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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.