Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14
CASE NO.:
Contempt Petition (civil) 83 of 2005
PETITIONER:
T. N. Godavarman Thirumulpad Through the Amicus Curiae
RESPONDENT:
Ashok Khot and Anr.
DATE OF JUDGMENT: 10/05/2006
BENCH:
CJI, ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
CONTEMPT PETITION (C) NO. 83 of 2005
IN
WRIT PETITION (C) NO. 202 of 1995
ARIJIT PASAYAT, J.
The "King is under no man, but under God and the law"-
was the reply of the Chief Justice of England, Sir Edward Coke
when James-I once declared "Then I am to be under the law. It
is treason to affirm it"-so wrote Henry Bracton who was a
Judge of the King’s Bench.
The words of Bracton in his treatise in Latin "quod Rex
non debat esse sub homine, sed sub Deo et Lege" (That the
King should not be under man, but under God and the law)
were quoted time and time again when the Stuart Kings
claimed to rule by divine right. We would like to quote and
requote those words of Sir Edward Coke even at the threshold.
In our democratic polity under the Constitution based on
the concept of ’Rule of law’ which we have adopted and given
to ourselves and which serves as an aorta in the anatomy of
our democratic system. THE LAW IS SUPREME.
Everyone whether individually or collectively is
unquestionably under the supremacy of law. Whoever he may
be, however high he is, he is under the law. No matter how
powerful he is and how rich he may be.
Disobedience of this Court’s order strikes at the very root
of the rule of law on which the judicial system rests. The rule
of law is the foundation of a democratic society. Judiciary is
the guardian of the rule of law. Hence, it is not only the third
pillar but also the central pillar of the democratic State. If the
judiciary is to perform its duties and functions effectively and
remain true to the spirit with which they are sacredly
entrusted to it, the dignity and authority of the Courts have to
be respected and protected at all costs. Otherwise, the very
corner stone of our constitutional scheme will give way and
with it will disappear the rule of law and the civilized life in the
society. That is why it is imperative and invariable that Court’s
orders are to be followed and complied with.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14
The case at hand involves two contemnors. Shri Ashok
Khot (hereinafter described as ’contemnor No.1’) was the
Principal Secretary, Department of Forest, Government of
Maharashtra and Shri Swarup Singh Naik (hereinafter
described as ’contemnor No.2’) was the Minister, Incharge of
Department of Forest at the relevant point of time.
On the basis of submissions made by learned Amicus
Curiae, proceedings were initiated against them. It was
highlighted by learned Amicus Curiae that the respondents
have acted in brazen defiance of the orders of this Court and
their conduct constitutes the contempt by way of (a) wilful dis-
obedience of directions issued by this Court, (b) the manner
in which contemnors have conducted themselves clearly tends
to lower the authority of this Court and obstructs the
administration of justice (c) as their conduct falls both under
the definition of Civil contempt, as well as seeing dimensions
of the matters, under criminal contempt.
It was pointed out by learned Amicus Curiae that this
Court by order dated 4.3.1997 directed the closure of all un-
licensed saw mills, veneer and plywood industries. Further by
order dated 30.10.2002 it was directed that no State
Government would permit the opening of any saw mill, veneer
and plywood industry without the prior permission of the
Central Empowered Committee (in short the ’CEC’). The State
of Maharashtra by I.A.414 sought permission to permit the re-
opening of saw mills/veneer and plywood industries inter alia
dependent on imported timber; which permission was declined
by this Court’s order dated 14th July, 2003. On enquiries made
by CEC as well as learned Amicus Curiae the State
Government stated that the orders of this Court will be
complied with and six mills in question i.e. (i) M/s Oriental
Veneer Products Ltd. (ii) M/s Konark Plywood Industries Ltd.
(iii) M/s Great Western Plywood Industries Ltd. (iv) M/s
Pagoda Woods Pvt. Ltd. (v) M/s Woodmac (Bombay) Pvt. Ltd.
(vi) Luckywood Products Pvt. Ltd. were actually closed.
But by orders dated 7th April, 2004 and 29th May, 2004
the State of Maharashtra granted permission to aforesaid six
units to operate in the State. Such permissions were granted
on the basis of decisions taken by the contemnors 1 and 2
deliberately and consciously though fully aware of the orders
of this Court with the sole motive of favouring those units and
to evade enforcement of the orders of this Court. It was
pointed out that as a result of such orders, the units have
been permitted to operate in direct contravention of the orders
of this Court.
Initially, responses were filed by contemnors 1 and 2 but
on consideration thereof this Court was of the view that in fact
contempt of this Court’s order has been committed and,
therefore, by order dated 3.2.2006 charges were framed as
follows:
"Whereas this Court by its order dated
4.3.1997 directed the closure of all un-licensed
saws mills, veneer and plywood industries, and
further by its order of 30th October, 2002,
directed that no State Government would
permit the opening of any saw mills, veneer
and plywood industries, without the prior
permission of the Central Empowered
Committee and whereas the State of
Maharashtra, through its Interlocutory
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14
Application NO.414 sought permission to
permit the reopening of the saw mills/veneer
and plywood industries inter alia dependent on
imported timber, which permission was
declined by rejection of their application by
this Court on 14th July, 2003.
Whereas in response to enquiries made
by the Central Powered Committee as well as
the Amicus Curiae, the State Government
assured that the orders of this Court will be
complied with and six mills in question i.e. (i)
M/s Oriental Veneer Products Ltd. (ii) M/s
Konark Plywood Industries Ltd. (iii) M/s Great
Western Plywood Industries Ltd. (iv) M/s
Pagoda Woods Pvt. Ltd. (v) M/s Woodmac
(Bombay) Pvt. Ltd. (vi) Luckywood Products
Pvt. Ltd. were actually closed.
AND whereas vide orders dated 7th April,
2004 and 29th May, 2004 the State of
Maharashtra granted permission to aforesaid
six units to operate in the State.
AND whereas from the affidavit filed and
the records produced it is apparent that these
permissions were granted on the basis of
decision taken by Respondent Nos. 1 and 2
deliberately and consciously and after being
aware of the orders of the Court with the sole
motive to favour these units and to evade
enforcement of the orders of this Court.
AND whereas as the result of these orders
the mills have been permitted to operate in
direct contravention of the orders of this
Court.
AND whereas a hand-written Marathi
note has been added in the original record on
Ist February, 2005 by respondent NO.1 which
amounts to interpolation of the record.
AND whereas the minutes, Annexure-D
from pages 47 to 57 filed by respondent No.2
show addition in the manner noticed in the
order dated 27th January, 2006.
AND whereas by their conduct
respondent Nos. 1 and 2 have not only violated
the direction to the State to ensure that
unlicensed saw mills/veneer and plywood
industries are not allowed to operate, but have
also attempted to lower the authority of the
Court by granting permission which act clearly
was in derogation of the authority exercised by
the Court in exercise of its constitutional
powers over the officers and employees of the
State Government.
AND whereas respondents 1 and 2 have
interpolated the record in the manner above
noted.
AND whereas by virtue of the aforesaid
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14
acts, the respondents are guilty of civil and/or
criminal contempt of Court by having wilfully
dis-obeyed the orders of the Court as well as
having acted in a manner that attempt to lower
the authority of this Court as well as interferes
in the administration of justice by preventing
enforcement of directions issued by the Court
which constitutes a criminal contempt."
Affidavits in relation to the charges have been filed by
contemnors. Their stand in essence is as follows:
COTEMNOR NO.1:
He has stated that the opinion given by him was based
on the decision taken by the High Powered Committee (in
short ’H.P.C.’) on 28.1.2004. He has further stated that if he
has made a mistake in his bona fide interpretation of the
orders of this Court there was no mens rea involved and he
tenders his unconditional apology. He has stated that there is
no question of any disobedience, much less wilful
disobedience of the orders passed by this Court so as to
amount the contempt of this Court’s order. It is stated that the
State Government was of the opinion that units running
exclusively on slicer or peeler machines do not require a
licence and, therefore, cannot be termed as un-licensed units
even after the order of this Court dated 4.3.1997. The units in
question were not closed. Subsequently, the Nagpur Bench of
the Bombay High Court by order dated 10th August, 1998
passed in Writ petition 3795 of 1995 (known as ’Kitply case’)
directed that even the slicing and peeling machines being run
along with licensed saw mills would require separate license.
As a result of this order, the said units were also closed.
Several writ petitions were filed by the aggrieved units and the
State decided to take a policy decision in the matter.
Consequently, on 15.5.2001 the State Government constituted
H.P.C. to take a policy decision in respect of such peeler and
slicer units. The units in question applied to the State
Government for permission to re-commence their operation.
Their stand was that they were not using any saw mills but
only peeler and slicer machines and were operating on the
basis of "No Objection Certificates" issued by the Forest
Department and the licenses issued by the Industries
Department. On receipt of the representation, a meeting was
held by contemnor No.2 which was attended by Principal
Conservator of Forest, the Conservator of Forest, the Deputy
Secretary of Forest Department, one Shri Tripathi whose role
in the present matter is of considerable importance.
Contemnor No.1 was not present in the meeting but his stand
was that the contemnor No.2 who is the Minister gave
direction as per the discussion to submit a note for his order.
The Deputy Secretary of the Department Sri Tripathi in his
note clearly stated that the requests should not be accepted
and express orders from this Court and the Bombay High
Court were necessary for the purpose. Contemnor No.1
expressed otherwise and in view of the alleged decision of the
H.P.C. and the stand of the State Government before the
Courts suggested that the units should be permitted to
operate. The contemnor No.2 being the final authority i.e. the
Minister-in-charge of the Forest Department accepted his
stand. It was further pointed out that the units were to operate
exclusively using imported wood. Therefore, in essence, his
stand is that there is no wilful dis-regard of this Court’s orders
and no contempt was committed. So far as the charge relating
to interpolation of records is concerned, he has stated that he
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14
has not interpolated any records of this Court. On the
contrary, the handwritten note was made by him on 1.2.2005
during the course of hearing before CEC. By a bona fide
mistake, the note was made in the official file and not on a
separate piece of paper. He, therefore, has stated that there
was no intention of manipulation or interpolation of the official
records.
CONTEMNOR NO.2
The stand of contemnor No.2 is that he has acted bona
fide without any mens rea. He has also tendered his
unconditional apology. It is pointed out that he is qualified
only upto secondary school level and belongs to Scheduled
Tribe category and had represented the Nandurbar Lok Sabha
Constituency as a Member of Parliament, was a member of the
Legislative Council nominated by the Government of
Maharashtra as well as a member of the State Assembly from
Nawapur Assembly. He is presently one of the senior-most
members of the Maharashtra Legislative Assembly and a
member of the Cabinet being Minister of Transport, Ports, etc.
He was the Minister of Forest and Environment between
19.10.1999 and 31.10.2004. The expert H.P.C. was
constituted. The view expressed by it was at variance with the
view of the State Government. Though he was not aware of the
details of the orders he was conscious of the fact that giving
the growing technicalities of the law involved in the day to day
functioning of the Ministry in contrast to his background and
the level of his educational qualification, it was not feasible for
him to arrive at an appropriate decision unilaterally without
being assisted by responsible officers of the Government.
Therefore, in line what was decided by the H.P.C. which was
constituted for a specific purpose and comprised of top
bureaucrats and other important limbs of the Government and
public personalities, the decisions arrived at by them would be
entitled to great respect. The H.P.C. took the decision on
28.1.2004, and taking note of various relevant factors
indicated in the representations made on or about 25.3.2004
passed the order. It is now alleged that the same amounted to
violation of this Court’s orders. He had concurred with the
views expressed by contemnor No.1 and it was also clarified
that the unitholders have closed the units after the decisions
rendered by this Court as well as by the Bombay High Court,
Nagpur Bench. He in his capacity as Minister-in-Charge
endorsed the view of the senior most bureaucrat/officer of the
Department of Forest and Revenue, Government of
Maharashtra and accepted the proposal which was forwarded
to him. There is no mens rea or personal element in the
alleged contumacy. So far as the allegations that he had
deliberately given false explanation about the view of H.P.C., it
was submitted that due to wrong typing of the pages and the
preparation of draft by learned counsel the mistake has
occurred and there is deliberateness involved.
There are several factors which completely nullify the
alleged claim of bona fides made by the contemnors. Firstly,
the note made by the Deputy Secretary, Shri Tripathi is of
great relevance in showing as to how the stand taken by
contemnor No.1 is clearly false and the claim of acting bona
fide is falsified. The note reads as follows:
"As directed by Pr. Secretary (F) on 2.4.2004
1. In the said filed, four applications, which
have been submitted by the Oriental Veneer
products Ltd. Konark Plywood Product Ltd,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14
Pagoda Woods Private Ltd, Great Western
Wood Private Ltd, are being dealt with. The
applicants have requested to grant the
licences for running their units.
2. The history behind these cases are as:
a. In the State veneer and plywood
units can be placed into three
categories, first, units which are
running along with saw mills,
licences, second which are running
exclusive, by using slicer and peeler
machines and third which are
running along with unlicensed saw
mills.
b. The issue of veneer and plywood
units came first time in the matter
of T.N. Godaverman v. Union of
India (W.P. No.171/96, 202/95)
before Supreme Court. Hon’ble
Supreme Court directed to the State
Government to file affidavit before
the Court, regarding the status of
saw mills, veneer & plywood units in
the State. The affidavit was filed by
State Government before the
Supreme Court treating veneer &
plywood industries units as
composite units along with saw
mills. According to the affidavit,
which implied, that veneer &
plywood industries if running along
with license saw mills may be
treated as licensed unit and if
running, without unlicensed saw
mills may be treated as unlicensed.
On 4.3.1997 Hon’ble Supreme Court
passed order as under:
"All unlicensed saw mills,
veneer and plywood industries
in the State of Maharashtra
and State of U.P. are to be
closed forthwith and the State
Government would not remove
or relax the condition for grant
of permission/licence for the
opening of any such saw mills,
veneer and plywood industries
and it shall also not grant any
fresh permission/licence for
this purpose.
3. The State Government approached the apex
Court by way of filing I.A.No.414 of January
99 with request to allow State Government
to grant licences to existing unlicensed ply
wood and veneer industries which require
saw milling activities but have industrial
licences and also allow the State
Government to issue licences to saw mill
and veneer/plywood industries which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14
intend to operate on imported timber from
outside the country. The matter came
before apex court for final hearing on
14.7.2003. The Hon’ble Supreme Court
rejected the request made by State
Government and disposed off the
I.A.NO.414 along with other I.As.
4. After the order of Hon’ble Supreme Court on
4.3.1997, the unlicensed saw mills in these
plywood/veneer industries were closed, no
other machinery in these industries was
closed because of the interpretation of the
Bombay Forest Rule 1942 was that only
sawing machine i.e. band saw/horizontal
saw/circular saw need licence. However, in
the W.P. No.3795/95, Kit Ply case Hon’ble
Bombay High Court Bench at Nagpur on
10.8.1998 made it clear that petitioner (i.e.
Kitply’s owner) do not entitle to operate any
machinery or saw mills for cutting, slicing
and/or peeling the timber without licence,
as contemplated under rule 23(i)(ii) of
Bombay Transit Forest Product Rule, 1960
(Vidarbh region, Saurashtra & Kutch
areas).
5. After this judgement Mumbai High Court
Bench Nagpur in Kitply’s case the Forest
Department issued instructions to the field
officer to close the slicing and peeling
machinery. This resulted in closure of wood
conversion machinery i.e. slicer & peelers
machine in the industries. Therefore, these
industries filed W.Ps. in the Mumbai High
Court Nagpur Bench. The gist of their main
argument was as follows:
"Forest department never
demanded licence to run veneer &
plywood machinery therefore they
were not getting licence from
Forest Department to operate these
units. Hence at this stage they
cannot be compelled for licence to
operate these units."
The Badar (Special Counsel Forest)
admitted before the Court that Government is
taking policy decision in this case.
6. This issue came before the High
Powered Committee comprised under C.S. on
2.6.2001 and 13.6.2001. In the meeting on
the issue of licensing of veneer and plywood
industries the Committee took following
decision:
"The Committee has decided that at
this stage it will not be proper to make
any licensing policy regarding veneer
and plywood industry. However,
industry department may be directed
not to issue any new licence for
establishment of veneer and plywood
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14
units."
6. This decision of the Committee, after getting
the approval of State Government
submitted in the High Court in W.P.
NO.3795/95, 1315/2001, 3731/78. In the
hearing of these W.Ps. the Hon’ble Court
observed that:
"It leads nowhere, as to the existing
position, whether today a licence is
required to the complete veneer unit
or whether it is required only where a
saw mill unit is in existence? Why the
seal should not be open. Why these
industries should not be allowed to
run. The decision is vague it only
says for future that Forest
Department is not going to grant any
licence and decision would have been
taken by industry department."
7. Since the issue to giving the licences to the
veneer & plywood industries was not
decided then this matter was put up further
before High Powered Committee on 28th
January, 2004. The H.P.C. on this issue
took following decision.
a. Licence should be given to those
veneer and plywood Industries which
were in operation prior to 4.3.1997.
b. The veneer and plywood industries
running only on slicer and peeler
machine are required to get the
licence.
c. Slicing and peeling machine cannot
be treated as composite unit along
with saw mills.
d. The Hon’ble High Court may be
apprised according to the decision of
State Government.
8. On the basis of decision taken by H.P.C. the
matter may be placed before the Hon’ble
Court, by way of filing affidavit, after taking
the approval from State Government. This
is under consideration and shortly affidavit
shall be filed before the Hon’ble Court.
9. In view of above, in my opinion, the matters
of the applicants may be considered only
after getting permission from the State
Government and the Hon’ble Courts.
Submitted for information and approval.
Sd/- 5.4.2004
Pr.Secretary(F)"
After referring to the history behind the cases, the orders
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14
passed by this Court on 4.3.1997 and 14.7.2003, the order
dated 10.8.1998 passed by the Bombay High Court, Nagpur
Bench, the opinion of the H.P.C., the Deputy Secretary
categorically indicated his stand as follows:
"On the basis of decision taken by H.P.C. the
matter may be placed before the Hon’ble Court
by way of filing affidavit, after taking the
approval from State Government. This is under
consideration and shortly affidavit shall be
filed before the Hon’ble Court.
In view of the above, in my opinion, the
matter of the applicants may be considered
only after getting permission from the State
government and the Hon’ble Courts.
Submitted for information and approval."
Contemnor No.1 Shri Ashok Khot on 5.4.2004 completely
ignored the view expressed by the Deputy Secretary, and on a
clear and what appears to be a deliberate mis-reading of the
H.P.C.’s recommendations expressed the view that there
seems to be no objection in using imported timber for
plywood/veneer/flash door/black board etc. since the
permission given by the Conservator of Forest was prior to the
orders of this Court i.e. 20.2.1997 and 21.2.1997 and these
units can be made operational subject to the decisions of the
Nagpur Bench of the Bombay High Court and of this Court.
The permission shall be at the responsibility of unit holders
and the unit holders shall close the units if the decisions of
the Bombay High Court and this Court are contrary to the
stand put forward by the Maharashtra State. Contemnor No.1
noted as follows:
"Thanks. Proposal accepted. Permission
be granted to start."
With reference to the orders passed by contemnors 1 and
2 several units in other States like U.P. started making
demands for similar permissions. When this came to the
notice of the CEC and learned Amicus Curiae, they intimated
the State Government about the violation of the orders. The
view of the CEC was contested by the State of Maharashtra.
Here comes into picture the manipulation in the official
records. It has been accepted by contemnor No.1 that on
1.2.2005 he had made a note in Marathi in the official file.
Significantly, rest of the note sheets is in English. The stand
that he wanted to highlight certain aspects during the hearing
is clearly contrary to the materials on record. He claims to
have made the entry on 1.2.2005. But materials clearly
establish that by that time the file was in the possession of
CEC. Further, the High Powered Committee in its
recommendations on 21.8.2004 had never finally decided in
the manner projected by contemnor No.1. The file indicates
something very interesting. Just before the note by contemnor
No.1 recommending the grant of permission to saw mills
which is a typed note running into several pages there is a
hand-written note undated which suggested that there were
different points of view on the subject and an opinion of
counsel who was the then Advocate General presently the
learned Solicitor General was also available. The obvious
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14
purport of this note was to show that there were also others
who did not share the view of the subordinate officer who had
suggested that the proposal to re-open the mills was to be
rejected.
Since there was no comment of CEC on this note, learned
Amicus Curiae made an enquiry from CEC to find out whether
the note had missed the attention of members of CEC and
whether they had enquired into the correctness of what was
stated in the note. The Member Secretary of the CEC asserted
that he did not recollect having seen any such note and
therefore made enquiries from the Chief Secretary,
Maharashtra.
Reply of the Chief Secretary is also very significant. The
Chief Secretary handed over a set of zeroxed pages of the file
which he had returned before handing over the files to the
CEC and they did not carry any such note. The object of
introducing this note is very clear i.e. to show that his view
was a possible view as there were different view points on the
subject. In his reply, contemnor No.1 had stated that the files
were kept in the custody of the Joint Secretary and were
returned to the Forest Department on 1.2.2005 by CEC and
the files were brought to this Court by the Joint Secretary
subsequently. The relevant files were always in the possession
of the Joint Secretary since then and were produced before
this Court by him on 15.4.2005. He has stated that he had
never been in possession of the files except when required. He
has further stated that there was never any manipulation of
file by him as alleged. He re-iterated that as a matter of fact
that there has been no specific insertion as alleged by learned
Amicus Curiae. This stand was subsequently given a go bye.
He admitted to have made the note. Then comes the other
palpably unacceptable and frivolous explanation that instead
of writing on a separate piece of paper he by mistake wrote on
the official file. Apart from the frivolity of the plea, it is clearly
further falsified by the fact that on 1.2.2005 the file was with
the CEC. These leave no manner of doubt that contemnor No.1
has deliberately and wilfully disregarded the authority of law.
In B.M. Bhattacharjee (Major General) and Anr. v. Russel
Estate Corporation and Anr. (AIR 1993 SC 1633) it was
observed by this Court that "all of the officers of the
Government must be presumed to know that under the
constitutional scheme obtaining in this country, orders of the
courts have to be obeyed implicitly and that orders of the apex
court-for that matter any court- should not be trifled with".
Any country or society professing rule of law as its basic
feature or characteristic does not distinguish between high or
low, weak or mighty. Only monarchies and even some
democracies have adopted the age old principle that the king
cannot be sued in his own courts.
Professor Dicey’s words in relation to England are equally
applicable to any nation in the world. He said as follows:
"When we speak of the rule of law as a
characteristic of our country, not only that
with us no man is above the law but that every
man, whatever be his rank or condition, is
subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary
tribunals. In England the idea of legal equality,
or the universal subjection of all classes to one
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14
law administered by the ordinary courts, has
been pushed to its utmost limit. With us every
official, from Prime Minister down to a
constable or a collector of taxes, is under the
same responsibility for every act done with
legal justification as any other citizen. The
reports abound with cases in which officials
have been brought before the courts, and
made, in their personal capacity, liable to
punishment, or to the payment of damages, for
acts done in their official character but in
excess of their lawful authority. A colonial
governor, a secretary of State, a military
officer, and all subordinates, though carrying
out the commands of their official superiors,
are as responsible for any act which the law
does not authorize as is a private and
unofficial person. (See Introduction to the
Study of the Law of the Constitution, 10th Edn.
1965, pp. 193-194).
Respect should always be shown to the Court. If any
party is aggrieved by the order which is in its opinion is wrong
or against rules or implementation is neither practicable nor
feasible, it should approach the Court. This had been done
and this Court after consideration had rejected the I.A. long
before.
Stand of contemnor No.2 is that he being not very highly
educated depended on the view of the H.P.C./high placed
officials. This plea is not only hollow but without any
substance. As the contemnor No.2 in his reply has indicated
that he has been a parliamentarian, a member of Legislative
Assembly and Minister for very long period. To say that he was
not aware of the complexities of the orders of this Court and,
therefore, depended on the top bureaucrats is a futile attempt
to shift the responsibility. He has not even indicated as to why
the view of the Deputy Secretary, Shri Tripathi was not to be
accepted. He tried to take shelter behind the so called view of
the H.P.C. and an alleged mistake committed by the typist. In
the further affidavit it has been stated that the learned counsel
drafting the petition took note of mistake committed by the
typist and accordingly drafted the reply. It is pointed out that
the correct documents were available with CEC and he would
not derive any advantage by taking plea contrary to the
documents. The specific case is that the mistake occurred at
the stage of filing of the reply. Even if that is so, it is certainly
a very careless act and more care and caution was necessary,
particularly when the affidavits were being filed before this
Court.
The stand of contemnors also is further falsified when
one takes note of the order passed by the High Court in
Kitply’s case on 10.8.1998. It was clarified that for operation of
any machinery for cutting, slicing and/or peeling the timber -
a license under Rule 23 (1)(ii) of the Bombay Transit of Forest
Produce (Vidarbha region Saurashtra and Kutch Area) Rules,
1960 is required. It is not disputed that since 1999
corresponding Rule 88 of Bombay Forest Rules, 1942 (in short
’Forest Rules, 1942) has become applicable for entire
Maharashtra. Keeping that in view I.A.No.414 of 1999 was
filed to permit grant of license under Forest Rules, 1942 to
unlicensed Plywood/veneer industries, which had NOC,
industrial license etc. and to wood based industries which
intended to operate only on imported timber. The said I.A. was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14
rejected by this Court on 14.7.2003. This Court accepted
recommendations of CEC. It was further directed as follows:
"So far as 64 saw mills which claimed to
be actually eligible for grant of licenses as per
notification dated 16.7.1981 are concerned
their cases may be examined by the State
Government within a period of two months and
if found eligible, their application may be sent
to the CEC which may submit a report to this
Court".
(Underlined for emphasis)
It is thus crystal clear that the applications of those
eligible for grant of licenses were required to be sent to CEC,
who was then required to submit a report to this Court.
Thereafter, this Court would have decided on the question of
entitlement for license. The procedure mandated by this Court
was not followed. Instead of that by their impugned actions,
the contemnors permitted resumption of operations by the
unit holders. There was absolutely no confusion or scope for
entertaining doubt as claimed by the contemnors.
There is one other factor which shows the brazen manner
in which facts have been distorted and without any manner of
doubt wilfully. As noted by the CEC in its second Report, the
Chief Conservator of Forests, Maharashtra by his letter dated
15.2.2000 had stated that pursuant to this Court’s order
dated 4.3.1997 and High Court’s order dated 10.8.1998, 40
unlicensed plywood/veneer units were closed during 1999.
These 40 units include the six units to whom subsequently
permission was granted. Their names figure at Sl. Nos. 29, 30,
36, 37, 38 and 55 of the list enclosed to the letter dated
15.2.2000. But during a raid conducted by the Regional
Deputy Director (WL) Western Region, MOEF on 22.3.2004,
the premises of one of six units M/s Oriental Veneer Products
Pvt. Ltd. (which was sealed on 21.3.1999), the seal was found
to be broken and the unit was functioning. The raid conducted
on 22.3.2004 appears to have pressed the panic button for
making representations on or about 25.3.2004. The orders
were passed on these representations showing scant regard for
this Court’s order.
The explanations of the contemnors are clearly
unacceptable. Mens rea is writ large.
The inevitable conclusion is that both the contemnors 1
and 2 deliberately flouted the orders of this Court in a brazen
manner. It cannot be said by any stretch of imagination that
there was no mens rea involved. The fact situation clearly
shows to the contrary.
Learned counsel appearing for contemnor No.1 and 2
stated that they have tendered unconditional apology which
should be accepted.
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 becomes an act of a cringing coward.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14
Apology is not a weapon of defence to purge the guilty of
their offence, nor is it intended to operate as universal
panacea, but it is intended to be evidence of real contriteness.
As was noted in L.D. Jaikwal v. State of Uttar Pradesh (AIR
1984 SC 1374) "We are sorry to say we cannot subscribe to
the ’slap-say sorry-and forget’ school of thought in
administration of contempt jurisprudence. Saying ’sorry’ does
not make the slapper taken the slap smart less upon the said
hypocritical word being uttered. Apology shall not be paper
apology and expression of sorrow should come from the heart
and not from the pen. For it is one thing to ’say’ sorry-it is
another to ’feel’ sorry.
Proceedings for contempt are essentially personal and
punitive. This does not mean that it is not open to the Court,
as a matter of law to make a finding of contempt against any
official of the Government say Home Secretary or a Minister.
While contempt proceedings usually have these
characteristics and contempt proceedings against a
Government department or a minister in an official capacity
would not be either personal or punitive (it would clearly not
be appropriate to fine or sequest the assets of the Crown or a
Government department or an officer of the Crown acting in
his official capacity), this does not mean that a finding of
contempt against a Government department or minister would
be pointless. The very fact of making such a finding would
vindicate the requirements of justice. In addition an order for
costs could be made to underline the significance of a
contempt. A purpose of the court’s powers to make findings of
contempt is to ensure the orders of the court are obeyed. This
jurisdiction is required to be co-extensive with the courts’
jurisdiction to make the orders which need the protection
which the jurisdiction to make findings of contempt provides.
In civil proceedings the court can now make orders (other than
injunctions or for specific performance) against authorized
Government departments or the Attorney General. On
applications for judicial review orders can be made against
ministers. In consequence such orders must be taken not to
offend the theory that the Crown can supposedly do no wrong.
Equally, if such orders are made and not obeyed, the body
against whom the orders were made can be found guilty of
contempt without offending that theory, which could be the
only justifiable impediment against making a finding of
contempt. (See M v. Home Office (1993 (3) All ER 537).
This is a case where not only right from the beginning
attempt has been made to overreach the orders of this Court
but also to draw red-herrings. Still worse is the accepted
position of inserting a note in the official file with oblique
motives. That makes the situation worse. In this case the
contemnors deserve severe punishment. This will set an
example for those who have propensity of dis-regarding the
court’s orders because of their money power, social status or
posts held. Exemplary sentences are called for in respect of
both the contemnors. Custodial sentence of one month simple
imprisonment in each case would meet the ends of justice. It
is to be noted that in Re: Sri Pravakar Behera (Suo Motu C.P.
301/2003 dated 19.12.2003) (2003 (10) SCALE 1126), this
Court had imposed costs of Rs.50,000/- on a D.F.O. on the
ground that renewal of license was not impermissible in cases
where licenses were issued prior to this Court’s order dated
4.3.1997. That was the case of an officer in the lower rung.
Considering the high positions held by the contemnors more
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14
stringent punishment is called for, and, therefore, we are
compressing custodial sentence.
The contempt petition No.83 of 2005 with I.A. Nos.1503
and 1504 in WP (C) No.202 of 1995 are disposed of.