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PETITIONER: M.C.  MEHTA

       Vs.

RESPONDENT: KAMAL NATH & ORS.

DATE OF JUDGMENT:       12/05/2000

BENCH: S.S.Ahmad, Doraiswami Raju

JUDGMENT:

     S.SAGHIR  AHMAD,  J.   This case,  which  was  finally decided  by  this Court by its Judgment dated  December  13, 1996,  has  been placed before us for determination  of  the quantum  of pollution fine.  It may be stated that the  main case was disposed of with the following directions:- 1.  The public  trust doctrine, as discussed by us in this  judgment is  a  part of the law of the land.  2.  The prior  approval granted  by the Government of India, Ministry of Environment and  Forest  by the letter dated November 24, 1993  and  the lease-deed  dated April 11, 1994 in favour of the Motel  are quashed.   The  lease  granted  to the  Motel  by  the  said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled  and  set aside.  The Himachal Pradesh  Government shall   take   over  the  area   and  restore  it   to   its original-natural  conditions.   3.   The   Motel  shall  pay compensation  by  way  of cost for the  restitution  of  the environment  and ecology of the area.  The pollution  caused by  various constructions made by the Motel in the river bed and  the  banks  of  the river Beas has to  be  removed  and reversed.   We direct NEERI through its Director to  inspect the  area, if necessary, and give an assessment of the  cost which  is  likely  to be incurred for reversing  the  damage caused  by  the Motel to the environment and ecology of  the area.   NEERI may take into consideration the report by  the Board in this respect.  4.  The Motel through its management shall  show  cause  why pollution fine in  addition  be  not imposed  on  the  Motel.  5.  The Motel  shall  construct  a boundary  wall at a distance of not more than 4 meters  from the  cluster  of rooms (main building of the Motel)  towards the  river basin.  The boundary wall shall be on the area of the  Motel which is covered by the lease dated September 29, 1981.   The Motel shall not encroach/cover/utilise any  part of  the  river basin.  The boundary wall shall separate  the Motel building from the river basin.  The river bank and the river  basin shall be left open for the public use.  6.  The Motel  shall  not  discharge untreated  effluents  into  the river.   We  direct the Himachal Pradesh  Pollution  Control Board  to  inspect the pollution  control  devices/treatment plants  set  up  by  the   Motel.   If  the   effluent/waste discharged  by the Motel is not conforming to the prescribed standards,  action  in accordance with law be taken  against the Motel.  7.  The Himachal Pradesh Pollution Control Board shall  not  permit the discharge of untreated effluent  into river   Beas.    The   Board     shall   inspect   all   the hotels/institutions/factories  in  Kullu-Manali area and  in

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case  any  of them are discharging untreated  effluent/waste into  the  river, the Board shall take action in  accordance with  law.   8.  The Motel shall show cause on December  18, 1996  why  pollution-fine  and  damages be  not  imposed  as directed by us.  NEERI shall send its report by December 17, 1996.   To be listed on December 18, 1996." Pursuant to  the above  Order,  notice  was  issued requiring  the  Motel  to show-cause on two points;  (i) why the Motel be not asked to pay  compensation  to reverse the degraded  environment  and (ii)  why pollution fine, in addition, be not imposed.   Mr. G.L.  Sanghi, learned Senior Counsel, appearing for M/s Span Motel  Private Ltd., has contended that though it is open to the   Court,  in  proceedings  under   Article  32  of   the Constitution,  to  grant compensation to the  victims  whose Fundamental  Rights might have been violated or who are  the victims  of  an  arbitrary executive action  or  victims  of atrocious  behaviour  of public authorities in violation  of public  duties cast upon them, it cannot impose any fine  on those  who are guilty of that action.  He contended that the fine  is a component of Criminal Jurisprudence and cannot be utilised  in civil proceedings specially under Article 32 or 226  of  the Constitution either by this Court or  the  High Court  as  imposition  of  fine would  be  contrary  to  the provisions   contained  in  Article  20   and  21   of   the Constitution.  It is contended that fine can be imposed upon a  person  only  if it is provided by a  statute  and  gives jurisdiction  to  the Court to inflict or impose  that  fine after  giving a fair trial to that person but in the absence of any statutory provision, a person cannot be penalised and no  fine can be imposed upon him.  Mr.  M.C.  Mehta, who has been pursuing this case with the usual vigour and vehemence, has  contended  that  if a person  disturbs  the  ecological balance  and tinkers with the natural conditions of  rivers, forests,  air  and water, which are the gifts of nature,  he would  be  guilty  of  violating not  only  the  Fundamental Rights, guaranteed under Article 21 of the Constitution, but also   be  violating  the   fundamental  duties  to  protect environment  under  Article  51A(g) which provides  that  it shall  be  the duty of every citizen to protect and  improve the natural environment including forests, lakes, rivers and wildlife  and to show compassion for living creatures.   The planet  Earth  which is inhabited by human beings and  other living  creatures, including animals and birds, has been  so created  as  to cater to the basic needs of all  the  living creatures.   Living  creatures do not necessarily  mean  the human  beings, the animals, the birds, the fish, the  worms, the  sepents,  the hydras, but also the plants of  different varieties,  the  creepers, the grass and the  vast  forests. They  survive on fresh air, fresh water and the sacred soil. They  constitute  the  essential elements  for  survival  of "life"  on  this  planet.  The living  creatures,  including human  beings,  lived  peacefully all along.  But  when  the human  beings started acting inhumanly, the era of  distress began  which  in it wake brought new problems for  survival. The industrial revolution brought an awakening among the men inhabiting  this  Earth  that  the   Nature,  with  all  its resources  was  not  unlimited and forever  renewable.   The uncontrolled  industrial  development generating  tonnes  of industrial  waste  disturbed  the   ecological  balance   by polluting the air and water which in turn, had a devastating effect  on the wildlife and, therefore, the early efforts to protect  the  environment  related  to  the  protection   of wildlife.   But then the two world wars, the first world war (1914-1918)  and the second world war (1939 to 1945)  during which  atomic  bombs were exploded resulting in the loss  of

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thousands  of  lives  and burning down of vast  expanses  of forests,  made  the  man realise that if  the  environmental disturbances  were not controlled, his own survival on  this planet  would  become  impossible.    The  United   Nations, therefore,  held  a  Conference  on  human  environment   at Stockholm  in 1972.  In the wake of the resolutions  adopted at  that Conference, different countries at different stages enacted  laws  to  protect the deteriorating  conditions  of environment.   Here in India, the Legislature enacted  three Acts,  namely, The Water (Prevention & Control of Pollution) Act, 1974;  the Air (Prevention & Control of Pollution) Act, 1981  and  The Environment (Protection) Act, 1986.  It  also enacted  the Water (Prevention & Control of Pollution)  Cess Act, 1977.  Under these Acts, Rules have been framed to give effect  to  the provisions thereof.  They are :   The  Water (Prevention  and  Control  of Pollution) Rules,  1975;   The Water  (Prevention & Control of Pollution) Cess Rules, 1978; The  Air (Prevention and Control of Pollution) Rules,  1982; The   Air  (Prevention  &   Control  of  Pollution)   (Union Territories)  Rules,  1983;   The  Environment  (Protection) Rules, 1986;  The Hazardous Wastes (Management and Handling) Rules,  1989;   The  Manufacture,   Storage  and  Import  of Hazardous  Chemicals  Rules,  1989, The  Chemical  Accidents (Emergency  Planning, Preparedness and Response) Rules, 1996 and  hosts of other Rules and Notifications.  In addition to these  Acts and Rules, there are, on the Statute Book, other Acts  dealing,  in a way, with the Environmental  laws,  for example,   the   Indian  Forest   Act,  1927;   The   Forest (Conservation)  Act,  1980;  The Wildlife (Protection)  Act, 1972  and the Rules framed under these Acts.  Various States in  India have also made their Environmental laws and  rules for  the  protection of environment.  Apart from  the  above Statutes  and the Rules made thereunder, Article 48A of  the Constitution  provides  that  the State shall  endeavour  to protect  and  improve the environment and to  safeguard  the forests and wildlife of the country.  One of the fundamental duties  of every citizen as set out in Article 51A(g) is  to protect  and  improve  the  natural  environment,  including forests,  lakes, rivers and wildlife and to have  compassion for  living  creatures.   These  two  Articles  have  to  be considered  in  the light of Article 21 of the  Constitution which  provides that no person shall be deprived of his life and   liberty  except  in   accordance  with  the  procedure established   by   law.   Any   disturbance  of  the   basic environment  elements, namely air, water and soil, which are necessary  for  "life", would be hazardous to "life"  within the  meaning  of  Article 21 of the  Constitution.   In  the matter  of  enforcement  of rights under Article 21  of  the Constitution,  this Court, besides enforcing the  provisions of  the  Acts  referred to above, has also given  effect  to Fundamental   Rights  under  Article  14   and  21  of   the Constitution  and has held that if those rights are violated by disturbing the environment, it can award damages not only for  the restoration of the ecological balance, but also for the  victims who have suffered due to that disturbance.   In order   to  protect  the  "life",   in  order   to   protect "environment"  and in order to protect "air, water and soil" from  pollution,  this Court, through its various  judgments has  given  effect to the rights available, to the  citizens and  persons  alike, under Article 21 of  the  Constitution. The   judgment  for  removal  of  hazardous  and   obnoxious industries  from  the residential areas, the directions  for closure  of certain hazardous industries, the directions for closure  of slaughter-house and its relocation, the  various directions  issued  for the protection of the Ridge area  in

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Delhi,  the  directions  for setting up  effluent  treatment plants to the Industries located in Delhi, the directions to Tanneries  etc.,  are  all judgments which seek  to  protect environment.   In  the matter of enforcement of  Fundamental Rights under Article 21, under Public Law domain, the Court, in   exercise  of  its  powers   under  Article  32  of  the Constitution,  has  awarded damages against those  who  have been  responsible  for  disturbing  the  ecological  balance either by running the industries or any other activity which has the effect of causing pollution in the environment.  The Court  while  awarding damages also enforces  the  "POLLUTER PAYS  PRINCIPLE"  which  is widely accepted as  a  means  of paying  for  the cost of pollution and control.  To  put  in other  words,  the  wrongdoer,  the polluter,  is  under  an obligation   to  make  good  the   damage  caused   to   the environment.   The recognition of the vice of pollution  and its impact on future resources was realised during the early part  of  1970.  The United Nations Economic Commission  for Europe,  during  a panel discussion in 1971, concluded  that the total environmental expenditure required for improvement of the environment was overestimated but could be reduced by increased environmental awareness and control.  In 1972, the Organisation   for  Economic   Cooperation  and  Development adopted  the  "POLLUTER PAYS PRINCIPLE" as  a  recommendable method  for  pollution cost allocation.  This principle  was also  discussed during the 1972 Paris Summit.  In 1974,  the European  Community  recommended  the   application  of  the principle  by its member States so that the costs associated with  environmental  protection  against  pollution  may  be allocated  according  to uniform principles  throughout  the Community.    In  1989,  the   Organisation   for   Economic Cooperation  and Development reaffirmed its use and extended its  application  to include costs of accidental  pollution. In  1987,  the  principle  was  acknowledged  as  a  binding principle  of  law  as  it   was  incorporated  in  European Community  Law through the enactment of the Single  European Act,  1987.   Article 130r.2 of the 1992  Maastricht  Treaty provides  that Community Environment Policy "shall be  based on  the  principle that the polluter should pay."  "POLLUTER PAYS  PRINCIPLE"  has  also been applied by  this  Court  in various  decisions.   In  Indian Council  for  Enviro  Legal Action  vs.  Union of India, AIR 1996 SC 1446 = 1996 (2) SCR 503  =  (1996) 3 SCC 212 = JT 1996 (2) SC 196, it  was  held that  once  the  activity  carried   on  was  hazardous   or inherently  dangerous, the person carrying on that  activity was  liable to make good the loss caused to any other person by  that  activity.   This principle was  also  followed  in Vellore  Citizens Welfare Forum vs.  Union of India &  Ors., AIR  1996  SC  2715 = (1996) 5 SCC 647= JT 1996 (7)  SC  375 which  has  also been discussed in the present case  in  the main  judgment.   It was for this reason that the Motel  was directed  to  pay  compensation  by  way  of  cost  for  the restitution  of the environment ecology of the area.  But it is the further direction why pollution fine, in addition, be not  imposed  which  is the subject matter  of  the  present discussion.   Chapter  VII  of  the  Water  (Prevention  and Control  of  Pollution)  Act, 1974 contains  the  provisions dealing with penalties and procedure.  This Chapter consists of Sections 41 to 50.  Sub-section (2) and (3) of Section 41 provide for the punishment and imposition of fine.  They are quoted  below:-  "41.(2)  Whoever fails to comply  with  any order  issued under clause (e) of sub-section (1) of Section 32  or any direction issued by a Court under sub-section (2) of  Section  33 or any direction issued under  Section  33A, shall  in  respect  of each failure and  on  conviction,  be

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punishable  with imprisonment for a term which shall not  be less  than  one year and six months but which may extend  to six  years and fine, and in case the failure continues, with an  additional fine which may extend to five thousand rupees for  every day during which such failure continues after the conviction  for the first such failure.  (3) If the  failure referred  to in sub-section (2) continues beyond a period of one  year after the date of conviction, the offender  shall, on  conviction,  be punishable with imprisonment for a  term which  shall not be less than two years but which may extend to  seven  years  and  with  fine."  Similarly,  Section  42 provides  that a person shall be liable to be punished  with imprisonment  for a term which may extend to three months or with  fine  which may extend to ten thousand rupees or  with both.   Sub-section  (2)  of Section  42  also  contemplates imprisonment  for a term which may extend to three months or with  fine  which may extend to ten thousand rupees or  with both.   Section 43 contemplates penalty for contravention of the  provisions  of  Section 24.   Section  44  contemplates penalty for contravention of Section 25 or Section 26.  They also  contemplate  imposition of fine.  Section 45  provides that if a person who has been convicted of any offence under Section 24 or Section 25 or Section 26 is again found guilty of   an  offence  involving  a  contravention  of  the  same provision,  he shall, on the second and on every  subsequent conviction, be punishable with imprisonment for a term which shall  not  be less than two years but which may  extend  to seven  years  and  with  fine.  Section  45A  provides  that whoever  contravenes  any of the provisions of this  Act  or fails to comply with any order or direction given under this Act,  for  which no penalty has been elsewhere  provided  in this  Act,  shall be punishable with imprisonment which  may extend  to three months or with fine which may extend to ten thousand  rupees or with both and in the case of  continuing contravention  or  failure,  he  may  be  punished  with  an additional  fine.   Section  47   contemplates  offences  by Companies   while  Section  48   contemplates  offences   by Government  Departments.   Section  15  of  the  Environment (Protection)   Act,   1986   provides    for   penalty   for contravention  of  the provisions of the Act and the  rules, orders  and directions made thereunder.  Sub-section (1)  of Section  15  speaks  of imprisonment for a  term  which  may extend  to  five years or with fine which may extend to  one lakh  rupees,  or  with  both, and in case  the  failure  or contravention  continues,  with  additional fine  which  may extend  to  five thousand rupees for every day during  which such failure or contravention continues after the conviction for  the first such failure or contravention.  Section 16 of the Act contemplates offences by the Companies while Section 17 contemplates offences by Government Departments.  Chapter VI  of  the Air (Prevention and Control of  Pollution)  Act, 1981  contains  the provisions for penalties and  procedure. This  Chapter  consists  of Sections 37 to 46.   Section  37 provides penalties for failure to comply with the provisions of  Section  21 or Section 22 or with the directions  issued under  Section  31A.  It provides that the person  shall  be punishable  with imprisonment for a term which shall not  be less  than  one year and six months but which may extend  to six  years and with fine, and in case the failure continues, with  an  additional fine which may extend to five  thousand rupees  for  every  day.  Sub-section (2)  of  this  Section provides  that if the failure continues beyond the period of one year after the date of conviction, the offender shall be punishable  with imprisonment for a term which shall not  be less  than two years but which may extend to seven years and

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with  fine.  Section 38 also provides penalties for  certain acts  and it provides that for such acts as are referred  to in  that  Section,  a  person   shall  be  punishable   with imprisonment  for a term which may extend to three months or with  fine  which may extend to ten thousand rupees or  with both.   Section 39 contemplates penalty for contravention of certain   provisions  of  the  Act   and  it  provides   for imprisonment  for a term which may extend to three months or with  fine  which may extend to ten thousand rupees or  with both,  and in the case of continuing contravention, with  an additional fine which may extend to five thousand rupees for every  day  during which such contravention continues  after conviction  for  the first such contravention.   Section  40 speaks  of offences by Companies while Section 41 speaks  of offences  by  Government Departments.  All the  three  Acts, referred  to  above,  also  contemplate the  taking  of  the cognizance  of  the offences by the Court.  Thus,  a  person guilty  of  contravention of provisions of any of the  three Acts  which constitutes an offence has to be prosecuted  for such  offence  and in case the offence is found proved  then alone he can be punished with imprisonment and fine or both. The  sine qua non for punishment of imprisonment and fine is a  fair  trial  in  a competent court.   The  punishment  of imprisonment or fine can be imposed only after the person is found  guilty.   In  the instant case, a  finding  has  been recorded that M/s Span Motel had interfered with the natural flow of river and thus disturbed the environment and ecology of  the area.  It has been held liable to pay damages.   The quantum of damages is under the process of being determined. The  Court directed a notice to be issued to show cause  why pollution  fine be not imposed.  In view of the above, it is difficult  for  us  to hold that the pollution fine  can  be imposed  upon  M/s Span Motel without there being any  trial and  without there being any finding that M/s Span Motel was guilty  of  the  offence under the Act and  are,  therefore, liable  to be punished with imprisonment or with FINE.  This notice has been issued without reference to any provision of the  Act.  The contention that the notice should be  treated to  have been issued in exercise of power under Article  142 of  the  Constitution  cannot be accepted  as  this  Article cannot be pressed into aid in a situation where action under that  Article would amount to contravention of the  specific provisions  of the Act itself.  A fine is to be imposed upon the  person who is found guilty of having contravened any of the  provisions  of  the Act.  He has to be  tried  for  the specific  offence and then on being found guilty, he may  be punished  either  by sentencing him to undergo  imprisonment for  the period contemplated by the Act or with fine or with both.   But  recourse  cannot  be taken to  Article  142  to inflict  upon him this punishment.  The scope of Article 142 was  considered in several decisions and recently in Supreme Court  Bar Association vs.  Union of India, AIR 1998 SC 1895 =  (1998) 4 SCC 409, by which the decision of this Court  in V.C.  Mishra, Re, (1995) 2 SCC 584, was partly overruled, it was  held that the plenary power of this Court under Article 142  of  the Constitution are inherent in the Court and  are "COMPLEMENTARY"  to  those  powers  which  are  specifically conferred  on  the  Court by various statutes.   This  power exists  as a separate and independent basis of  jurisdiction apart  from  the statutes.  The Court further observed  that though  the powers conferred on the Court by Article 142 are curative in nature, they cannot be construed as powers which authorise  the  Court to ignore the substantive rights of  a litigant.  The Court further observed that this power cannot be used to "supplant" substantive law applicable to the case

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or  cause  under consideration of the Court.   Article  142, even  with  the  width of its amplitude, cannot be  used  to build  a new edifice where none existed earlier, by ignoring express  statutory  provisions  dealing with a  subject  and thereby  achieve  something  indirectly   which  cannot   be achieved  directly.  Similarly, in M.S.  Ahlawat vs.   Union of  India & Anr., AIR 2000 SC 168 = (2000) 1 SCC 278, it was held that under Article 142 of the Constitution, the Supreme Court cannot altogether ignore the substantive provisions of a  statute and pass orders concerning an issue which can  be settled  only  through  a mechanism  prescribed  in  another statute.   Thus, in addition to the damages which have to be paid by M/s Span Motel, as directed in the main Judgment, it cannot  be  punished with fine unless the  entire  procedure prescribed  under the Act is followed and M/s Span Motel are tried for any of the offences contemplated by the Act and is found  guilty.   The  notice issued to M/s  Span  Motel  why pollution  fine  be  not imposed upon  them  is,  therefore, withdrawn.   But the matter does not end here.  Pollution is a  civil wrong.  By its very nature, it is a Tort  committed against  the community as a whole.  A person, therefore, who is   guilty  of  causing  pollution   has  to  pay   damages (compensation)  for  restoration  of   the  environment  and ecology.   He  has  also to pay damages to  those  who  have suffered  loss  on account of the act of the offender.   The powers of this Court under Article 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held  in  a  series of decisions.  In  addition  to  damages aforesaid,  the person guilty of causing pollution can  also be  held liable to pay exemplary damages so that it may  act as  a  deterrent  for others not to cause pollution  in  any manner.  Unfortunately, notice for exmeplary damages was not issued  to  M/s  Span Motel although it ought to  have  been issued.   The considerations for which "fine" can be imposed upon  a person guilty of committing an offence are different from  those  on the basis of which exemplary damages can  be awarded.   While  withdrawing  the  notice  for  payment  of pollution  fine,  we direct a fresh notice be issued to  M/s Span  Motel  to  show  cause why  in  addition  to  damages, exemplary  damages  be not awarded for having committed  the acts set out and detailed in the main judgment.  This notice shall  be returnable within six weeks.  This question  shall be  heard at the time of quantification of damages under the main judgment.