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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.

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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.

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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

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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.