Case Summary
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Full Case Details
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 (see above).
- 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 the 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 Articles 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 51-A(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.
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 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.
129 - 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 Co-operation 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
130 R.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 v. Union of India, [AIR 1996 SC
1446], 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 v.
Union of India [AIR 1996 SC 2715] 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 environmental 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. - 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.
130 - The scope of Article 142 was considered in several decisions and recently in Supreme
Court Bar Association v. Union of India [AIR 1998 SC 1895] 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 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. - 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
exemplary 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 to be
issued to M/s. Span Motel to show cause why in addition to damages, exemplary damage 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.
