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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.