SUPREME COURT OF
Contempt Petition (Civil) 83 of 2005 – In
Writ Petition (C) No.202 of 1995- REPORTED IN (2006)5 SCC 1
CHIEF JUSTICE MR. Y.K. SABHARWAL, THE HONOURABLE MR.
JUSTICE ARIJIT PASAYAT & THE HONOURABLE MR. JUSTICE S.H. KAPADIA
T.N. Godavarman Thirumulpad Through the Amicus
Curiae
Versus
Ashok Khot & Another
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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
9. But by orders dated
10. 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 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 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."
11. Affidavits in relation to the charges have been filed by contemnors.
Their stand in essence is as follows:
COTEMNOR NO.1:
12. 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
CONTEMNOR NO.2
13. 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
14. 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, 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
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 judgment 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:
"
The Badar (
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 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
"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
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
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)"
15. After referring to the history behind the cases, the orders 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
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."
16. 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
"Thanks. Proposal accepted.
Permission be granted to start."
17. 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
18. 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,
19. 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.
20. 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.
21. 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.
22. Professor Dicey's words in relation to
"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
23. 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.
24. 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.
25. 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
"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)
26. 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.
27. 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,
28. The explanations of the contemnors are clearly unacceptable. Mens rea is writ large.
29. 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.
30. Learned counsel appearing for contemnor No.1 and 2
stated that they have tendered unconditional apology which should be accepted.
31. Apology is an act of contrition. Unless apology is
offered at the earliest opportunity and in good grace, the apology is
shorn of penitence and hence it is liable to be rejected. If the apology is
offered at the time when the contemnor finds that the
court is going to impose punishment it ceases to be an apology and becomes an
act of a cringing coward.
32. 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
33. 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.
34. 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).
35. 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 stringent punishment is called for,
and, therefore, we are compressing custodial sentence.
36. The contempt petition No.83 of 2005 with I.A. Nos.1503 and 1504 in WP (C)
No.202 of 1995 are disposed of.