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PETITIONER: VINEET KUMAR MATHUR

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT:       23/01/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) NANAVATI G.T. (J)

CITATION:  JT 1996 (1)   454        1996 SCALE  (1)504

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This Order  may be  read in  continuation of  our Order dated November 8, 1995.      Two  contempt   notices  have   been  issued   to   the respondents herein,  Brig. Kapil Mohan and Sri Yogesh Kumar, Managing Director  and Chief  Executive Officer respectively of Mohan  Meakins  Limited.  the  first  pertains  to  their operating  the   plant  between   7th  and   11th  April  in contravention of  the orders of this Court dated January 15, 1993 while  the second  notice concerns  their obtaining the "consent" from  the Uttar  Pradesh Pollution  Control  Board [U.P.P.C.B.] on  April 21, 1993 and operating their plant on that basis  in contravention of the said order dated January 15, 1993.  The arguments  on the  first notice were heard on the previous  day of  hearing when the contempt case against the ex-officio  Chairman and  Member-Secretary of U.P.P.C.B. was heard.  On the second notice, we have now heard Sri F.S. Nariman for  the contemnors.  Sri P.H. Parekh again assisted us as amicus curiae.      We shall  deal with  the  first  notice  in  the  first instance. In  terms of  the order  dated January  15,  1993, Mohan Meakin’s  plant was  closed on  and with  effect  from April 1,  1993 since  the P.C.B. refused to certify that the said plant  has  attained  the  prescribed  level  of  anti- pollution standards.  There was  no order from this Court or from the  P.C.B. permitting  the  said  plant  was  operated between 7th and 11th April, 1993. The explanation offered by the contemnors for it is contained in the affidavit filed by Sri Yogesh  Kumar on  April 27, 1993 and the affidavit filed by Brig.  Kapil Mohan on May 1, 1993. Their case is that the running  of  the  plant  between  the  said  two  dates  was necessary to avoid danger to public health and safety. It is stated  that  according  to  the  advice  of  the  technical experts, if  the plant  had remained  closed for  more  than seven days,  process of  de-stabilisation would set in which could have been very harmful to the general public. It is in

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view of the said advice, they stated, they started the plant just to  avoid the  process of de-stabilisation from setting in. They  also asserted  that before starting the plant, Sri Yogesh Kumar  filed an  affidavit in  this Court stating the correct facts  and the  compulsions under which the unit had to work  for a  short period.  Brig. Kapil  Mohan,  Managing Director,  stated  in  addition  that  he  is  not  directly concerned with the functioning and working of Mohan Meakin’s plant which, according to him, is in the hands of Sri Yogesh kumar and  other officials.  He has  however,  accepted  his over-all responsibility  as the  Managing Director  for what has been  done. He fully supported and reiterated the reason assigned by  Sri Yogesh  Kumar for running the Plant between the said two dates.      The reason  given by  the respondents for operating the plant on  those days  is not  acceptable for  more than  one reason. Firstly,  the correctness  of the reason assigned by them is  disputed by  P.C.B. Secondly,  in their application dated April  2, 1993  addressed to the P.C.B., Mohan Meakins did never  say that it is necessary to run the plant for the aforesaid  reasons   nor  was   any  permission  sought  for operating the  plant for  a  few  days.  It  was  a  regular application for  grant of  consent on  the ground  that they have since  attained the  prescribed level of anti-pollution measures. Thirdly, no application was made to this Court for according such permission. Filing of a mere affidavit on 6th and 7th  April, 1993,  stating the  said reason,  did not by itself amount to granting such permission by this Court, nor could it operate to suspend the operation of the Order dated January 15,  1993. More important is the fact that according to the  Order of  this Court  dated  January  15,  1993  the industries which  did not  remove the  deficiencies by  21st March, 1993  had to  close down  with effect  from March 31, 1993. The  Mohan Meakin’s  plant was inspected by the P.C.B. officials sometime  in March,  1993 who found that the plant had  not  achieved  the  required  level  of  anti-pollution standards. A  formal order  of closure was served upon Mohan Meakins on  March 31,  1993 to  close down the plant. If the reason given  by Mohan  Meakins is  really true,  one  would expect Mohan  Meakins to approach the P.C.B. immediately for permission to  run the plant for a few days to eliminate the alleged causes  of de-stabilisation  of the  plant.  Indeed, once Mohan Meakins could not achieve the prescribed level of anti-pollution measures  by March 21, 1993, they should have known that  they will  have to  close down  the  plant  with effect from  March 31,  1993 in  terms of  the  Order  dated January 15,  1993. As prudent persons managing such a plant, they ought  to have started winding down operations so as to close it  altogether on and with effect from March 31, 1993. If they  had done  so, the  alleged  hazard  from  a  sudden closure would  not have  arisen. The  contemnors cannot  say that until  the formal order of closure was served upon them by the  P.C.B. on  December 31, 1993, they did not know that they would  have to  close down  with effect  from march 31, 1993, for  the P.C.B’s. order was only in terms of the Order of this  Court. For  all the above reasons, we are unable to accept the reasons put forward by the contemnors for running the plant  between 7th  and 11th  April, 1993. We are of the opinion that  the  said  act  on  their  part  is  in  clear violation of  the order  dated January  15, 1993.  They  are guilty of violating the said Order of this Court.      Now, coming  to the second charge of contempt comprised in obtaining  of consent  on April  21, 1993 and running the plant on  and with  effect from  21st/23rd April,  1993, the case against  the contemnors is that they obtained "consent"

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from the  P.C.B. on  April 21,  1993 and  started  operating their plant  on that  basis in  violation of the Order dated January 15, 1993.      Apart from  reiterating the  apology tendered  by them, the main  contention of  Sri F.S. Nariman is: Mohan Meakin’s plant was  closed on  and with  effect from  April  1,  1993 pursuant to  the Order of this Court dated January 15, 1993; the said  Order did  not, however,  preclude  or  bar  Mohan Meakins from  applying afresh  for consent  and from running their plant  if they  attained the  desired level  of  anti- pollution standards;  when their  plant was inspected by the Pollution Control  Board (P.C.B.  officials in  March, 1993, the pollution  levels were  said to  be slightly higher than those prescribed  by the  rules; that was rectified by April 2, 1993; accordingly they applied to the P.C.B. for grant of consent stating  that they  have now  attained  the  desired standards  of   anti-pollution;  in  response  to  the  said application, the  P.C.B. granted  consent on April 21, 1993; it is  true that P.C.B. stipulated in their order of consent that Mohan  Meakin’s plant shall attain the prescribed level of anti-pollution  standards by  December 31,  1993 but  for that Mohan  Meakins cannot  be held  responsible since  they themselves never  applied for  consent  subject  to  such  a condition nor  does the order or "consent" say that they had not achieved  the desired  level of  effluent treatment. Sri Nariman contended  that in  the above  circumstances,  Mohan Meakins or its officials cannot be said to have disobeyed or acted in  violation of  this Court’s Order dated January 15, 1993. Learned  counsel further  contended that so far as the last para  of the order of "consent" dated April 21, 1993 is concerned, it  was in Hindi and they bonafide understood the word "adheen"  to mean  "under". Even  if the  said word  is construed as  "subject to", even then the officials of Mohan Meakins cannot  be held  quality of  violating this  Court’s Order though  it is  possible to  suggest that it would have been desirable  for Mohan Meakins to apply to this Court for appropriate directions before starting their plant under and in pursuance  of the  aforesaid consent.  This argument,  no doubt, appears  attractive at  first sight  but it  does not stand a closer scrutiny. We may elaborate.      The  Order  dated  January  15,  1993  was  not  passed abruptly. It  was the culmination of a series of orders made by this  Court. On  the basis  of a  letter written  by  Sri Vineet Kumar,  this Court  had issued  notice  to  concerned industries including  Mohan Meakains.  In  response  to  the notice, Mohan  Meakins filed  an affidavit  on July 17, 1990 stating that  they  have  installed  an  effective  effluent treatment plant  and that  they are  not polluting the river Gomti in  any manner.  However, according  to the  affidavit filed by  P.C.B., Mohan  Meakins was  also  responsible  for seriously polluting  the water  in the  river.  They  stated [affidavit filed  on July  31, 1990]  that according  to the latest  analysis,   Mohan  Meakins   has  not  achieved  the prescribed standards.  On  6th  February,  1991  this  Court passed on Order asking the P.C.B. to verify all the relevant facts and  file a  fresh affidavit.  On 20th March, 1991 the Board filed an affidavit stating that the samples taken from Mohan Meakin’s  plant were  sent  for  analysis  to  Central Laboratories, Lucknow  and that  their report is awaited. On 2nd November, 1992 the Board filed an affidavit stating that though Mohan Meakins along with certain other industries has been  discharged   from  prosecution  on  account  of  their installing an  effluent treatment  plant,  the  analysis  of their discharge  established that they have not achieved the prescribed standards.  For that  reason, it  was stated, the

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consent applied  for by  Mohan Meakins  was refused. On 11th January, 1993  the Board  filed a  further affidavit stating that inspite  of the fact that the Board has refused consent to Mohan Meakins, they are continuing to operate their plant and are  discharging effluents  into Gomti  river  in  utter violation of  the pollution  control laws. [On 14th January, 1993 Mohan  Meakins filed  an affidavit  stating inter  alia that the  revised  standards  prescribed  by  the  Pollution Control Board  are unrealistic  and impracticable  and  that even  so  they  are  making  every  effort  to  reach  those standards.] It  is in the context of the above circumstances that the Order dated January 15, 1993 was passed. (The order has been re-produced in the Order dated November 8, 1995 and need not be repeated over again here.)      The facts aforestated indicate that notwithstanding the refusal of  consent by  the P.C.B.,  Mohan Meakins  has been running their  plant and  discharging effluents  into  Gomti river in  a brazen  manner. They  also disclose  that  Mohan Meakins had  not achieved  the  prescribed  level  of  anti- pollution standards  - not  even by  March 21,  1993, though they were  given time  till 21st  March,  1993  avowedly  to enable them  to achieve the prescribed standards. Since they could not  attain the  prescribed standards, their plant was ordered to be closed on and with effect from March 31, 1993. Having closed  down the  plant with  effect from  Ist April, 1993 they  came forward with an application on the very next day (on  April 2,  1993) addressed  to the  P.C.B. that they have achieved  the prescribed standards and must, therefore, be granted  the "consent"  to enable  them to re-start their operations. Curiously enough, the P.C.B. granted the consent on April 21, 1993 with a condition that Mohan Meakins should achieve the  prescribed standards  by December 31, 1993. The P.C.B. did  not inspect or verify the claim of Mohan Meakins that they  have already  achieved those  standards  nor  did Mohan Meakins  protest that since they have already attained the  prescribed   standards,  the   said   stipulation   was meaningless. As  pointed out  in our Order dated November 8, 1995, this  order of  "consent"  was  in  clear  and  direct violation of  the Order  dated January 15, 1993 and that the addition of  words that the "consent" granted was subject to the Orders of this Court was a mere ploy. Be that as it may, the plea  of the  contemnors that  they understood  the word "adheen" in  the said  order to  mean  "under"  is  ex-facie unacceptable. The  said consent  order  with  the  aforesaid stipulation was  in total  violation of  this Court’s  Order dated January  15, 1993  (to which  Mohan Meakins was also a party).  It  is  inconceivable  that  the  contemnors  could understand the  said consent  order as  having been  granted under  the   aforesaid  Order   of  this   Court.   In   the circumstances, the minimum that should have been done by the contemnors was  to  apply  to  this  Court  for  appropriate directions or  clarification, as  the case  may be,  in  the light of  the said "consent" and not to go ahead and restart plant on  the basis of the said consent. If they had applied to  this   Court  for  directions,  this  Court  could  have immediately pointed out that the grant of "consent" with the stipulation that  the plant  should achieve  the  prescribed standards by  December 31,  1993 was  plainly opposed to the Order dated  January 15,  1993 and  cannot stand. This Court could have  also verified  the claim of Mohan Meakins (about achieving the  prescribed standards  by April  2,  1993)  by ordering an  inspection. Evidently, the contemnors wanted to avoid all  this. They  did not wish to lose the illegitimate benefit conferred  upon them  by the  P.C.B. This  inference becomes reinforced  when we  look to the conduct of both the

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Mohan Meakins  and the  P.C.B. in trying to keep the fact of grant of  "consent" on  April 21,  1993 concealed  from this Court. The following facts establish the said attempt:      Sri Yogesh  Kumar and  Brig. Kapil  Mohan  filed  their affidavits in  this Court  on April 27, 1993 and May 1, 1993 respectively. But  in neither  affidavit  was  the  fact  of consent granted  by the  P.C.B. on April 21, 1993 mentioned. It is  interesting to  note that on May 4, 1993 an affidavit was filed  on behalf the P.C.B. in reply to the affidavit of Sri Yogesh  Kumar. In  this affidavit,  the Board denied the correctness and  validity of  the reason given by Sri Yogesh Kumar for  running the  plant between 7th and 11th of April, 1993, but there was no reference to the order of consent. In view of the lack of clarity in the aforesaid affidavits, Sri P.H. Parekh, Advocate, who was appointed as amicus curiae in this matter,  addressed a  letter dated  May 8,  1993 to the learned advocate  for Mohan Meakins asking him to clarify on what basis  Mohan Meakins  have re-started  the plant and to supply him  with the  orders, if any, passed by the Board in that behalf.  There was  no reply.  Hence, Sri Parekh sent a reminder on  May 14,  1993. On  October 8,  1993 this  Court passed an  order noticing  the grievance  of Sri Parekh that inspite of  his two letters, Mohan Meakins have not supplied to him  the necessary information and ordering Mohan Meakins to supply  the same.  A cost of Rs.10,000/- was also imposed upon the  company. It  is only  then that  an affidavit  was filed on  behalf of  the Mohan  Meakins on  October 24, 1993 disclosing the order of consent dated April 21, 1993. A copy of the  "consent" was enclosed to the affidavit. The anxiety to conceal  the "consent"  from this  Court is  not  without significance.  They  knew  that  it  was  granted  in  plain violation of  this Court’s  Order dated January 15, 1993 and were wary about disclosing it to this Court. Until forced by this Court to come out with it, they did not disclose it.      In all  the above  circumstances, we  cannot accept the plea that  Mohan Meakins  did not  violate the  Order  dated January 15,  1993 by  obtaining the  "consent" on  April 21, 1993 and by running their plant on that basis. It is obvious that  Mohan   Meakins  [and   some  other   industries]  and U.P.P.C.B. together  enacted a  charade -  one saying within one  day  ofcourse  that  it  had  achieved  the  prescribed standards  and   the  other  granting  the  consent  with  a stipulation that  the prescribed standards shall be achieved by the  end of  the year  1993. For this purpose, the P.C.B. relied upon  a Government  Order, which  it could  not,  for reasons assigned  in our  Order dated  November 8,  1995. We have already  found  the  ex-officio  Chairman  and  Member- Secretary of  the Board quality of contempt. In the light of the facts  aforesaid, we hold both the contemnors quality of violation of  this Court’s  Order dated January 15, 1993. We cannot also accept the unconditional apology tendered by the respondents. The  violation is a knowing one, deliberate and pre-planned. It  indicates a certain defiant attitude on the part of  Mohan Meakins,  I.e., contemnors.  Accordingly, the unconditional  apology   tendered  by   the  contemnors   is rejected.      Question then arises as to the punishment to be awarded to the  respondents-contemnors. While  contending  that  the respondents are not quality of contempt and that at the most it may be a case of error of judgment, Sri Nariman suggested that even  in case  the respondents  are  found  technically quality of  contempt  of  court,  this  Court  may  consider directing the  respondents to  pay an amount of about Rupees one lakh  to a  particular charity  or for some other public purpose and  that the respondents would be glad to do so. We

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have now  found the  respondents guilty of contempt of court not merely  in a  technical sense but in a real sense and on two counts. It may also be noticed that the running of Mohan Meakin’s plant  after April 21, 1993 pursuant to the consent obtained from  the U.P.P.C.B.  was a continuing violation of this Court’s  Order and  it continued  over a  long period - atleast till December 31, 1993, if not beyond. Invoking this Court’s power  to punish  for contempt  under Article 129 of the  Constitution   and  taking   into   consideration   the suggestion, or  the offer,  as  it  may  be  called  of  Sri nariman, and keeping in view all the facts and circumstances of the  case, we  impose a  compensatory fine of Rupees five lakhs to  be deposited in this Court within a period of four weeks from  today. On  such deposit being made, the contempt proceedings shall stand dropped. In default of such deposit, each of  the respondents  shall undergo  simple imprisonment for a  period of  one month. The amount, if deposited, shall be utilised  for purposes  connected with  the  cleaning  of Gomti river, for which orders will be passed by us after the deposit is made.      The contempt  notices are  accordingly disposed of. The respondents shall  pay a sum of Rs. 10,000/- by way of costs which shall  be paid  over into  Supreme Court Middle Income Legal Aid Society.