THE HON’BLE SRI JUSTICE SANJAY KUMAR CONTEMPT CASE NO.1476 OF 2010 DATED AUGUST, 2011 BETWEEN Sode Ramulu …Petitioner And Sri K.L.V.Prasad, Assistant Director of Mines and Geology, Kothagudem, Khammam District and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CONTEMPT CASE NO.1476 OF 2010 ORDER: By separate interim orders dated 25.08.2010 passed in Writ Petition No.20867 of 2010, this Court suspended the Circular Memo dated 06.10.2008 of the Director of Mines and Geology, Government of Andhra Pradesh, Hyderabad, and directed the respondents in the writ petition to receive forthwith the proportionate bid amount from the petitioner for the period during which he was to operate the first year’s lease and to execute forthwith the lease deed enabling him to quarry sand from Anantharam sand reach, Manuguru Mandal, Khammam District. These orders were communicated by wire to the respondents on the very same day. Alleging disobedience to the said orders, this contempt case was instituted on 30.09.2010. Notice before admission was ordered in the case on 06.10.2010. The lease in favour of the petitioner was admittedly executed only on 14.10.2010 and at that, upon the intervention of the Chief Minister of the State. Originally, Sri K.L.V.Prasad, Assistant Director of Mines and Geology, Kothagudem, Khammam District, alone was arraigned for the alleged disobedience. Thereafter, by order dated 18.02.2011 passed in C.A.No.138 of 2011, Smt.Ranjeev R.Acharya, Principal Secretary to the Government, Industries and Commerce Department, Government of Andhra Pradesh, and Sri B.R.V.Susheel Kumar, Director of Mines and Geology, Government of Andhra Pradesh, were impleaded eo nomine as respondents 2 and 3 in the contempt case. Pertinent to note, all the three officers were party to the writ petition and consequently, to the orders passed therein. The facts of the case, to the extent relevant to these contempt proceedings, are as under: The petitioner was declared the successful bidder in the auction held on 05.08.2010 for lease of the sand quarrying rights over Anantharam sand reach, Manuguru Mandal, Khammam District. He deposited the requisite 25% of the knocked down amount within the stipulated time fixed under the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for brevity, ‘the Rules of 1966’). However, the auction in his favour had to be confirmed by the Zonal Joint Director of Mines and Geology, Government of Andhra Pradesh. Separate confirmation orders in this regard were issued by the said officer on 12.08.2010. As per Rule 9-I(2) of the Rules of 1966 the bidder, upon receipt of the confirmation order, had to remit the balance amount, as specified, within seven days from the date of the order. It is not in dispute that this confirmation order dated 12.08.2010 was served upon the petitioner only on 18.08.2010, the seventh day from the date of the order. The petitioner therefore submitted a representation on the very same day, viz., 18.08.2010, seeking extension of time by seven days from the date of communication of the order dated 12.08.2010 for making the balance payment proportionately for the first year of the lease. Alleging that the Assistant Director of Mines and Geology, Kothagudem, Khammam District, refused to accept his request, the petitioner approached this Court by way of the subject Writ Petition, W.P.No.20867 of 2010. This Court, by order dated 25.08.2010 in WPMP No.27475 of 2010 filed in the said writ petition suspended the Circular Memo dated 06.10.2008, which required the full bid amount for the first year to be collected, irrespective of the actual period of the first year’s lease, and adjusted against the second year. By a separate order of the same date in WPMP No.26541 of 2010 filed in the writ petition, this Court directed the respondents to receive forthwith the proportionate bid amount for the period during which the petitioner was to operate the first year’s lease and to execute forthwith the lease deed in his favour for quarrying sand from Anantharam sand reach, Manuguru Mandal, Khammam District. The petitioner states that after communicating the above orders by wire to the respondents on the very same day, he made the necessary deposits but the lease deed was not executed, thereby incapacitating him from operating the sand quarry. He therefore seeks necessary punitive action against the respondents under the Contempt of Courts Act, 1971 (for brevity, ‘the Act of 1971’) for violation of the Court orders. Sri K.L.V.Prasad, Assistant Director of Mines and Geology, Kothagudem, initially the sole respondent in this contempt case, filed his counter affidavit dated nil-11-2010, wherein he admitted receipt of the wire orders from this Court on 26.08.2010. He further admitted that the petitioner paid the balance proportionate knocked down amount along with the income tax payable thereon on 26.08.2010. He however stated that the petitioner failed to pay the security deposit and the stamp duty required for execution of the lease deed. He stated that he had addressed letter dated 26.08.2010 to the Director of Mines and Geology, Government of Andhra Pradesh, Hyderabad, informing him of the above payments by the petitioner and seeking a clarification in the matter. He stated that the Principal Secretary, Industries and Commerce Department, Government of Andhra Pradesh, condoned the delay in execution of the lease deed and permitted the same subject to final orders in the writ petition under Memo dated 11.10.2010. Thereupon, the petitioner is said to have remitted the security deposit along with the stamp duty and the lease deed was executed on 14.10.2010. He stated that there was a slight delay in the implementation of the order of this Court as seven days time was stipulated for payment of the amounts under Rule 9-I of the Rules of 1966 and the Government alone had the power to condone the delay thereafter under Rule 9-K(2) of the said Rules. He further stated that the delay in the implementation of the order was neither wilful nor wanton, but ended on a belligerent note by stating that he tendered his unconditional apology to the Court in the unlikely event this Court came to the conclusion that the direction dated 25.08.2010 was to be understood to the effect that the petitioner was to be permitted to pay the proportionate lease amount without furnishing the security deposit and stamp duty. The petitioner, in his reply affidavit dated 26.11.2010 filed in response to the above counter, stated that the Assistant Director of Mines and Geology, Kothagudem, had to furnish to him the details of the stamp duty and other deposits before he could make the payment, but the officer had reported that no letter could be given in this regard as a clarification was sought from the Director of Mines and Geology, Government of Andhra Pradesh, Hyderabad. He stated that he had approached the officer a number of times but the details of the security deposit and stamp duty were furnished only after the condonation of delay by the Government under Memo dated 11.10.2010. Thereafter, respondents 2 and 3 were impleaded in this contempt case as they were parties to the orders passed by this Court and were consequently liable to account for the delay in the implementation thereof. Respondents 2 and 3 filed separate counters. Sri B.R.V.Susheel Kumar, Director of Mines and Geology, Government of Andhra Pradesh, Hyderabad, respondent 3, filed his counter on 03.03.2011. He relied upon the Rules of 1966 in support of his contention that the petitioner had to pay the amounts due under Rule 9-I within seven days from the date of the confirmation order. Pertinent to note, this was the specific issue raised in the writ petition even at the time of its admission and was therefore within the knowledge of this Court when it passed the interim orders on 25.08.2010. He also referred to the fact that the petitioner did not furnish the security deposit and pay the stamp duty when he remitted the proportionate balance knocked down amount on 26.08.2010. He however did not choose to meet the allegations of the petitioner in his reply to the counter filed by the Assistant Director of Mines and Geology, Kothagudem, to the effect that, in spite of his requests, the details as to the quantum of the security deposit and the stamp duty were not furnished to him. He referred to the communication dated 26.08.2010 of the Assistant Director of Mines and Geology, Kothagudem, seeking a clarification in the matter, and stated that he, in turn, submitted a report to the Government under letter dated 06.09.2010. He stated that after examination of the matter, a detailed counter was filed in the writ petition on 28.09.2010 along with a vacate stay application. He pointed out that the counter was filed at least 2 days before the filing of this contempt case. He further stated that though orders had been granted by this Court on 25.08.2010, as the petitioner had not submitted an application for seeking condonation of delay, there was no possibility for the Government to consider his case under Rule 9-K(2) of the Rules of 1966. He then referred to the fact that the petitioner had made representations to the Chief Minister of the State and that the office of the Chief Minister had directed examination of the matter and the circulation of the file; and as the petitioner had also submitted a separate representation to his office on 07.10.2010, proceedings in Memo dated 11.10.2010 were issued by the Government in exercise of powers conferred by Rule 9-K(2) of the Rules of 1966 condoning the delay and permitting the execution of the lease deed in favour of the petitioner. He stated that the orders of this Court were implemented at the very first opportunity and within a period of less than four days from the receipt of a representation from the petitioner on 07.10.2010. He denied the allegation levelled by the petitioner that there was a violation of this Court’s orders. He then launched an attack against the petitioner introducing new facts which are wholly irrelevant for the purpose of this contempt case. He pointed out that orders were issued condoning the delay in less than a week from the submission of a representation by the petitioner on 07.10.2010 and stated that he did not commit wilful and deliberate contempt to the orders of this Court. It would however be apposite to extract the language used by the Officer while offering his apology: “19. ……… I have always a high respect and regard to this Hon’ble Court and its orders and in the unlikely event that this Hon’ble Court were to conclude that the Government ought to have condoned the delay in payment of the requested amounts by the petitioner even without an application being moved by the petitioner, I hereby sincerely apologize for not having understood the orders of this Hon’ble Court from this perspective.” He then referred to case law in support of his plea that the Act of 1971 is to ensure that orders of the Court were complied with and not to proceed against persons and reiterated that this Court’s orders had been complied with at the earliest possible point of time after duly following the procedure and sought closure of the proceedings. Smt.Ranjeev R.Acharya, Principal Secretary to the Government, Industries and Commerce Department, Government of Andhra Pradesh, respondent 2, filed her counter on 16.04.2011, reproducing the contents of the counter filed by respondent 3, including an apology in identical terms. Detailed arguments were advanced by Smt.N.Shoba, learned counsel for the petitioner and the learned Government Pleader for Industries and Commerce representing the respondents. Records were also produced for the perusal of the Court. The pleadings in the writ petition clearly demonstrate that the issue of the alleged delay on the part of the petitioner in making payments within seven days from the date of confirmation of the grant of lease was specifically raised and was therefore well within the knowledge of this Court. However, this Court, being of the opinion that the authorities’ interpretation of this Rule was incorrect, granted interim orders dated 25.08.2010 requiring the respondent authorities to forthwith receive the proportionate bid amount and to execute forthwith the lease deed in favour of the petitioner. Once this Court passed such orders requiring compliance forthwith, it was for the authorities to act in accordance therewith. Falling back upon their own interpretation of the Rule, which was itself the subject matter of the lis, as a defence for not complying with the orders cannot be countenanced. All the more so, when resorted to by those in the higher echelons of governance. The specific use of the word ‘forthwith’ on two occasions in the order ought to have indicated to the respondent authorities that immediate action was required on their part to comply. Though a separate defence is taken that the petitioner failed to furnish the security deposit and pay the stamp duty required for executing the lease deed, the specific averment of the petitioner that the details thereof were not furnished to him in spite of his repeated requests, is left unrebutted though respondents 2 and 3 filed their counters thereafter. Their self-serving plea that the delay in this regard had to be condoned by the Government alone under the Rules of 1966 is equally unworthy of consideration as this Court had directed forthwith execution of the lease deed, being well aware of the said Rule. There is no indication in the records that, being seized of the matter pursuant to this Court’s order, the respondents ever called upon the petitioner to seek condonation of delay, if any, or pay specified amounts towards the security deposit and the stamp duty. Under the weight of a court order requiring their immediate action, that would be the least expected of the respondents. In any event, if the respondent authorities were of the opinion that the orders were incapable of implementation owing to their own version and understanding of the Rules, they should have approached this Court for clarification or sought a review or in the alternative, sought appellate intervention. On the other hand, it is the statement of the Principal Secretary to the Government, Industries and Commerce Department, that a counter was filed in the writ petition along with a vacate stay application on 28.09.2010, more than a month later, but before the filing of the contempt case. This is hardly the response that this Court would expect from an officer of the rank of a Principal Secretary to the Government, when faced with a direction which required her to take action ‘forthwith’. The records reflect that the Assistant Director of Mines and Geology, Kothagudem, upon being apprised of this Court’s order immediately addressed a letter on 26.08.2010 to his superior, the Director of Mines and Geology, Government of Andhra Pradesh, Hyderabad, respondent 3, seeking a clarification in the matter. The response of the Director of Mines and Geology, Government of Andhra Pradesh, in his report dated 06.09.2010, available in the records, was directed only at filing a counter affidavit in the writ petition and no mention is made therein with regard to the requirement of complying with the Court orders. The records further reflect that in spite of the Chief Minister’s Office intervening in the matter upon the petitioner’s representation dated 21.09.2010 and requesting that the matter be got examined and to circulate the file for orders, the respondents paid no heed to the necessity of complying with the Court orders and circulated the file to the Chief Minister with the recommendation that the outcome of the writ petition be awaited and that action be taken thereafter. Thereupon, the Chief Minister, by endorsement dated 08.10.2010, directed implementation of the Court orders duly reserving the right to contest the same. It was only upon this unequivocal directive that the Principal Secretary to the Government, Industries and Commerce Department, respondent 2, swung into action and issued Memo dated 11.10.2010 condoning the delay in the execution of the lease under Rule 9-K(2) of the Rules of 1966. This response on the part of the authorities to a direction of this Court requiring compliance forthwith is hardly satisfactory. Whether this apparent disregard is also contumacious is the issue. The word ‘forthwith’ in its ordinary signification would mean ‘immediately’ but in judicial parlance it would be more elastic in its import and would mean ‘as soon as by reasonable exertion, confined to the object, it may be accomplished’ [Anderson v. Goff, 1 Am. St. Rep.34]. A Constitution Bench in KESHAV NILKANTH JOGLEKAR v. COMMISSIONER OF POLICE, GREATER BOMBAY[1] held that an act which is to be done ‘forthwith’ must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay. However, when an act is done after an interval of time and there is no explanation forthcoming for the delay it cannot be held to have been done ‘forthwith’. Therefore, an act to be done ‘forthwith’ means that it should be performed with reasonable speed and expedition and that any delay in the matter should be satisfactorily explained. I n BIDYA DEB BARMA v. DISTRICT MAGISTRATE, TRIPURA[2], another Constitution Bench held that a particular thing to be done ‘forthwith’ should be understood as allowing a reasonable time for doing it. In GOPAL MONDAL v. STATE OF WEST BENGAL[3], the Supreme Court affirmed that ‘forthwith’ means as soon as possible; without any delay and in the event there is some delay which is reasonably explained then there is no violation. In SALIM v. STATE OF WEST BENGAL[4], the Supreme Court reiterated on the touchstone of the earlier decisions that ‘forthwith’ does not connote a precise time and should be understood to mean without avoidable or unreasonable delay. The case on hand however reflects that there were no exertions whatsoever by respondents 2 and 3 to comply with the Court orders. Let alone tendering an explanation for the delay in compliance, these respondents adopted an adamant stand that the rules must be implemented without exception as unilaterally understood by them thereby negating the orders of this Court which, according to them, were not in keeping with such interpretation. It is also to be noted that this Court had merely directed the respondents to forthwith receive the amounts and execute the lease deed. The main grievance that the respondents seem to have had with this direction was as to the quantum of the amounts to be paid as per schedule prior to such execution and the condonation of delay in that regard. Needless to state, the receipt of the amounts and the execution of the lease deed with reasonable despatch would not have had an irreversible or irreparable adverse effect upon the State. The petitioner could have been called upon even thereafter to pay such amounts as were found due by this Court upon further adjudication in the matter. So far as the issue of condonation of delay is concerned, the delay as perceived by the respondents was a result of their own interpretation of the Rule which was already sub judice in the writ petition. This aspect was palpably within the knowledge of the Court when it passed orders on 25.08.2010. What is particularly worrisome in this case is that dereliction in the face of court orders is attributed to those occupying responsible and high positions of power and governance, members of the permanent executive, respondents 2 and 3. Bimal Jalan, well-known Economist and former Governor of the Reserve Bank of India, states that division of the administrative structure between the ‘political part’ and the ‘non-political civil service part’ is to ensure that while all policy decisions effecting the public are made by politicians, implementation of these policies is carried out by an independent non-political civil service. This separation of ‘policy making function’ from the ‘implementation function’ is an essential feature of the Constitution and is expected to provide equality of treatment to all citizens irrespective of political or party affiliations. The bureaucracy is supposed to ensure that programmes are implemented according to the laws in force and in line with approved administrative procedures. While implementing the programmes set by the Cabinet and the Ministers, bureaucrats are enjoined to act without fear or favour.[5] Thus, the permanent executive, the bureaucracy at various levels in the administrative hierarchy, is expected to operate in a balanced manner and act in an advisory role to supplement the functioning of the political executive, with due regard to the constitutional mandate resting upon it to uphold the rule of law. The case on hand presents a peculiar reversal of roles where the political executive, the Chief Minister of the State, had to step in to remind the permanent executive of its responsibility and duty to abide by orders of the Court for upholding the rule of law!! A member of the permanent executive is enjoined to comply with the orders of the Court passed in exercise of judicial review. The Court would expect that the authorities would discharge their duties expeditiously as enjoined under the rules and as per the directions. If they do not discharge the duty, necessarily they would be required to give explanation to the Court as to the circumstances in which they could not comply with the direction issued by the Court or if there was any unavoidable delay, they should seek further time for compliance [STATE OF BIHAR v. SUBHASH SINGH[6]]. Learned Government Pleader appearing for the respondents submitted that the delay in the execution of the lease deed was purely owing to administrative reasons. However, the records do not support this plea. There is nothing in the records to indicate that even a semblance of an effort or attempt was made by respondents 2 and 3 to comply with the directions of this Court till the intervention by the Chief Minister on 08.10.2010. The learned Government Pleader stated that the orders of this Court were found to be in conflict with the Rules and therefore, steps were taken to file a vacate stay application in the writ petition immediately. However, as pointed out by Smt.N.Shoba, learned counsel, the said vacate stay application was filed well over a month after the passing of the orders by this Court on 25.08.2010. No attempt was made by the respondents in the meanwhile to comply with the orders and no effort was made thereafter to have the vacate stay application heard. It was not even listed for hearing by the time arguments concluded in this contempt case! In any event, the respondents ought to have at least approached this Court for extension of time if they were unable to comply with this Court’s directions which required immediate implementation. Section 2(b) of the Act of 1971 defines ‘civil contempt’ as under: “2(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;” To qualify as a ‘civil contempt’ under the above provision, the disobedience must be wilful [INDIAN AIRPORTS EMPLOYEES' UNION v. RANJAN CHATTERJEE[7]]. Disobedience of Court orders strikes at the very root of the rule of law on which our system of governance is based. However, as such disobedience must be wilful, it would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order [KAPILDEO PRASAD SAH v. STATE OF BIHAR[8]]. If from the circumstances of a particular case, the Court is satisfied that although there has been a disobedience but the same is the result of compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish such contemner [NIAZ MOHAMMAD v. STATE OF HARYANA[9]]. However, as pointed out by a learned Judge of this Court in I.B.SUGUNA DEVI v. C.B.S.VENKATA RAMANA[10], relying upon HEATONS TRANSPORT (ST HELENS) LTD. v. TRANSPORT AND GENERAL WORKERS UNION[11], it would not be necessary to show that the disobedience was contumacious in the sense that there was a direct intention to disobey the order to qualify the same as ‘wilful’. Effective administration