tends to lower the authority of any court; or

C (ii) prejudices or interferes or tends to interfere with the due course of any judicial proceedings; or

(iii) (a) interferes or tends to interfere with,

(b) or obstructs or tends to obstruct the administration of justice in D any other manner. It can be categorically stated that the power as a court of record to punish for contempt is beyond dispute.

In dealing with the scope of the said Section this Court observed in E Rachapudi Subba Rao v. Advocate General, Andhra Pradesh, [1981] 2 SCC ' . 577 at 583 as follows : ·

"It is noteworthy, that in the categorisation of contempt in three sub-clauses (i) to (iii), only category (ii) refers to 'judicial proceedings'. Scandalising of court in its administrative capacity will also be coYered by sub-clauses (i) and (iii). The phrase "ad- ministration of justice" in sub-clause (iii) is far wider in scope than "course of any judicial proceeding''. The last words "in any other manner" of sub-clause (iii) further extend its ambit and give it a ~- residuary character. Although sub-clauses (i) and (iii) describe three distinct species of "criminal contempt" they are not always mutually exclusive. Interference or tendency to interfere with any

H judicial proceeding or administration or justice is a common ele- ment of sub-clauses (ii) and (iii). This element is not required to be established for a criminal contempt of the kind falling under sub-clause (i)." ..

D.D.A. v. SKIPPER CONSTN. 1027

In a case of criminal contempt, intention or motive is not the A criterion. Of course, they may be considered for a mitigation or aggravation of sentence as the case may be.

From the narration of the above, it is clear that on 25.1.1993, SLP (C) No. 186 of 1991 was dismissed thereby confirming the judgment of the Delhi High Court rendered in CPW No. 2371 of 1989 dated 14.1.1991 B reported in Skipper Constitution Co. (P) Ltd. & Anr. v. D.DA. & Ors., 43(1991) Delhi Law Times 636. Thereafter, Suit No. 770 of 1993 was filed practically for the same relief which formed the subject-matter of the earlier writ petition, CWP No. 2371 of 1989.

After the dismissal of SLP (C) 186of1991, the DDA re-entered and c took physical possession of the property on 10.2.1993, free from all en- cumbrances, forfeiting the monies paid by the contemners. Yet prayer No. 1 in the suit is for injunction restraining the DDA from interfering with title and possession. D Under the terms of the licence deed dated 11th August, 1987 entered into between (the licensor) and the contemners (licensee), it was clearly stipulated at paragraphs 1 and 2 as under :

"1. That the licensee shall have.licence to enter upon the plot described hereinabove for a period of two and half years from the date of execution of this licence only for purposes of starting construction of the building in accordance with the sanctioned buildipg plans.

2. That the licencee shall not be deemed to have any right, title or interest in the said plot nor shall be have any right to grant such a right in favour of any persons. Legal possession and ownership of the said plot shall remain with the licensor until full payment of the bid amount alongwith interest payable thereon has been made by the licensee." G Of course, in this case, possession was handed over to the contem- ners when they had not even cleared the first instalment. That itself had been criticised by us and relegated to an enquiry. But, in this case, after disposal of SLP(C) 186 of 1991 when DDA has taken physical possession of the plot, to file a suit and pray for injunction, as stated above, would H

p. 1028

A clearly constitute criminal contempt. Similarly, the other prayers are aimed at attacking directly or indirectly the adverse finding rendered by the High ·court in CWP No. 2371 of 1989. The High Court, in no uncertain terms, held at paragraph 26 of its judgment reported in 43 (1991) Delhi Law times as under: B "We, therefore, reject all submissions made on behalf of the petitioners had hold that the D.D.A. is entitled to the recovery the entire amount of Rs. 8,12,68,789 as on 1.7.1990 in lump sum in cash or through bank draft. The decision of the Supreme Court in Dunlop (supra) entitles the D.D.A. to insist upon cash payment c and to reject the bank guarantee. Since there is a deliberate breach of the obligations under the Licence Deed and the Agreement dated 11.8.1987 by the petitioners legal consequence, as mentioned in terms 15 of the Licence Deed, spring into action.

Yet, the prayers, above stated, are made in the suit. The only D semblance of defence that is put forth is the suit came to be filed armed with the legal advice. We are afraid such a plea is worthless. As stated above, . in the case of a criminal contempt, the intention or motive is irrelevant. Therefore, even assuming bona fide the contemners thought they could file the .suit because it was "legally opined" that the writ was not a E substitute, the so-called bona fides are totally irrelevant. The filing of the suit No. 770 of 1993 is nothing but a wilful action on the part of the contemners to undermine the dignity of this Court and the majesty of law. The conduct of the contemners tends to bring the authority and administration of law into disrespect or even disregard. It F equally tends to interfere with or prejudice the litigants during the litiga- tion. Abuse of the process of court calculated to hamper the due course ' of judicial proceeding or the orderly administration of justice is a contempt of court. In Advocate General, State of Bihar v. Madhya Pradesh Khair Industries, (1980) 3 SCC 311 at page 315, this Court observed : G ''While we are conscious that every abuse of the process of court may not necessarily amount to contempt of court, abuse of the process of the court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of court. It niay be that certain minor abuses of the process of the court may be suitably dealt with as

D.D.A v. SKIPPER CONSTN. 1029 between the parties, by striking out pleadings under the provisions of Order 6, Rule 16 or in some other manner. But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and effects the interest of the public in the administra- B tion of justi~."

Again as stated by Sir John Donaldson in Attorney General v. Newspaper Publishing Pie, C.J'. Miller Contempt of Court 1989 Clarendon Press, Oxford :

"An action for contempt of court arose : c 'where the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent cannot be expressly avowed or admitted, but can be inferred from all the circumstances including the foreseeability of the consequen- D ces of the conduct'."

At this stage, it is worthwhile for us to quote Lord Hardwicke, L.C., St. James's Evening Post, (1742) 2 Atk. 409 at p. 471:

"There cannot be anything of greater consequence than to keep E the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters."

Thus, we are clearly of the opinion that the contemners are guilty of criminal contempt as defined under Section 2(c) of the Act. F Now we come to other part of contempt as to whether there has been a disobedience of our order dated 29.1.91. That order in clause (iv) specifically stated (it is worthwhile repetition) :

"That the petitioners shall not induct any person in the building G or create any right in favour of any third party."

The contemners had cause the advertisement dated 4.2.91 as follows:

SKIPPER. GROUP OF COMPANIES H

p. 1030

A (ANNOUNCES)

ISSUE of Commercial Flats for retired/Retiring Personnel/Profes- sionals/Self employed & other persons in our

BAU MAKHAN SINGH HOUSE B JHANDEWALAN TOWER, JHANDEWALAN EXTN. at highly concessional rates

It is once in a lifetime opportunity to own a commercial property of your own in "Bau Malchan Singh House"

C A prime project in the middle of high business environment. ·The location of tower is as rare as the offer itself.

(SALIENT FEATURES)

* Ultra modem multi storeyed commercial complex (Shopping D cum office complex)

* Ground to 3rd Floor centrally air conditioned with escalators. ( * Excellent quality of construction.

E * Interest free payment schedule linked with construction.

*Excellent investment returns."

The.object of this is nothing more than to creat~ rights in favour of third parties. It is somewhat surprising that the contemners' ingenuity F grows by the passage of time. As rightly contended by Mr. Arun Jaitley at the time when the writ petition came to be filed before the High Court, as the High Court had noted in the above extract, there was booking for only 870 flats but later it gets increased and today, that figure has swollen to 2,750. As Mr. G. Ramaswamy admits there are agreements entered into even after !he order of 29.1.91 as evidenced by the statement in sub-para- G graph (k) of the additional affidavit extracted above. A curious argument was put forth that by mere entering into agreement no interest is created in the immovable property. Of course, this stems from Section 54 of the Transfer of Property Act. But, does not the agreement holder have a right to get another document, namely, the sale deed? Equally, does he not have H a right to enforce the agreement and seek specific performance thereof? ... • r' D.D.A v. SKIPPER CONSTN. 1031

It. is ·freposterous to suggest that speculative purchasers came forward to purchase the prollerty and their right is only to refund as per the terms of the agreement. For a moment, we are not on the nature of rights of the unintending purchasers. The question in whether the said clause (iv) of the order dated 29.1.91 has been flouted? This is not a case of a stray act but. deliberate repetitive by making hard bargains by dubious methods. It is fallacious to contend that because of legal opinion the contemners thought of entering into such agreements, would not amount to inducting any person in the building or would not amount to creation of any right in favour of any third party. This is an intentional act to cheat the public with an evil design. As on 29.1.1991 the construction on the plot has barely commenced and only a part of the basement had been done. No building was in existence. To preclude the answering respondent from, in any manner, giving away physical possession of either the plot or the· proposed building (yet to come), the order dated 29.1.1991 was passed.

It is submitted that the order passed by this Court dated 29.1.1991 D was an order of restraint against the document not to induct any personnel in the building to create any right in favour of any third party in the meantime. It is submitted that the purpose of this injunction was to ensure that the deponent did not alienate the building in favour of a third person to relieve himself from the liability to make payment of the dues and vanish from the scene. E

The above statement in the affidavit of the contemptner No. 1 in our considered opinion, is a clear attempt to circumvent the order.

It is difficult to appreciate as to how the contemners could contend F -.::.- that they were lulled into the belief that they could enter into the agree- ments as otherwise the ODA would have moved the court by way of contempt proceedings.

It is rather strange that as late as 25.11.92 the followiD.g letters should be written by the contemners: G

"Mrs. Anjana Khosla, 602, Hemkunt Tower, 6, Rajendra Place, New Delhi H

p. 1032

A Respected Madam,

We are pleased to handover you vacant peaceful physical posses- ~- I\.. sion of shops No.3 and 4, measuring super area Jhandewalan . Extension, New Delhi.

B We assure you that the aforesaid shops No.3 and 4 are free from all kinds of sales, encumbrances, disputes, litigations, stays and orders and you are the only rightful owner of aforesaid shops No. 3 and 4.

Thanking you, ~--""' c Your faithfully, For and on behalf of Skipper Construction Co. Pvt. Ltd. sd/- (Director)" (Emphasis supplied) D "Mrs. Anjana Khosla Date 25.11.95 602, Hemkunt Towers, -,.-- 6, Rajendra Place, New Delhi. E Respected Madam,

We are pleased to handover you vacant peaceful physical posses- sion of shops 3 and 4, measuring super area Jhandewalan Exten- sion, New Delhi against total pa}"llent of Rs. 19,12,163 made by F you to us as under : L-- Date Mode of Payment Amount

07.08.87 Cash 1,32,000,00

25.08.87 Cash order No. 04165 G drawn on Punjab National Bank, Rajendra Place, New Delhi being the full ~ and final payment. 17,80,163.00

H (Rupees Nineteen Lac Twelve Thousand

D.D.A v. SKIPPER CONSTN. 1033

One Hundred and Sixty Three) 19J2,163.00 A We assure you that the aforesaid shops No. 3 and 4 are free from all kinds of sales, encumbrances, disputes, litigations, stays and orders and you are the only rightful owner of aforesaid shops No. 3 and 4. B Thanking you,

Yours faithfully, .-"" for and on behalf of Skipper Construction Co. Pvt. Ltd . sci/- c (Director)" (Emphasis supplied)

( However, this is sought to be got over by saying Contemner No. 1 was not responsible but his son did it. This argument has to be stated to be rejected. The plea to support six other similar agreements, with Khosla D family, as if entered into by mistake, cannot hold water.

When our order dated 29.1.91 is clear and unambiguous, to support these agreements on the so-called "collective contemporaneous under- standing of both the parties", is mischievous. Thus, we have no doubt in our mind that there is a wilful disobedience of our order dated 29.1~91. E In considering whether the action of the contemners amounted to contempt of court we take into account the entire course of conduct of the contemners. As our order dated 25.1.95 would disclose, the contemners have indulged in judicial adverturism by raiding one court or the other. Each of such raids is a clear abuse of process of court calculated to F obstruct the due course of judicial proceeding and the administration of justice. Thus, we conclude that the contemners are guilty of contempt of court. No doubt, the contemners have tendered apology. This apology is coming forth after sensing that the adventures have turned out to be misadventures, realising that the contemners have ended up in a cul-de-sac. G An apology is not a weapon of defence forged to purge the guilt of the offences nor is it intended to operate as a universal panacea. It is intended to be eVidence of real contritenses, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire< to make such reparation as lies in the wrong-doer's power." We do not find the apology to be so in this case. The co~duct of contemners is highly reprehensive. The question H

p. 1034

A now is what sentence we should impose on the contemners. Here, it is necessary to bear in mind that the second respondent is the wife of the first respondent. She does not seem t_o have played any active role in all these transaction and events. As an Indian wife, dutiful and obedient, she seems to have only followed the dictates and desires of her husband. In the process she has done no more than lending her name both as a Director B to the Skipper as well as to the various acts done by him in the name of the company. It will be unrealistic to ignore this fact against our social background. We must therefore take a pragmatic view of the matter and distinguish her case from that of her husband as far as the punishment to be imposed on them is concerned. Such a distinction will in no way .;__,. C minimise the gravity of the contempt that she has committed. We, therefore, invoke our power under Article 129 read with Article 142 of the Constitution and order as follows :

We sentence contemner-respondent No.1, Tejwant Singh to undergo simple imprisonment for six month and to pay a fine of D Rs. 50,000 (Rupees fifty thousand only). We further sentence· contemner-respondent No.2, Surinder Kaur to undergo simple ,- imprisonment for a period of one month and to pay a fine of Rs. 50,000 (Rupees fifty thousand only). In default of payment of fine, the eontemners shall further undergo simple imprisonment for one E month. The payment of fine shall be made within one month from to-day.

All the properties and the bank accounts standing in the names of the contemners and the Directors of Mis. Skippe( Construction Co. (Pvt.) Ltd. and their wives, sons and unmarried daughters will stand attached. F Before parting with this case, we may add :

Judiciary is the bed rock and hand-maid of orderly life and civilised society. If the people would lose faith in justice imparted by the highest court of the land, woe be to orderly life. The fragment of civilised society G would get broken up and crumble down.

At the r_equest of Shri G. Ramaswamy, the learned counsel appearing ~ for the conteniners, we defer the sentence of imprisonment imposed on :.'~ bo~h the contemners subject to the conditions and till the time _stated H below:

D.D.A v. SKIPPER CONSTN. 1035 .

(1) The contemners shall furnish bank guarantee in favour of the A Registrar General of this Court in the amount of Rs. 11 crores (Rupees eleven crores only) on or before 31st March, 1995. The guarantee will be of a nationalised bank or any foreign bank operating in India. The bank guarantee will be given for a period of one year from the date of furnishing the bank guarantee. B (2) The contemners shall deposit the entire amount of Rs. 11 crores by a Bank Draft in the Registry of this Court on or before 30th November,

1995. If they fail to do so, the bank guarantee will bec~me encashable and will be encashed forthwith after 30th November, 1995.

(3) If the contemners fail to give the bank guarantee by 31st March, c 1995 as aforesaid, the sentence of imprisonment will become enforceable at once.

(4) No application for extension of time either to furnish the bank guarantee or to make the payment as aforesaid, will be entertained by this D Court.

(5) The contemners shall not leave the country without the express permission of this Court.

(6) List of properties given by the contemners is taken on record. E The contemners will also file a list of properties held by their sons and unmarried daughters within one week from today.

(7) If and ·when any property that is attached under this Order is sought to be alienated or encumbered to raise money to pay the liability F of Rs.11 crores stated above, the contemners will be at liberty to approach the Court for permission to do so.

(8) The attachment of the properties iand the bank a~unts shall stand raised on the contemners furnishing thel bank guarantee as aforesaid. . ! G (9) The order with regard to the disb~sal of the aI\1.0unt deposited will be passed after the amounts are deposit~d as aforesaid.

The Contempt petition is ordered in the above terms.

R.P. Petition disposed of. H

A THE SECRETARY, MINISTRY OF INFORMATION AND ' . BROADCASTING, GOVERNMENT OF INDIA AND ORS. v. CRICKET ASSOCIATION OF BENGAL AND ORS. AND VICE VERSA B FEBRUARY 9, 1995

[P.B. SAWANT, S. MOHAN AND B.P. JEEVAN REDDY, JJ.)

C Constitution of India'-Articles 19(1)(a), 19(2)--Freedom of speech and expression-Right to telecast live events over airwaves through satellite uplink facility-Whether part of freedom of speeclt-Held, per curiam; yes-Held fur- ther, as airwaves are public property the n'ght is subject to in-built restrictions.

Constitution of lnditr-Articles 19(1) (a), 19(2)-Whether the right to telecast events· includes right to agency of one's choice-Right to establish private telecasting facilities-Held, (Per Majority) the organisers had a right to sell the telecasting rights to any agen~eld, (Per minority) public broadcasting is implicit in the right, private broadcasting is noHn the absence of a licence, the organisers· had no right to telecast by an agency of their choice.

Constitution of Inditr-Articles 19(1) (a), 19(2), 14-Telegraph Act, 1885 S.4(1)-Reasonable restrictions on the right-Organisers of event selling telecasting rights to foreign agency-Organisers not obtaining licence for. telecast but paying charges for uplinking facility-No demand made for utilising frequencies controlled by government agencies-Government agen- cies refusing licence or permission to telecast-Whether refusal of licence to telecast malafide and arbitrary-Held (per Majority) Doordarshan could not reJu,se to telecast particularly since there was no lack of frequency; refusal could be only on grounds specified in· Article 19 (2)--Per minority-The G objection to a foreign agency telecasting even without a licence was not .arbitrary or malafide.

Constitution of India Article 19(1) (a), 19(2)-Telecastingfrom Indian soil- Whether monopoly in favour of Doordarshan violative of the freedom of speeclt-Held, (per minority), Monopoly unacceptabl~leld (per curiam) H control to be in hands of an autonomous public C01JJOration. 1036

_( MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1037

Constitution of Indi~Article 19(1) (a}-Telecasting of events by or- A ganisers through foreign agency-Whether the right is in fact a commercial ,Ir right traceable to Article 19 (1) (g)-He/d (Per Majority) organisers are not _, seeking to enforce a commercial right-Held, (per minority) the right is sought really by the foreign agency and therefore question of violation of such right under article 19 (l)(a) does not arise. B The Cricket Association of Bengal (CAB) organised an international cricket tournament in which India and four other countries participated. The CAB wrote to Doordarsban (DD), the official television network, in ~ -I-. March 1993 inviting an offer for the amount they would be willing to pay CAB for live television coverage of the cricket matches in either of the c alternatives : where Doordarshan would create the host broadcaster signal and undertake live telecast or where any other party would create the host broadcaster signal and DD would purchase the rights to telecast in India. CAB made it clear that in either situation CAB would retain the foreign 1V rights. By a subsequent letter CAB informed DD that they were D agreeable to DD creating the host broadcaster signal and granting to it the exclusive right for India without Star 1V getting it and that the charges for the same would be US$ 800,000. Doordarshan replied quoting a figure of Rs. 1 crore. CAB decided to sell the worldwide 1V rights to The Trans World International (1WI) a foreign 1V network. On October 18, 1993 CAB informed Doordarshan that it was expecting an offer of at least Rs. E 2 crores from DD and that they had received much higher offers from agencies abroad including 1WI. However, it offered to DD the right to telecast some of the matches directly and jointly With 1WI on condition that DD would allow advertising time which CAB would at liberty to sell to advertisers. DD rejected this offer stating that they would never agree to any joint production with 1WI. CAB then offered to sell to Doordarshan the rights of telecast on payment of access fees. DD responded stating that CAB had to pay Rs. S lakhs per match as technical charges and that DD would have exclusive rights for the signals generated. With no agreement materialising, Videsh Sanchar Nigam Limited (VSNL) withdrew from 1WI the uplink facility to the INTELSAT Satellite. The permission to import equipment for the telecast was also withdrawn. J.:- CAB then approached the Calcutta High Court with a writ Petition seeking a mandamus to the Government agencies and DD to ensure uninterrupted telecast of the tournament. A Single Judge made an interim H

p. 1038

A order directing the respondents to provide all assistance and cooperation to the petitioners or their agency for.uninterruptedtelecast and restrai~ed the respondents from tampering with, removing, seizing or dealing with any equipment relating to the telecast. The equipment seized .by the Cus- \. toms Authorities were directed to be released.

B In the appeal by the government agencies, a Division Bench of the High Court directed the CAB to pay DD immediately a sum of Rs. 5 lakhs to enable DD' to immediately telecast the matches. It directed the Secretary, Ministry of Telecommunication, Government of India, to consider and grant provisional permission or licence under Telegraph Act to CAB or C 1WI within three days from the date of the order. The government agencies appealed. to this Hon'ble Court. A Writ Petition was also filed by CAB. By the tiine matters was finally heard, the matChes has been telecast pursuant to and in accordance with the interim directions issued by this Court. D On beh~df of the CAB it was contended that there was implied permission under Telegraph Act granted for uplinking facilities since VSNL had already accepted the fees for the purpose; the action of DD in refusing the telecast of the matches was malafide and authoritarian; the E organiser in exercise of its freedom of speech was free to have an agency of its choice for telecasting the matches - DD did not have and could not claim a monopoly in this regard; if an application was made under Section -4 of the Telegraph Act the appropriate authority was bound to grant the same unless it could justify refusal of any of the condition under Article 19(2) of the Constitution. F The Union of India submitted that there was no licence granted to CAB and there was no quesiion of any implied permission; in the absence of a licence VSNL could not have granted any uplinking facility; the Government of India had taken a policy decision that satellite uplinking from Indian soil should be in the exclusive competence of the Government G which in turn could market the rights to other parties; in as much as by telecasting the event by selling its rights, CAB was asserting a right relatable to commerce under Article 19(1)(g) and not under Article 19(l)(a); and that public interest demanded that foreign agencies should not be freely permitted to set up telecasting facilities in India and that H state monopoly was a· device to ensure use of the resource for public good.

MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1039

1.2. The right to communicate includes right to communicate through any media that is available whether print or electronic or audio· visual. The freedom of speech and expreS9ion includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without inter- ference to as large a population in the country as well as abroad as is possible to reach. This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) D of the Constitution.

Romesh Thapar v. State of Madras, [1950) SCR 594; Brij Bhushan v. State of Delhi, [1950) SCR 605; Hamdard Dawakhana (Wakf) Lal Kuan, Delhi v. Union of India, (1960) 2 SCR 671; Sakal Papers (P) Ltd. v. Union E of India, (962) 3 SCR 842; Bennett Coleman and Co. v. Union of India, (1972} 2 ~CC 788; Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, [1985) 1 SCC 641; Odyssey Communications Pvt. Ltd. v. Lok- vidayan Sanghatana, [1988) 3 SCC 410; S. Rangarajan v. P. Jagjivan Ram and Ors., [1989) 2 SCC 574; Printers (Mysore) Ltd. v. Asst. Commercial Tax Officer, [1994) 2 SCC 434 and Life Insurance Corporation of India v. F Professor Manubhai D. Shah~ (1992) 3 SCC 637, referred to. .

Ex parte Jackson (96) US 727; Lovell v. City of Griffin, (303) US 444; Mutual Film Corporation v. Industrial Commission, 236," US 230 1915; Burstyn v. Wilson, (343) US 495; Schenck v. United Stales, (249) US 47; G Temiiniello v. Chicago, (93) L.ed. 1131: 337 US 1 (1949) and National Broadcasting Company v. United States ofAmerica, 319 US 190-238: 87 L.ed. (1344), referred to.

1.3 There is a built-in limitati(!n on the use of electronic media because the airwaves are a public property and are controlled by the H

1040 SUPREME COURT REPORTS [1995] 1 s.c.R:

A Government or are not available on account of the scarcity, costs and · competition. .

Red Lion Broadcasting Co. v. Federal Communications Commission, 395 US 367: 23 L. ed. 2d 371; Columbia Brpadcasting System v. Democratic · National Committee, 412 US 94: 36 L.Ed. td 772; Federal Communications B Commission v. WNCN Listeners Guild 450 US 582: 67 L.Ed. 2d 521; City of Los Angeles & Depaltment of Water and Power v. Prefe"ed Communication Inc., 476 US 488: 90 L.ed. 2d 480; FCC v. Pacifica Foundation, 438 US 726 and Third Television Case, 57 B Verf GE 295, (1981), referred to.

Civil Liberties & Human Rights authored by David Feldman; Eric C Barendt, Broadcasting Law, 1993 Edn.; Lee Bol#nger, Freedom of the Press and Public Access; Rationale of Public Regulation of Media and Df!mpcracy. and the Mass Media, (C~1_11bridge, 1990), referred to.

1.4 The rest:rictions which the electronic media suffers in addition to those suffered by the print media, are that (i) the airwaves are a public property and they have to be used for the benefit of the society at large, (ii) the frequencies are limited and (iii) media is subject to pre-censorship. The other limitation, viz., the reasonable restrictions imposed by law made for the purposes mentioned in Article 19 (2) is common to all. the media.

E 1.5. If the right to freedom of speech and expression includes the 1 ri~t to disseminate information to· as wide a section of the population as is po.ssible, the access which enables the right to be so exercised is also an integral part of the said right.

2.1. To have a representative central agency to ensu~ the viewers' . F right to be informed adequately and truthfully is a part of the right of the viewers under Article 19(1)(a).

2.2. Since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the privaJe agencies. '

2.3 The Central Government shall take immediate steps to establish an independent autonomous public authority representative of all sections and interests in the society to control and regulate the use of the airwaves.

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL 1041

2.4 The contention that on that account the restrictions to be im- A posed on the right under Article 19(1)(a) should be in addition to those /'T permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. B

3.1 What CAB was claiming was Got a commercial right to exploit the event.

3.2 when a telecaster desires to telecast a sporting event, the free speech element is not absent from his right. The degree of the element will c depend upon the character of the telecaster who claims the right.

3.3 If while pursuing their objective of popularising the sports by selecting the best available means sports organisers incidentally earn some revenue, that will not convert them either into commercial organisations or the right claimed by them to explore the said means, into a commercial right or interest.

4.1. Doordarshan could not refuse to telecast the event except for reasons of non-availability of frequencies or for grounds available under Article 19(2) or for considerations of public interest involved in the use of the frequencies as public property.

4.2. The fact that Doordarshan was prepared to telecast the events only on its terms shows that the frequency was available. Hence, scarcity of frequencies or public interest cannot be pressed as grounds for refusing to telecast. F

4.3. The organisers of the events had every right to create terrestrial signals of their event and to sell it to whomsoever they thought best so long as such creation of the signal and the sale thereof was not violative of any law made under Article 19(2) and was. not an abuse o~ t~e frequencies G which are a public property.

5. The decision to form the nodal m~istry to coordinate the activities ~ of all the concerned ministries and· departments was unexceptionable. But the time of taking the decision and its background was not without its signiticance. H~wever, there was no adequate material on record to estab- H

.. 1042 SUPREME COURT REPORTS "(1995) 1 S.C.R.

A lish a nexus between the MIB/DD and the aforesaid actions of the other authorities.

6. The order of the High Court was emi(!ently in the interests of the viewers whatever its merits on the other aspects of the matter. The High Court would apportion between the CAB and the DD the revenues B generated by the event after hearing the parties. Per Jeevan Reddy, J. (Broadly agreeing with the majority view) :

1.1 Public broadcasting is implicit in Article 19(l)(a), private broad- casting is not. c 1.2 The free speech right guaranteed to every citizen of this country does· not encompass the right to use .these airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of the body of citizens inasmuch as only the privileged few - powerful D economic, commercial and political interests • would come to dominate the media.

1.3 The right to establish the operate a private 1V station does not flow from Article 19(l)(a); such a right is not implicit in it. The question whether such right should be given to the citizens of lhis country is a E matter of policy for the Parliament.

Life Insurance Corporation of India v. Manubhai D. Shah, [1992) 3 SCC 637 and Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, [1988) 3 sec 410, referred to.

F Burstyn v. Wilson 343 US 495; Los Angeles v. Prefe"ed Communica- tions, 476 U.S. 488 = 99 L.ed. 2d 480; Columbia Broadcasting System v. Democratic National Committee, 412 US 94 : 36 L.Ed. 2d 371; The Third TelevisiOn Case, 57 B Verf GE 295 (1981); Decision 59/60 (1960) Giurisprudenza Constituzionale 759; Decision 225/74 (1974) Giurisprudenza G Constitutuzionale, 1975; Decision 202176 (1976) Giurizprudenza Con- stituzionale 1276; Informationsverein Lentia v. Austria • 15 Human Rights Law Journal 31 ·judgment dated 24th November, 1993; N.B.C. v. U.S. (319 US 190 (1943); Red Lion Broadcasting Company v. F.C.C. 395 US 367: 23£ Ed. 2d. 37); F.C.C. v. National Citizens Committee for Broadcasting, 436 US 775; Miami Herald Publishing Company v. Tomi/lo, (1974-418 U.S.241); New H York Times v. United States, [1971) 403 U.S. 713; United States v. Nixon,

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL 1043

(1974) 418 U.S. 683; Bowman v. Secular Society Ltd., (1917) A.C. 406; A Castells v. Spain, (14 EHRR 445) and Mutual Film Corp. v. Industrial Com. ,_,1--r of Ohio, 236 US 230 : 59 L.ed. 442, referred to.

2.1 Monopoly of the broadcasting media, whether by Government or by an individual, body or organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech B and expression as is permitted by clause (6) of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g).

2.2. The broadcasting media should be under the control of the -\.... public as distinct from Government. This is the command implicit in Article 19(1)(a). It should be operated by a public statutory corporation c whose composition must be such as to ensure its impartiality in political, economic and social matters and on all other public issues. It must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It' they must provide equal access to all the citizens and groups to avail of the medium. D

..._.,.__ 2.3. Airwaves being public property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. E

3. The right to telecast the matches, including the right to import, instal and operate the requisite equipment, was really sought by the foreign agencies and not' by the petitioners~ Hence, the question of violation of their right under Article 19(1) (a) resulting from refusal of licence/permission to such foreign agencies did not arise. F

4.1 The charge of malafides or for that matter, the charge of arbitrary or authoritarian conduct levelled against the governmental al_lthorities is unacceptable.

4.2 Neither the CAB nor its foreign agent had applied for or obtained G the licence/permission under Section 4(1). The permissions granted by ~ other departments were no substitute for the licence under the proviso to Section 4(1).

4.3 In the absence of such a licence, the CAB had no right in law to H

p. 1044

A have its matches telecast by an agency of its choice. 4.4. The objection to a foreign agency coming in and telecasting such events without even obtaining a licence under the proviso to Secti"on ;~(1) \ of the Telegraph Act was ma/afide or arbitrary.

B 4.5 There was nothing to show that seizure of imported equipment by customs authorities was at the instance of Doordarshan.

CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal Nos. 1429-30of1995. ..,..i-- c From the Judgment and Order dated' 12.11.93 of the Calcutta High ,Court in F.MA.T. Nil of 1993.

WITH

Writ Petition (C) No. 836 of 1993. D (Under Article 32 of the Constitution of India.) -+--- Dipankar Gupta, Harish N. Salve, Aron Jaitley, Kapil Sibal, Rajiv Mehta, Kailash Vasdev, Ms. Meen~hi Grover, U.N. Banerjee, B.V. Desai, M. Sharma, P. Malik, Ms. Radha Rangaswamy and Naveen Chawla E for the appearing parties.