LAND MARK JUDGEMENT ON ENVIRONMENTAL POLLUTIONS BY CORPORATIONS -"The effluents are very difficult to treat as many of the pollutants present are refractory in nature. Setting up such highly polluting industry in a critical ground water area was essentially ill- conceived. The effluents seriously polluted the nearby drain and overflowed into Udaisagar main canal, severely corroding its cement-concrete lined bed and banks. The polluted waters also seriously degraded some agricultural land and damaged standing crops.

                                   1


                                                      REPORTABLE


              IN THE SUPREME COURT OF INDIA



                 CIVIL ORIGINAL JURISDICTION



                     IA NO.36 AND IA NO.44

                                  IN

              WRIT PETITION (C) No.967 OF 1989



Indian Council for Enviro-Legal Action                ... Petitioners



           Versus



Union of India & Others                              ... Respondents





                          JUDGMENT



Dalveer Bhandari, J.


1.    This is a very unusual and extraordinary litigation where



even after fifteen years of the final judgment of this court (date



of   judgment   13th  February,   1996)   the   litigation   has   been



deliberately kept alive by filing one interlocutory application or



the other in order to avoid compliance of the judgment.   The



said judgment of this Court has not been permitted to acquire



finality till date.  This is a classic example how by abuse of the



process of law even the final judgment of the apex court can


                                        2


be  circumvented  for  more than a decade and  a  half.   This is



indeed   a   very   serious   matter   concerning   the   sanctity   and



credibility   of   the   judicial   system   in   general   and   of   the   apex



court in particular.




2.    An   environmentalist   organisation   brought   to   light   the



sufferings and woes of people living in the vicinity of chemical



industrial   plants   in   India.     This   petition   relates   to   the



suffering   of   people   of   village   Bichhri   in   Udaipur   District   of



Rajasthan.     In   the   Writ     Petition   No.967   of   1989,   it   was



demonstrated how the conditions of a peaceful, nice and small



village   of   Rajasthan   were   dramatically   changed   after



respondent   no.   4   Hindustan   Agro   Chemicals   Limited   started



producing certain chemicals like Oleum (concentrated form of



sulphuric   acid)   and   Single   Super   Phosphate.   Respondent



numbers   4   to   8   are   controlled   by   the   same   group   and   they



were   known   as   chemical   industries.     The   entire   chemical



industrial   complex   is   located   within   the   limits   of   Bichhri



village, Udaipur, Rajasthan. Pursuit of profit of entrepreneurs


                                      3


has   absolutely   drained   them   of   any   feeling   for   fellow   human



beings living in that village.



3.    The basic facts of this case are taken from the judgment



delivered   in   the   Writ   Petition   No.967   of   1989.     In   the



beginning of the judgment of this court delivered on February



13, 1996, it is observed as under:



            "It highlights the disregard, nay, contempt for

      law   and   lawful   authorities   on   the   part   of   some

      among the emerging breed of entrepreneurs, taking

      advantage,   as   they   do,   of   the   country's   need   for

      industrialisation   and   export   earnings.   Pursuit   of

      profit has absolutely drained them of any feeling for

      fellow human beings - for that matter, for anything

      else.   And   the   law   seems   to   have   been   helpless.

      Systemic   defects?   It   is   such   instances   which   have

      led   many   people   in   this   country   to   believe   that

      disregard of law pays and that the consequences of

      such   disregard   will   never   be   visited   upon   them

      -particularly,   if   they   are   men   with   means.   Strong

      words   indeed   -   but   nothing   less   would   reflect   the

      deep   sense   of   hurt,   the   hearing   of   this   case   has

      instilled in us."



4.    It   seems   that   the   court   was   prophetic   when   it   made



observation   that   at   times   men   with   means   are   successful   in



avoiding compliance of the orders of this court.  This case is a



classic   illustration  where   even  after   decade  and  a  half   of  the


                                        4


pronouncement   of   the   judgment   by   this   court   based   on   the



principle   of   `polluter   pays',   till   date   the   polluters   (concerned



industries   in   this   case)   have   taken   no   steps   to   ecologically



restore   the   entire   village   and   its   surrounding   areas   or



complied with the directions of this court at all.  The orders of



this court were not implemented by keeping the litigation alive



by   filing   interlocutory   and   interim   applications   even   after



dismissal   of   the   writ   petition,   the   review   petition   and   the



curative petition by this court.




5.    In the impugned judgment, it is mentioned that because



of  the  pernicious  wastes  emerging   from   the  production   of  'H'



acid,   its   manufacture   is   stated   to   have   been   banned   in   the



western   countries.   But   the   need   of   'H'   acid   continues   in   the



West   and   that   need   is   catered   to   by   the   industries   like   the



Silver Chemicals and Jyoti Chemicals in this part of the world.




6.    In   the   impugned   judgment,   it   is   also   mentioned   that



since   the   toxic   untreated   waste   waters   were   allowed   to   flow



out freely and because the untreated toxic sludge was thrown



in the open in and around the complex, the toxic substances


                                       5


have percolated deep into the bowels of the earth polluting the



aquifers and the sub-terrain supply of water. The water in the



wells and the streams has turned dark and dirty rendering it



unfit for human consumption. It has become unfit for cattle to



drink and for irrigating the land. The soil has become polluted



rendering it unfit for cultivation, which is the main source of



livelihood   for   the   villagers.   The   resulting   misery   to   the



villagers   needs   no   emphasis.   It   spreads   disease,   death   and



disaster in the village and the surrounding areas. This sudden



degradation of earth and water had an echo in Parliament too



and the concerned Minister said that action was being taken,



but   nothing   meaningful   was   done   on   the   spot.   The   villagers



then rose in virtual revolt leading to the imposition of Section



144  of the Criminal Procedure Code by the District Magistrate



in   the   area   and   the   closure   of   Silver   Chemicals   in   January,



1989.   It   is   averred   by   the   respondents   that   both   the   units,



Silver   Chemicals   and   Jyoti   Chemicals   have   stopped



manufacturing   'H'   acid   since   January,   1989   and   are   closed.



We   may   assume   it   to   be   so,     yet   the   consequences   of   their



action remain - the sludge, the long-lasting damage to earth,


                                             6


to   underground   water,   to   human   beings,   to   cattle   and   the



village economy.




7.      The   Rajasthan   State   Pollution   Control   Board   (for   short



"R.S.P.C.B.")   in   pursuance   of   the   show   cause   notice   filed   a



counter affidavit and stated the following averments:




(a)        Re.:       Hindustan   Agro   Chemicals   Limited

           (respondent   for   short)   [R-4]:   The   unit   obtained

           'No-Objection Certificate' from the R.S.P.C.B. for

           manufacturing   sulphuric   acid   and   Aluminum

           sulphate.   The   Board   granted   clearance   subject

           to   certain   conditions.   Later   'No-Objection

           Certificate'   was   granted   under   the   Water

           [Prevention   and   Control   of   Pollution]   Act,   1974

           [Water   Act]   and   Air   (Prevention   and   Control   of

           Pollution)   Act,   1981   [Air   Act],   again   subject   to

           certain   conditions.   However,   this   unit   changed

           its   product   without   clearance   from   the   Board.

           Instead          of         sulphuric         acid,         it         started

           manufacturing   Oleum   and   Single   Super

           Phosphate   [S.S.P.].   Accordingly,   consent   was

           refused   to   the   unit   on   February   16,   1987.

           Directions   were   also   issued   to   close   down   the

           unit.


(b)        Re.:  Silver   Chemicals  [R-5]:   This   unit   was

           promoted   by   the   fourth   respondent   without

           obtaining   'No-Objection   Certificate'   from   the

           Board for the manufacture of 'H' acid. The waste

           water generated from the manufacture of 'H' acid

           is   highly   acidic   and   contains   very   high

           concentration   of   dissolved   solids   along   with

           several   dangerous   pollutants.   This   unit   was


                                    7


        commissioned   in   February,   1988   without

        obtaining   the   prior   consent   of   the   Board   and

        accordingly, notice of closure was served on April

        30, 1988. On May 12, 1988, the unit applied for

        consent   under   Water   and   Air   Acts   which   was

        refused. The Government was requested to issue

        directions for cutting off the electricity and water

        to   this   unit   but   no   action   was   taken   by   the

        Government.   The   unit   was   found   closed   on   the

        date of inspection, viz., October 2, 1989.


(c)     Re.:  Rajasthan   Multi   Fertilizers  [R-6]:   This   unit

        was   installed   without   obtaining   prior   'No-

        Objection   Certificate'   from   the   Board   and

        without   even   applying   for   consent   under   Water

        and  Air  Acts.  Notice  was  served  on  this  unit  on

        February   20,   1989.   In   reply   thereto,   the   Board

        was informed that the unit was closed since last

        three years and that electricity has also been cut

        off since February 12, 1988.


(d)     Re.:  Phosphates   India  [R-7]:   This   unit   was   also

        established   without   obtaining   prior   'No-

        Objection   Certificate'   from   the   Board   nor   did   it

        apply for consent under the Water and Air Acts.

        When   notice   dated   February   20,   1989   was

        served   upon   this   unit,   the   Management   replied

        that this unit was closed for a long time.


(e)     Re.:  Jyoti Chemicals  [R-8]:  This unit applied for

        'No-Objection   Certificate'   for   producing   ferric

        alum.   'No-Objection   Certificate'   was   issued

        imposing   various   conditions   on   April   8,   1988.

        The  'No-Objection Certificate'  was withdrawn on

        May   30,   1988   on   account   of   non-compliance

        with   its   conditions.   The   consent   applied   for

        under  Water  and  Air  Acts  by  this unit   was  also

        refused. Subsequently, on February 9, 1989, the

        unit applied for fresh consent for manufacturing


                                       8


          'H'   acid.   The   consent   was   refused   on   May   30,

          1989. The Board has been keeping an eye upon

          this   unit   to   ensure   that   it   does   not   start   the

          manufacture   of   'H'   acid.   On   October   2,   1989,

          when   the   unit   was   inspected,   it   was   found

          closed.


8.     The   Government   of   Rajasthan   filed   counter-affidavit   on



January 20, 1990. The Para 3 of the affidavit reads as under:-




          "That the State Government is now aware of the

          pollution of under-ground water being caused by

          liquid   effluents   from   the   firms   arrayed   as

          Respondent   Nos.   4   to   8   in   the   writ   petition.

          Therefore,   the   State   Government   has   initiated

          action   through   the   Pollution   Control   Board   to

          check further spread of pollution."





9.     The   State   Government   stated   that   the   water   in   certain



wells   in   Bichhri   village   and   some   other   surrounding   villages



has   become   unfit   for   drinking   for   human   beings   and   cattle,



though in some other wells, the water remains unaffected.




10.    The Ministry of Environment and Forests, Government of



India   (for   short   `MOEF')   in   its   counter   affidavit   filed   on



February   8,   1990   stated   that   M/s.   Silver   Chemicals   was



merely   granted   a   Letter   of   Intent   but   it   never   applied   for



conversion   of   the   Letter   of   Intent   into   industrial   licence.


                                       9


Commencing production before obtaining industrial licence is



an   offence   under   Industries   [Development   and   Regulation]



Act, 1951. So far as M/s. Jyoti Chemicals is concerned, it is



stated that it has not approached the Government at any time



even   for   a   Letter   of   Intent.   The   Government   of   India   stated



that in June, 1989, a study of the situation in Bichhri village



and   some   other   surrounding   villages   was   conducted   by   the



Centre   for   Science   and   Environment.   A   copy   of   their   report



was enclosed with the counter affidavit. The report states the



consequences  emanating from  the  production  of  'H'  acid  and



the manner in which the resulting wastes were dealt with by



Respondents Nos. 4 to 8 thus:




      "The effluents are very difficult to treat as many of

      the   pollutants   present   are   refractory   in   nature.

      Setting   up   such   highly   polluting   industry   in   a

      critical   ground   water   area   was   essentially   ill-

      conceived.   The   effluents   seriously   polluted   the

      nearby   drain   and   overflowed   into   Udaisagar   main

      canal,   severely   corroding   its   cement-concrete   lined

      bed   and   banks.   The   polluted   waters   also   seriously

      degraded   some   agricultural   land   and   damaged

      standing   crops.   On   being   ordered   to   contain   the

      effluents, the industry installed an unlined holding

      pond   within   its   premises   and   resorted   to   spraying

      the   effluent   on   the   nearby   hill-slope.   This   only

      resulted in extensive seepage and percolation of the


                                      10


       effluents   into  ground   water   and   their   spread  down

       the   aquifers.   Currently   about   60   wells   appear   to

       have   been   significantly   polluted   but   every   week   a

       few   new   wells,   down   the   aquifers   start   showing

       signs   of   pollution.   This   has   created   serious

       problems   for   water   supply   for   domestic   purposes,

       cattle-watering   crop   irrigation   and   other   beneficial

       uses,   and   it   has   also   caused   human   illness   and

       even   death,   degradation   of   land   and   damage   to

       fruit,   trees   and   other   vegetation.   There   are   serious

       apprehensions   that   the   pollution   and   its   harmful

       effects   will   spread   further   after   the   onset   of   the

       monsoon   as   the   water   percolating   from   the   higher

       parts   of   the   basin   moves   down   carrying   the

       pollutants lying on the slopes - in the holding pond

       and those already underground."




11.    This   court   passed   number   of   orders   during   the   period



1989-1992.




12.    On   February   17,   1992,   this   Court   passed   a   fairly



elaborate   order   observing   that   respondent   nos.   5   to   8   are



responsible   for   discharging   the   hazardous   industrial   wastes;



that   the   manufacture   of   'H'   acid   has   given   rise   to   huge



quantities  of iron sludge and gypsum sludge  - approximately



2268 MT of gypsum-based sludge and about 189 mt. of iron-



based   sludge;   that   while   the   other   respondents   blamed



respondent   no.9   as   the   main   culprit   but   respondent   no.   9


                                      11


denied  any   responsibility,   therefore,   according   to  the   Courts,



the   immediate   concern   was   the   appropriate   remedial   action.



The report of the R.S.P.C.B. presented a disturbing picture. It



stated   that   the   respondents   have   deliberately   spread   the



hazardous   material/sludge   all  over   the   place   which   has  only



heightened   the   problem   of   its   removal   and   that   they   have



failed to carry out the orders of this Court dated April 4, 1990.



Accordingly,   this   Court   directed   the   MOEF   to   depute   its



experts   immediately   to   inspect   the   area   to   ascertain   the



existence and extent of gypsum-based and iron-based sludge,



to   suggest   the   handling   and   disposal   procedures   and   to



prescribe   a   package   for   its   transportation   and   safe   storage.



The   cost   of   such   storage   and   transportation   was   to   be



recovered from the concerned respondents.




13.    Pursuant   to   the   above   order,   a   team   of   experts   visited



the area and submitted a report along with an affidavit dated



March   30,   1992.   The   report   presented   a   highly   disturbing



picture. It stated that the sludge was found inside a shed and



also at four places outside the shed but within the premises of


                                       12


the   complex   belonging   to   the   respondents.   It   further   stated



that the sludge has been mixed with soil and at many places



it is covered with earth. A good amount of sludge was said to



be lying exposed to sun and rain.




14.    The   report   stated:   "Above   all,   the   extent   of   pollution   in



the   ground   water   seems   to   the   very   great   and   the   entire



aquifer   may   be   affected   due   to   the   pollution   caused   by   the



industry.   The   organic   content   of   the   sludge   needs   to   be



analysed   to   assess   the   percolation   property   of   the   contents



from the sludge. It is also possible that the iron content in the



sludge   may   be   very   high   which   may   cause   the   reddish



colouration. As the mother liquor produced during the process



(with   pH-1)   was   highly   acidic   in   nature   and   was



indiscriminately discharged on land by the unit, it is possible



that   this   might   have   eroded   soil   and   caused   the   extensive



damage.   It   is   also   possible   that   the   organic   contents   of   the



mother   liquor   would   have   gone   into   soil   with   water   together



with the reddish colour." The report also suggested the mode


                                       13


of   disposal   of   sludge   and   measures   for   re-conditioning   the



soil.




15.       In view of the above report, the Court made an order on



April 6, 1992 for entombing the sludge under the supervision



of  the officers  of the  MOEF. Regarding revamping of  the soil,



the   Court   observed   that   for   this   purpose,   it   might   become



necessary to stop or suspend the operation of all the units of



the   respondent   but   that,   the   Court   said,   requires   to   be



examined further.




16.       The   work   of   entombment   of   sludge   again   faced   several



difficulties.   While   the   respondents   blamed   the   Government



officers for the delay, the Government officials blamed the said



respondents   of   non-cooperation.   Several   Orders   were   passed



by   this   Court   in   that   behalf   and   ultimately,   the   work



commenced.




Orders passed in 1993, filing of Writ Petition (C) No. 76 of

1994 by Respondent No. 4 and the orders passed therein:


17.       With   a   view   to   find   out   the   connection   between   the



wastes   and   sludge   resulting   from   the   production   of   'H'   acid


                                      14


and   the   pollution   in   the   underground   water,   the   Court



directed on 20th August, 1993 that samples should be taken



of the entombed sludge and also of the water from the affected



wells and sent for analysis. Environment experts of the MOEF



were asked to find out whether the pollution in the well water



was   on   account   of   the   said   sludge   or   not.   Accordingly,



analysis was conducted and the experts submitted the Report



on   November   1,   1993.   Under   the   heading   "Conclusion",   the



report stated:




      5.0 Conclusion


      5.1   On   the   basis   of   the   observations   and   analysis

      results,   it   is   concluded   beyond   doubt   that   the

      sludge   inside   the   emoted   pit   is   the   contaminated

      one   as   evident   from   the   number   of   parameters

      analysed.


      5.2   The   ground   water   is   also   contaminated   due   to

      discharge of H- acid plant effluent as well as H-acid

      sludge/contaminated soil leachiest as shown in the

      photographs and also supported by the results. The

      analysis   result   revealed   good   correlation   between

      the   colour   of   well   water   and   H-acid   content   in   it.

      The analysis results show high degree of impurities

      in   sludge/soil   and   also   in   well   water   which   is   a

      clear indication of contamination of soil and ground

      water due to disposal of H-acid waste.


                                15


The report which is based upon their inspection of

the   area   in   September,   1993   revealed   many   other

alarming   features.   It   represents   a   commentary   on

the   attitude   and   actions   of   the   respondents.   In

Para-2,   under   the   heading   "Site   Observations   &

Collection   of   Sludge/Contaminated   Soil   Samples",

the following facts are stated:


2.1.   The   Central   team,   during   inspection   of   the

premises   of   M/s.   HACL,   observed   that   H-acid

sludge (iron gypsum) and contaminated soil are still

lying   at   different   places,   as   shown   in   Figure   1,

within the industrial premises(Photograph 1) which

are   the   left   overs.   The   area,   where   the   solar

evaporation   pond   was   existing   with   H-acid   sludge

dumped here and there, was observed to have been

leveled   with   borrowed   soil   (Photograph   2).   It   was

difficult   to   ascertain   whether   the   sludge   had   been

removed   before   filling.   However,   there   are   visual

evidences of contaminated soil in the area.


2.2   As   reported   by   the   R.S.P.C.B.   representatives,

about 720 tonnes out of the total contaminated soil

and   sludge   scraped   from   the   sludge   dump   sites   is

disposed   of   in   six   lined   entombed   pits   covered   by

lime/flash   mix,   brick   soling   and   concrete

(Photographs were placed on record). The remaining

scraped   sludge   and   contaminated   soil   was   lying

near   the   entombed   pits   for   want   of   additional

disposal   facility.   However,   during   the   visit,   the   left

over   sludge   and   contaminated   soil   could   not   be

traced   at   site.   Inspection   of   the   surrounding   area

revealed that a huge heap of foreign soil of 5 metre

height   heap   of   foreign   soil   of   5   metre   height

(Photograph was placed on record) covering a large

area,  as  also  indicated   in  Fig.   I,  was  raised  on the

sloppy   ground   at   the   foot   hill   within   the   industry

premises. The storm water run-off pathway over the

area   showed   indication   of   H-acid   sludge   leachate


                                 16


coming   out   of   the   heap.   Soil   in   the   area   was

sampled for analysis.


2.3   M/s.   HACL   has   a   number   of   other   industrial

units which are operating within the same premises

without   valid   consents   from   the   R.S.P.C.B.   These

plants   are   sulphuric   acid   (H2SO4),   fertilizer   (SSP)

and   vegetable   oil   extraction.   The   effluents   of   these

units   are   not   properly   treated   and   the   untreated

effluent   particularly   from   the   acid   plant   is   passing

through   the   sludge   dump   area   playing   havoc

(Photograph   was   placed   on   record).   The   final

effluent   was   collected   at   the   outlet   of   the   factory

premises   during   operation   of   these   units,   at   the

time of groundwater monitoring in September 1993,

by the RSPCB. Its quality was observed to be highly

acidic (pH : 1.08, Conductivity : 37,100 mg/1, SO4

:   21,000   mg/1,   Fe   :   392   mg/1,   COD   :   167   mg/1)

which   was   also   revealed   in   the   earlier   visits   of   the

Central   teams.   However,   these   units   were   not   in

operation during the present visit.


Under Para 4.2.1, the report stated inter alia:


The   sludge   samples   from   the   surroundings   of   the

(presently   nonexistent)   solar   evaporation   and   the

contaminated   soil   due   to   seepage   from   the   newly

raised dump site also exhibited very high values of

the above mentioned parameters. This revealed that

the   contaminated   soil   is   buried   under   the   new

dump found by the team.


25.   So   much   for   the   waste   disposal   by   the

respondents and their continuing good conduct. To

the   same   effect   is   the   Report   of   the   R.S.P.C.B.

which is dated October 30, 1993.


26.   In   view   of   the   aforesaid   Reports,   all   of   which

unanimously point out the consequences of the 'H'


                               17


acid   production,   the   manner   in   which   the   highly

corrosive   waste   water   (mother   liquor)   and   the

sludge resulting from the production of 'H' acid was

disposed  of  and   the   continuing  discharge   of  highly

toxic   effluents   by   the   remaining   units   even   in   the

year   1993,   the   authorities   [R.S.P.C.B.]   passed

orders   closing   down,   in   exercise   of   their   powers

Under Section 33A of the Water Act, the operation of

the Sulphuric Acid Plant and the solvent extraction

plant including oil refinery of the fourth respondent

with   immediate   effect.   Orders   were   also   passed

directing   disconnection   of   electricity   supply   to   the

said plants.


The fourth respondent filed Writ Petition (C) No. 76

of   1994   in   this   Court,   under   Article  32  of   the

Constitution,   questioning   the   said   Orders   in

January,   1994.   The   main   grievance   in   this   writ

petition   was   that   without   even   waiting   for   the

petitioner's   [Hindustan   Agro   Chemicals   Limited]

reply   to   the   show-cause   notices,   orders   of   closure

and disconnection of electricity supply were passed

and   that   this   was   done   by   the   R.S.P.C.B.   with   a

malafide intent to cause loss to the industry. It was

also submitted  that sudden closure of  its plants  is

likely   to   result   in   disaster   and,   may   be,   an

explosion and that this consideration was not taken

into account while ordering the closure. In its Order

dated   March   7,   1994,   this   Court   found   some

justification   in   the   contention   of   the   industry   that

the various counter-affidavits filed by the R.S.P.C.B.

are   self-contradictory.   The   Board   was   directed   to

adopt   a   constructive   attitude   in   the   matter.   By

another   Order   dated   March   18,   1994,   the

R.S.P.C.B.   was   directed   to   examine   the   issue   of

grant   of   permission   to   re-start   the   industry   or   to

permit any interim arrangement in that behalf. On

April   8,   1994,   a   'consent'   order   was   passed

whereunder   the   industry   was  directed   to  deposit  a


                                       18


       sum   of   Rupees   sixty   thousand   with   R.S.P.C.B.

       before   April   11,   1994   and   the   R.S.P.C.B.   was

       directed   to   carry   on   the   construction   work   of

       storage   tank   for   storing   and   retaining   ten   days

       effluents   from   the   Sulphuric   Acid   Plant.   The

       construction of temporary tank was supposed to be

       an interim measure pending the construction of an

       E.T.P.   on   permanent   basis.   The   Order   dated   April

       28, 1994 noted the Report of the R.S.P.C.B. stating

       that   the   construction   of   temporary   tank   was

       completed on April 26, 1994 under its supervision.

       The   industry   was   directed   to   comply   with   such

       other   requirements   as   may   be   pointed   out   by

       R.S.P.C.B.   for   prevention   and   control   of   pollution

       and   undertake   any   works   required   in   that   behalf

       forthwith.   Thereafter,   the   matter   went   into   a

       slumber until October 13, 1995.





       NEERI REPORT:


       27. At this juncture, it would be appropriate to refer

       to the Report submitted by NEERI on the subject of

       "Restoration   of   Environmental   Quality   of   the

       affected   area   surrounding   Village   Bichhri   due   to

       past   Waste   Disposal   Activities".   This   Report   was

       submitted   in   April,   1994   and   it   states   that   it   is

       based   upon   the   study   conducted   by   it   during   the

       period   November,   1992   to   February,   1994.   Having

       regard   to   its   technical   competence   and   reputation

       as   an   expert   body   on   the   subject,   we   may   be

       permitted to refer to its Report at some length:




18.    The   judgment   also   dealt   with   damaging   of   crops   and



fields.     The   finding   of   the   Court   was   that         the   entire


                                        19


contaminated   area   comprising   of   350   hectares   of



contaminated land and six abandoned dump sites outside the



industrial   premises   has   been   found   to   be   ecologically   fragile



due   to   reckless   past   disposal   activities   practised   by   M/s.



Silver   Chemicals   Ltd.   and   M/s.   Jyoti   Chemicals   Ltd.



Accordingly,   it   is   suggested   that   the   whole   of   the



contaminated area be developed as a green belt at the expense



of M/s. Hindustan Agrochemicals Ltd. during the monsoon of



1994.




19.    Mr.   Shanti   Bhushan,   learned   senior   counsel   appearing



for   the   respondents-industries   made   the   following



submissions:




       (1)     The  respondents are private  corporate  bodies.

               They   are   not   'State'   within   the   meaning   of

               Article  12  of   the   Constitution.   A   writ   petition

               under Article  32 of the Constitution, therefore,

               does not lie against them.


       (2)     The   RSPCB   has   been   adopting   a   hostile

               attitude   towards   these   respondents   from   the

               very beginning. The Reports submitted by it or

               obtained   by   it   are,   therefore,   suspect.   The

               respondents   had   no   opportunity   to   test   the

               veracity of the said Reports. If the matter had

               been fought out in a properly constituted suit,


                                  20


        the   respondents   would   have   had   an

        opportunity   to   cross-examine   the   experts   to

        establish   that   their   Reports   are   defective   and

        cannot be relied upon.;


(3)     Long   before   the   respondents   came   into

        existence, Hindustan Zinc Limited was already

        in   existence   close   to   Bichhri   village   and   has

        been   discharging   toxic   untreated   effluents   in

        an unregulated manner. This had affected the

        water in the wells, streams and aquifers. This

        is borne out by the several Reports made long

        prior to 1987. Blaming the respondents for the

        said   pollution   is   incorrect   as   a   fact   and

        unjustified.


(4)     The   respondents   have   been   cooperating   with

        this   Court   in   all   matters   and   carrying   out   its

        directions   faithfully.   The   Report   of   the

        R.S.P.C.B.   dated   November   13,   1992   shows

        that   the   work   of   entombment   of   the   sludge

        was   almost   over.   The   Report   states   that   the

        entire   sludge   would   be   stored   in   the

        prescribed   manner   within   the   next   two   days.

        In   view   of   this   report,   the   subsequent   Report

        of   the   Central   team,   R.S.P.C.B.     and   NEERI

        cannot   be   accepted   or   relied   upon.   There   are

        about 70 industries in India manufacturing 'H'

        acid.   Only   the   units   of   the   respondents   have

        been   picked   upon   by   the   Central   and   Sate

        authorities   while   taking  no  action  against   the

        other   units.  Even   in  the   matter   of  disposal   of

        sludge,  the directions given for its  disposal in

        the case of other units are not as stringent as

        have   been   prescribed   in   the   case   of

        respondents. The decision of the Gujarat High

        Court   in   Pravinbhai   Jashbhai   Patel   case

        shows   that the   method   of  disposal  prescribed


                                 21


        there   is   different   and   less   elaborate   than   the

        one prescribed in this case.


(5)     The   Reports   submitted   by   the   various   so-

        called   expert   committees   that   sludge   is   still

        lying   around   within   and   outside   the

        respondents'   complex   and/or   that   the   toxic

        wastes   from   the   Sulphuric   Acid   Plant   are

        flowing   through   and   leaching   the   sludge   and

        creating   a   highly   dangerous   situation   is

        untrue and incorrect. The R.S.P.C.B. itself had

        constructed   a   temporary   E.T.P.   for   the

        Sulphuric   Acid   Plant   pursuant   to   the   Orders

        of this Court made in Writ Petition (C) No. 76

        of   1994.   Subsequently,   a   permanent   E.T.P.

        has   also   been   constructed.   There   is   no

        question   of   untreated   toxic   discharges   from

        this   plant   leaching   with   sludge.   There   is   no

        sludge   and   there   is   no   toxic   discharge   from

        the Sulphuric Acid Plant.


(6)     The   case   put   forward   by   the   R.S.P.C.B.   that

        the   respondents'   units   do   not   have   the

        requisite   permits/   consents   required   by   the

        Water   Act,   Air   Act   and   the   Environment

        [Protection]   Act   is   again   unsustainable   in   law

        and incorrect as a fact. The respondents' units

        were   established   before   the   amendment   of

        Section  25  of the Water Act and, therefore did

        not   require   any   prior   consent   for   their

        establishment.


(7)     The   proper   solution   to   the   present   problem

        lies   in   ordering   a   comprehensive   judicial

        enquiry by a sitting Judge of the High court to

        find out the causes of pollution in this village

        and   also   to   recommend   remedial   measures

        and to estimate the loss suffered by the public

        as   well   as   by   the   respondents.   While   the


                                        22


               respondents   are   prepared   to   bear   the   cost   of

               repairing the damage, if any, caused by them,

               the R.S.P.C.B. and other authorities should be

               made   to   compensate   for   the   huge   losses

               suffered   by   the   respondents   on   account   of

               their   illegal   and   obstructionist   policy   adopted

               towards them.


       (8)     The   decision   in   Oleum   Gas   Leak.   Case   has

               been   explained   in   the   opinion   of   Justice

               Ranganath   Misra,   CJ.,   in   the   decision   in

               Union Carbide Corporation etc. etc. v. Union

               of   India  etc.   etc.  AIR   1992   SC   248.     The   law

               laid   down   in   Oleum   Gas   leak   Case   is   at

               variance with the established legal position in

               other Commonwealth countries.




20.    The Court dealt with the submissions of the respondents



in great detail and did not find any merit in the same.




21.    In   the   impugned   judgment,   the   Court   heavily   relied   on



the observations of the Constitution Bench judgment in  M.C.


Mehta and Another   v.   Union of India and Others  (1987)


1   SCC   395  popularly   known   as  Oleum   Gas   Leak   Case,



wherein it was held thus:




       "We   are   of   the   view   that   an   enterprise   which   is

       engaged   in   a   hazardous   or   inherently   dangerous

       industry   which   poses   a   potential   threat   to   the

       health   and   safety   of   the   persons   working   in   the

       factory and residing in the surrounding areas owes


                                   23


an   absolute   and   non-delegable   duty   to   the

community   to   ensure   that   no   harm   results   to

anyone   on   account   of   hazardous   or   inherently

dangerous   nature   of   the   activity   which   it   has

undertaken.   The   enterprise   must   be   held   to   be

under   an   obligation   to   provide   that   the   hazardous

or   inherently   dangerous   activity   in   which   it   is

engaged   must   be   conducted   with   the   highest

standards   of   safety   and   if   any   harm   results   on

account   of   such   activity,   the   enterprise   must   be

absolutely liable to compensate for such harm and

it should be no answer to the enterprise to say that

it had taken all reasonable care and that the harm

occurred   without   any   negligence   on  its   part.   Since

the persons harmed on account of the hazardous or

inherently   dangerous   activity   carried   on   by   the

enterprise would not be in a position to isolate the

process   of   operation   from   the   hazardous

preparation   of   substance   or   any   other   related

element  that caused the harm  the  enterprise  must

be   held   strictly   liable   for   causing   such   harm   as   a

part of the social cost for carrying on the hazardous

or inherently dangerous activity. If the enterprise is

permitted   to   carry   on   an   hazardous   or   inherently.

dangerous   activity   for   its   profit,   the   law   must

presume that such permission is conditional on the

enterprise   absorbing   the   cost   of   any   accident

arising on account of such hazardous or inherently

dangerous   activity   as   an   appropriate   item   of   its

overheads.          Such         hazardous         or         inherently

dangerous activity for private profit can be tolerated

only   on   condition   that   the   enterprise   engaged   in

such   hazardous   or   inherently   dangerous   activity

indemnifies   all   those   who   suffer   on   account   of   the

carrying   on   of   such   hazardous   or   inherently

dangerous   activity   regardless   of   whether   it   is

carried   on   carefully   or   not....We   would   therefore

hold   that   where   an   enterprise   is   engaged   in   a

hazardous   or   inherently   dangerous   activity   and


                                       24


       harm   results   to   anyone   on   account   of   an   accident

       in   the   operation   of   such   hazardous   or   inherently

       dangerous activity  resulting for  example,  in escape

       of toxic gas the enterprise is strictly and absolutely

       liable   to   compensate   all   those   who   are   affected   by

       the accident and such liability is not subject to any

       of   the   exceptions   which   operate   vis-`-vis   the

       tortuous principle of strict liability under the rule in

       Ryland v. Fletcher (1868) LR 3 HL 330.


       We would also like to point out that the measure of

       compensation in the kind of cases referred to in the

       preceding   paragraph   must   be   corelated   to   the

       magnitude   and   capacity   of   the   enterprise   because

       such   compensation   must   have   a   deterrent   effect.

       The larger and more prosperous the enterprise, the

       greater   must   be   the   amount   of   compensation

       payable by it for the harm caused on account of an

       accident   in   the   carrying   on   of   the   hazardous   or

       inherently dangerous activity by the enterprise."




22.    This court in M.C. Mehta's case (supra) further observed



as under:




       31.     We   must   also   deal   with   one   other   question

       which   was   seriously   debated   before   us   and   that

       question is as to what is the measure of liability of

       an enterprise which is engaged in an hazardous or

       inherently   dangerous   industry,   if   by   reason   of   an

       accident occurring in such industry, persons die or

       are   injured.   Does   the   rule   in  Rylands   v.   Fletcher

       apply   or   is   there   any   other   principle   on   which   the

       liability can be determined? The rule in Rylands v.

       Fletcher  was   evolved   in   the   year   1866   and   it

       provides   that   a   person   who   for   his   own   purposes

       brings  on  to  his  land  and  collects   and  keeps  there


                                 25


anything   likely   to   do   mischief   if   it   escapes   must

keep it at his peril and, if he fails to do so, is prima

facie   liable   for   the   damage   which   is   the   natural

consequence   of   its   escape.   The   liability   under   this

rule   is   strict   and   it   is   no   defence   that   the   thing

escaped without that person's wilful act, default or

neglect   or   even   that   he   had   no   knowledge   of   its

existence. This rule laid down a principle of liability

that   if   a   person   who   brings   on   to   his   land   and

collects and keeps there anything likely to do harm

and   such   thing   escapes   and   does   damage   to

another, he is liable to compensate for the damage

caused.   Of   course,   this   rule   applies   only   to   non-

natural   user   of   the   land   and   it   does   not   apply   to

things naturally on the land or where the escape is

due to an act of God and an act of a stranger or the

default   of   the   person   injured   or   where   the   thing

which   escapes   is   present   by   the   consent   of   the

person   injured   or   in   certain   cases   where   there   is

statutory   authority.   Vide   Halsbury   Laws   of

England, Vol. 45 para 1305. Considerable case law

has developed in England as to what is natural and

what   is   non-natural   use   of   land   and   what   are

precisely the circumstances in which this rule may

be   displaced.   But   it   is   not   necessary   for   us   to

consider   these   decisions   laying   down   the

parameters   of   this   rule   because   in   a   modern

industrial   society   with   highly   developed   scientific

knowledge   and   technology   where   hazardous   or

inherently   dangerous   industries   are   necessary   to

carry   out   part   of   the   developmental   programme,

this   rule   evolved   in   the   19th   Century   at   a   time

when   all   these   developments   of   science   and

technology   had   not   taken   place   cannot   afford   any

guidance   in   evolving   any   standard   of   liability

consistent   with   the   constitutional   norms   and   the

needs   of   the   present   day   economy   and   social

structure.   We   need   not   feel   inhibited   by   this   rule

which   was   evolved   in   this   context   of   a   totally


                                26


different kind of economy. Law has to grow in order

to satisfy the needs of the fast changing society and

keep   abreast   with   the   economic   developments

taking place in the country. As new situations arise

the   law   has   to   be   evolved   in   order   to   meet   the

challenge of such new situations. Law cannot afford

to   remain   static.   We   have   to   evolve   new   principles

and   lay   down   new   norms   which   would   adequately

deal with the new problems which arise in a highly

industrialised   economy.   We   cannot   allow   our

judicial   thinking   to   be   constricted   by   reference   to

the law as it prevails in England or for the matter of

that   in   any   other   foreign   country.   We   no   longer

need   the   crutches   of   a   foreign   legal   order.   We   are

certainly   prepared   to   receive   light   from   whatever

source   it   comes   but   we   have   to   build   up   our   own

jurisprudence   and   we   cannot   countenance   an

argument   that   merely   because   the   law   in   England

does   not   recognise   the   rule   of   strict   and   absolute

liability   in   cases   of   hazardous   or   inherently

dangerous   activities   or   the   rule   as   laid   down   in

Rylands   v.   Fletcher   as   is   developed   in   England

recognises certain limitations and exceptions. We in

India must hold back our hands and not venture to

evolve   a   new   principle   of   liability   since   English

courts   have   not   done   so.   We   have   to   develop   our

own   law   and   if   we   find   that   it   is   necessary   to

construct a new principle of liability to deal with an

unusual   situation   which   has   arisen   and   which   is

likely to arise in future on account of hazardous or

inherently   dangerous   industries   which   are

concomitant   to   an   industrial   economy,   there   is   no

reason   why   we   should   hesitate   to   evolve   such

principle of liability merely because it has not been

so done in England.


                                       27


23.    This   Court   applied   the   principle   of   Polluter   pays   and



observed thus:




       "The   polluter   pays   principle   demands   that   the

       financial   costs   of   preventing   or   remedying   damage

       caused by pollution should lie with the undertakings

       which   cause   the   pollution,   or   produce   the   goods

       which   cause   the   pollution.   Under   the   principle   it   is

       not the role of government to meet the costs involved

       in   either   prevention   of   such   damage,   or   in   carrying

       out remedial action, because the effect of this would

       be   to   shift   the   financial   burden   of   the   pollution

       incident to the taxpayer. The 'polluter pays' principle

       was promoted by the Organisation for Economic Co-

       operation   and   Development   [OECD]   during   the

       1970s   when   there   was   great   public   interest   in

       environmental   issues.   During   this   time   there   were

       demands   on   government   and   other   institutions   to

       introduce   policies   and   mechanisms   for   the

       protection   of   the   environment   and   the   public   from

       the   threats   posed   by   pollution   in   a   modern

       industrialised   society.   Since   then   there   has   been

       considerable discussion of the nature of the polluter

       pays principle, but the precise scope of the principle

       and   its   implications   for   those   involved   in   past,   or

       potentially   polluting   activities   have   never   been

       satisfactory agreed."




24.    After   hearing   the   learned   counsel   for   the   parties   at



length, this Court gave the following directions:




       "1.    The   Central   Government   shall   determine   the

              amount required for carrying out the remedial

              measures   including   the   removal   of   sludge


                         28


lying   in   and   around   the   complex   of

Respondents   4   to   8,   in   the   area   affected   in

village Bichhri and other adjacent villages, on

account   of  the   production   of  'H'   acid   and   the

discharges   from   the   Sulphuric   Acid   Plant   of

Respondents   4   to   8.   Chapters-VI   and   VII   in

NEERI   Report   [submitted   in   1994]   shall   be

deemed to be the show-cause notice issued by

the   Central   Government   proposing   the

determination   of   the   said   amount.   Within   six

weeks from this day, Respondents 4 to 8 shall

submit   their   explanation,   along   with   such

material as  they  think appropriate  in support

of   their   case,   to   the   Secretary,   Ministry   of

Environment   and   Forests,   Government   of

India   (for   short,   M.E.F.).   The   Secretary   shall

thereupon          determine         the         amount         in

consultation   with   the   experts   of   his   Ministry

within   six   weeks   of   the   submission   of   the

explanation   by   the   said   Respondents.   The

orders passed  by the Secretary, [M.E.F.] shall

be communicated to Respondents 4 to 8- and

all concerned - and shall also be placed before

this   Court.   Subject   to   the   Orders,   if   any,

passed   by   this   Court,   the   said   amount   shall

represent the amount which Respondents 4 to

8 are liable to pay to improve and restore the

environment   in   the   area.   For   the   purpose   of

these proceedings, the Secretary, [M.E.F.] and

Respondents   4   to   8   shall   proceed   on   the

assumption   that   the   affected   area   is   350   ha,

as   indicated   in   the   sketch   at   Page   178   of

NEERI   Report.   In   case   of   failure   of   the   said

respondents to pay the said amount, the same

shall be recovered by the Central Government

in   accordance   with   law.   The   factories,   plant,

machinery   and   all   other   immovable   assets   of

Respondents 4 to 8 are attached herewith. The

amount so determined and recovered shall be


                               29


      utilised   by   the   M.E.F.   for   carrying   out   all

      necessary   remedial   measures   to   restore   the

      soil,   water   sources   and   the   environment   in

      general of the affected area to its former state.


2.    On   account   of   their   continuous,   persistent

      and   insolent   violations   of   law,   their   attempts

      to conceal the  sludge, their  discharge  of toxic

      effluents from the Sulphuric Acid Plant which

      was   allowed   to   flow   through   the   sludge,   and

      their non-implementation of the Orders of this

      Court - all of which are fully borne out by the

      expert   committees'   Reports   and   the   findings

      recorded   hereinabove   -   Respondents   4   to   8

      have   earned   the   dubious   distinction   of   being

      characterised as "rogue industries". They have

      inflicted   untold   misery   upon   the   poor,

      unsuspecting   villagers,   despoiling   their   land,

      their   water   sources   and   their   entire

      environment - all in pursuance of their private

      profit.   They   have   forfeited   all   claims   for   any

      consideration   by   this   Court.   Accordingly,   we

      herewith   order   the   closure   of   all   the   plants

      and factories of Respondents 4 to 8 located in

      Bichhri   village.   The   R.S.P.C.B.   is   directed   to

      seal all the factories/ units/plants of the said

      respondents forthwith. So far as the Sulphuric

      Acid Plant is concerned, it will be closed at the

      end   of   one   week   from   today,   within   which

      period   Respondent   No.   4   shall   wind   down   its

      operations so as to avoid risk of any untoward

      consequences, as asserted by Respondent No.

      4 in Writ Petition (C) No. 76 of 1994. It is the

      responsibility   of   Respondent   No.   4   to   take

      necessary steps in this behalf. The R.S.P.C.B.

      shall seal this unit too at the end of one week

      from   today.   The   re-opening   of   these   plants

      shall   depend   upon   their   compliance   with   the

      directions   made  and  obtaining  of  all  requisite


                                    30


       permissions   and   consents   from   the   relevant

       authorities. Respondents  4 to  8  can apply for

       directions   in   this   behalf   after   such

       compliance.


3.     So   far   as   the   claim   for   damages   for   the   loss

       suffered by the villagers in the affected area is

       concerned,   it   is   open   to   them   or   any

       organisation   on   their   behalf   to   institute   suits

       in   the   appropriate   civil   court.   If   they   file   the

       suit   or   suits   in   forma   pauperis,   the   State   of

       Rajasthan   shall   not   oppose   their   applications

       for leave to sue in forma pauperis.


4.     The   Central   Government   shall   consider

       whether   it   would   not   be   appropriate,   in   the

       light   of   the   experience   gained,   that   chemical

       industries   are   treated   as   a   category   apart.

       Since   the   chemical   industries   are   the   main

       culprits   in   the   matter   of   polluting   the

       environment,   there   is   every   need   for

       scrutinising           their            establishment             and

       functioning   more   rigorously.   No   distinction

       should   be   made   in   this   behalf   as   between   a

       large-scale   industry   and   a   small-scale

       industry   or   for   that   matter   between   a   large-

       scale   industry   and   a   medium-scale   industry.

       All  chemical  industries,   whether  big  or  small,

       should be allowed to be established only after

       taking         into         considerations            all         the

       environmental   aspects   and   their   functioning

       should   be   monitored   closely   to   ensure   that

       they   do   not   pollute   the   environment   around

       them. It appears that most of these industries

       are   water-intensive   industries.   If   so,   the

       advisability   of   allowing   the   establishment   of

       these industries in arid areas may also require

       examination.   Even   the   existing   chemical

       industries   may   be   subjected   to   such   a   study


                                      31


      and   if   it   is   found   on   such   scrutiny   that   it   is

      necessary to take any steps in the interests of

      environment,   appropriate   directions   in   that

      behalf may be issued under Section 3 and 5 of

      the Environment Act, the Central Government

      shall ensure that the directions given by it are

      implemented forthwith.


5.    The   Central   Government   and   the   R.S.P.C.B.

      shall   file   quarterly   Reports   before   this   Court

      with   respect   to   the   progress   in   the

      implementation of Directions 1 to 4 aforesaid.


6.    The         suggestion           for         establishment         of

      environment   courts   is   a   commendable   one.

      The   experience   shows   that   the   prosecutions

      launched   in   ordinary   criminal   courts   under

      the   provisions   of   the   Water   Act,   Air   Act   and

      Environment Act never reach their conclusion

      either   because   of   the   work-load   in   those

      courts   or   because   there   is   no   proper

      appreciation   of   the   significance   of   the

      environment   matters   on   the   part   of   those   in

      charge of conducting of those cases. Moreover,

      any   orders   passed   by   the   authorities   under

      Water   and   Air   Acts   and   the   Environment   Act

      are   immediately   questioned   by   the   industries

      in   courts.   Those   proceedings   take   years   and

      years to reach conclusion. Very often, interim

      orders are granted meanwhile which effectively

      disable   the   authorities   from   ensuring   the

      implementation of their orders. All this points

      to   the   need   for   creating   environment   courts

      which alone should be empowered to deal with

      all   matters,   civil   and   criminal,   relating   to

      environment. These courts should be manned

      by legally trained persons/judicial officers and

      should   be   allowed   to   adopt   summary

      procedures.   This   issue,   no   doubt,   requires   to


                                            32


              be   studied   and   examined   indepth   from   all

              angles before taking any action.


       7.     The   Central   Government   may   also   consider

              the      advisability          of      strengthening         the

              environment protection machinery both at the

              Center and the States and provide them more

              teeth. The heads of several units and agencies

              should   be   made   personally   accountable   for

              any   lapses   and/or   negligence   on   the   part   of

              their   units   and   agencies.   The   idea   of   an

              environmental   audit   by   specialist   bodies

              created   on   a   permanent   basis   with   power   to

              inspect,   check   and   take   necessary   action   not

              only against erring industries but also against

              erring officers may be considered. The idea of

              an environmental audit conducted periodically

              and   certified   annually,   by   specialists   in   the

              field, duly recognised, can also be considered.

              The   ultimate   idea   is   to   integrate   and   balance

              the concern for environment with the need for

              industrialisation and technological progress."




25.    The orders of this Court have not been implemented till



date because by filing of number of interlocutory applications



the respondent nos.4 to 8 have kept the litigation alive.  These



respondents   have   been   successful   in   avoiding   compliance   of



the judgment of this Court for more than fifteen years.





ORDER IN CONTEMPT PETITION


                                        33


26.    The   original   record   of   Writ   Petition   No.   967   of   1989



shows   that   the   R.S.P.C.B.   has   filed   a   report   of   the   National



Environmental   Engineering   Research   Institute,   for   short



`NEERI'   in   this   Court   on   6.1.1996.     It   is   on   this   report   that



reliance was placed by the Court while disposing off the said



writ petition.  If the report which was submitted in this Court



by   the   R.S.P.C.B.   was   different   from   the   final   report   which



was submitted by NEERI to the said Board, then it may have



been   possible   to   contend   that   the   R.S.P.C.B.   and   its   officers



were   guilty   of   fabrication.     The   affidavit   of   Mr.   S.N.   Kaul,



Acting Director of NEERI clearly shows that what was filed in



this   Court   was   the   copy   of   the   final   report   dated   16.5.1994



which has been prepared by the NEERI.   In other words, the



NEERI   itself   states   that   the   report   filed   in   this   Court   by   the



Board   was   a   copy   of   the   final   report   and   that   there   was   no



fabrication made therein by the Board or any of its officials.



27.    It   appears   that   the   two   scientists   had   inspected   the



report in the office of the NEERI and then observed that there



has   been   a   fabrication   carried   out   by   the   Pollution   Control


                                      34


Board.  From what has been stated hereinabove, the charge of



fabrication is clearly unfounded.   It is possible that these two



scientists may have seen the draft report which would be with



NEERI   but   the   original   report   when   prepared   would   be   one



which   was,   ultimately,   submitted   to   the   sponsoring   agency,



namely,   the   R.S.P.C.B.,   and   it   is   only   a   copy   of   the   same



which could have been retained by NEERI. Be that as it may,



it is clear that what has been filed in this Court as being the



final   report   of   the   NEERI   was   the   copy   of   the   final   report



which   was   received   by   it.     There   is   no   basis   for   contending



that   any   of   the   respondents   have   been   guilty   of   fabrication.



The whole application to our mind is devoid of any merit. The



contempt petition was dismissed with costs.





IA NO.36 IN WRIT PETITION (C) No.967 OF 1989


28.    This Interlocutory Application has been filed on behalf of



M/s  Hindustan   Agro   Chemical Ltd.  (for  short  "HACL")  whose



industrial units situated in Udaipur were directed to be closed



down   by   this   Court   on   the   premise   that   the   said   units   had



caused pollution in village Bichhri.  This Court while directing


                                      35


for closure of the industrial units of HACL vide its order dated



13.2.1996 had further held that the units be not permitted to



run until they deposit the remediation costs for restoring the



environment   in  the   area.     The   Court   accordingly   directed   for



the attachment of the properties of HACL.




29.    There is a serious attempt to reopen the entire concluded



case   which   stands   fully   concluded   by   the   judgment   of   this



Court  delivered on 13th  February,  1996.     It may be  pertinent



to   mention   that   even   the   review   and   curative   petitions   have



also   been   dismissed.     By   this   application,   the   applicant   has



also   made   an   attempt   to   introduce   before   this   Court   the



opinion   of  various   experts,   such   as,   Dr.   M.S.  Govil,   Mr.   S.K.



Gupta,   Dr.   P.S.   Bhatt   and   Ms.   Smita   Jain   who   visited   the



Bichhri   village   at   the   instance   of   the   applicant   in   the   year



2004 to provide a different picture regarding the conditions of



water and soil in the area.  These experts submitted reports to



demonstrate   that   now   hardly   any   remediation   measures   are



required in Bichhri village or adjoining areas.


                                         36


30.    The applicant in this application is seeking a declaration



that as of now there is no pollution existing in the area which



may   have   been  caused   by   HACL   and   accordingly   there   is   no



necessity for this Court to sell the assets of HACL in order to



carry out any remediation in the area.  This application also is



a serious attempt to discredit the NEERI report of 1996 once



again.




31.    The   sole   object   of   filing   of   the   present   application   is   to



introduce before this Court recent reports prepared by experts



at the behest of the applicant to demonstrate to the Court that



before embarking upon remediation measures and for the said



purposes   putting   the   properties   of   the   applicant   to   sell,   the



status   and   conditions   of   water,   soil   and   environment   in   the



area   as   at   present   be   reviewed   with   a   view   to   realistically



ascertain whether any measures for remediation are called for



at all in the area and if yes, then the nature and the current



cost of the same may be ascertained.



32.    The   applicant   submitted   that   the   report   of   the   NEERI



which  was  the   basis   for   the  earlier   orders  of this  Court  does


                                      37


not   specify   the   nature   of   remediation   measures   which   were



considered   necessary.     The   report   merely   indicates   a   lump



sum   amount   without   giving   its   break   up   as   being   a   rough



estimate of amount considered by them necessary for carrying



out remediation measures.




33.    It   is  stated  in  the   application  that  the  Secretary,   MOEF



after   issuing   notices   to   the   parties   called   for   the   expert



opinion   of   Water   and   Power   Consultancy   (WAPCO)   and   of



Engineers   India   Limited   (EIL),   both   these   institutions   were



established   by   the   Government   of   India.   Both   these



institutions wrote to the Secretary that the data available was



not sufficient to determine the cost of remediation, if any.  The



Secretary, who under the directions of the Court was directed



to   determine   the   amount   within   six   weeks   was   left   with   no



alternative   but   to   simply   affirm   the   lump   sum   amount



determined by the NEERI.




34.    It   is   stated   that   now   almost   fifteen   years   have   passed



since the final judgment of this Court and the situation in the



area needs to be inspected again to find out as to whether any


                                      38


remediation   is   necessary   or   whether   with   passage   of   time



nature on its own has taken care of the pollution in the area



and because of the same no further remediation is required to



be done in the area.   This submission is being made without



prejudice   to   the   right   of   the   applicant   to   contend   that   the



applicant   had   not   caused   any   pollution   in   the   area   but   the



applicant for the limited purpose of this application is ready to



assume   for   the   sake   of   arguments   that   the   applicant   had



caused pollution in the area and that the nature in the last so



many years has taken care of the pollution and on that basis



there is no pollution existing in the area at present.




35.    One of the issues that came up for consideration before



this   Court   was   the   liability   of   the   Union   of   India   to   take



remediation   measures   in   the   area   even   if   the   applicant   were



not   to   pay   the   remediation   costs   as   determined   by   the



Secretary, MOEF.  In these proceedings the counsel on behalf



of  the applicant made a suggestion  to the Court that  a fresh



team be sent to the units of the applicant to find out whether



there   is   still   any   pollution   existing   in   the   area   and   also


                                        39


whether any remediation as of today is required to be done or



not.     It  was   suggested   during   the   course   of   hearing   that   the



remediation   cost   being   sought   to   be   recovered   from   the



applicant is not some kind of a decree in which the applicant



is a judgment debtor but is merely a cost which the applicant



is   being   made   liable   to   pay   on   the   "Polluter   Pays"   principle



and   there   is   no   necessity   of   payment   if   there   is   no   pollution



existing.   Till date there is no working out as to how the cost



of remediation has been worked out by NEERI which had been



affirmed by the Secretary, MOEF and which had been further



affirmed by this Court.




36.    According to the applicant, on the basis of the reports of



some   experts   it   is   quite   evident   that   there   is   no   pollution   in



and   around   the   factory   premises   of   the   applicant   and



accordingly there is no need for any remediation to be done in



the   area   and   the   factory   of   the   applicant   is   required   to   be



handed   over   to   the   applicant   forthwith   so   that   the   applicant



may   take   proper   steps   to   re-start   the   factory   and   generate


                                         40


resources   to   meet   the   liabilities   of   the   financial   institutions



and banks.




37.    It   is   further   prayed   that   if   this   Court   for   any   reason



doubts   the   opinion   of   the   experts   placed   by   the   applicant   in



any   manner,   then   this   Court   may   appoint   any   reputed



expert/experts   to   visit   the   area   and   to   submit   a   detailed



report   to   this   Court   relating   to   the   pollution   existing   in   the



area   as   of   now.     In   other   words,   the   effort   is   to   reopen   the



concluded case and that also after the review and the curative



petitions have been dismissed by this Court.




38.    There are two main prayers in this application, the first



prayer   is   that   no   remediation   is   required   to   be   done   in   and



around   the   industrial   units   of   the   applicant   on   the   basis   of



the   four   reports   placed   by   the   applicant   along   with   this



application   or   on   the   basis   of   the   report   submitted   by   the



expert/experts   appointed   by   this   Court;   and  secondly,  that



the   Court   may   pass   consequential   order   directing  for   closing



of these proceedings and thus lift the attachment order dated



13.2.1996.


                                     41




39.    Reply   Affidavits   to   the   Interlocutory   Application   have



been filed by the Union of India and other respondents. In the



reply   affidavits   of   the   respondents   it   is   mentioned   that   on



13.2.1996   this   Court   directed   closure   of   the   units   of   the



applicant   for   the   reason  that   the   said   industries   had   caused



environmental   pollution   in   and   around   the   areas   where



applicant's units are located.  This Court had further directed



that the units of the applicant would be permitted to operate



only   after   depositing   necessary   costs   for   taking   measures   to



restore   the   environment   of   the   areas.     The   judgment   of   this



Court was based upon a report dated 5.4.1994 of the NEERI



which was filed by the R.S.P.C.B. on 6.1.1996.




40.    The   applicant   questioned   the   credibility   of   the   NEERI's



report.   It is submitted that the remediation cost for restoring



the   environmental   quality   of   the   area   was   only   Rs.3   crores



whereas in the report submitted in this Court the remediation



cost was stated to be Rs.37.385 crores.


                                       42


41.    The   applicant   prayed   that   in   the   interest   of   justice   the



report dated 25.1.2005 submitted  by the expert group to the



MOEF   be   ignored   and   either   accept   the   reports   prepared   at



the   instance   of   the   applicant   or   fresh   direction   be   issued   for



constitution   of   an   independent   expert   group   not   having   any



association with NEERI to carry out investigation with relation



to the environment in the village Bichhri.




42.    According   to   the   applicant,   the   report   of   NEERI   relied



upon   by   this   Court   was   not   the   authentic   report   which   was



officially prepared.   Even the copy which was actually filed in



this matter was without any supporting affidavit and the same



was merely handed over to this Court at the time of hearing.



The   applicant   made   his  own  enquiry   and   was   officially   given



the   report   of   NEERI.     After   comparing   the   report   made



available   to  the  applicant  from   the  one  filed  in  this matter  it



came   to   light   that  the   report   actually  filed  in   this  Court   was



not   bearing   any   resemblance   to   the   conclusion   and   findings



mentioned in the actual report.


                                         43


43.    It was also submitted that there have also been attempts



on the part of authorities to shield the role of M/s. Hindustan



Zinc   Limited   in   causing   environment   damage   in   village



Bichhri.   This issue needs to be addressed and the same can



be  possible  only  if   an  organization   having credibility  and  not



having any association with the NEERI actually carries out a



detailed investigation.




44.    Reply affidavit has also been filed by the R.S.P.C.B.  It is



stated in the said affidavit:



       3 (i)    That   M/s.   Hindustan   Agro   Chemical   Ltd.,

                Village Bichhri, Tehsil Girva, District Udaipur,

                Rajasthan;   respondent   no.4,   established   its

                Sulphuric   Acid   and   Oleum   Plant   in   the   year

                1985   without   obtaining   prior   consent   of   the

                State   Board   under   the   provisions   of   Sections

                25   and   26   of   the   Water   (Prevention   and

                Control of Pollution) Act, 1974; and section 21

                of  the   Air   (Prevention   an   Control   of  Pollution)

                Act, 1981;



       (ii)     That   the   State   Board   vide   its   letter   dated

                16.2.1987 refused consent to respondent no.4

                under   the   provisions   of   section   25   and   26   of

                the   Water   Act   for   discharging   trade   effluent

                from its Sulphuric Acid Plant.



       (iii)    That   the   State   Board   issued   directions   vide

                order   dated   26.11.1993,   for   closure   of

                Sulphuric   Acid   Plant   under   the   provisions   of


                                   44


         section   33A   of   the   Water   Act,   1974   as   it   was

         discharging   trade   effluent   without   proper

         treatment   and   in   excess   of   the   prescribed

         standards.     The   District   Collector   Udaipur

         implemented   the   directions   of   closure   of

         Sulphuric   Acid   Plant   passed   by   the   State

         Board.



4 (i)    That   M/s.   Hindustan   Agro   Chemical   Ltd.,

         Village Bichhri, Tehsil Girva, District Udaipur,

         Rajasthan;   respondent   no.4   established   its

         Solvent   Extraction   coupled   with   Oil   Refinery

         Plant in the year 1991 without obtaining prior

         consent   of   the   State   Board   under   the

         provisions   of   section   25   and   26   of   the   Water

         Act and section 21 of the Air Act.



(ii)     That   the   State   Board   vide   its   letter   dated

         24.7.1992 refused consent to respondent no.4

         under   the   provisions   of   section   25,   26   of   the

         Water   Act   for   discharging   trade   effluent   from

         its Solvent Extraction Plant.



(iii)    That   the   State   Board   issued   directions,   vide

         order dated 26.11.1993, for closure of Solvent

         Extraction   Plant   under   the   provisions   of

         section   33A   of   the   Water   Act,   as   it   was

         discharging   trade   effluent   without   proper

         treatment   and   in   excess   of   the   prescribed

         standards.     The   District   Collector   Udaipur

         implemented   the   directions   of   closure   of

         Solvent   Extraction   Plant   passed   by   the   State

         Board.



5 (i)    That   respondent   no.4   preferred   a   petition

         before this Court being Writ Petition (C) No.76

         of 1994 Hindustan Agro Chemical Ltd. & Anr.

         v.   State   of   Rajasthan   &   Ors.   challenging   the

         directions   dated   26.11.1993   of   the   State


                                      45


         Board closing down Sulphuric Acid Plant and

         Solvent Extraction  Plant under  the provisions

         of section 33A of the Water Act, 1974.   It was

         alleged   that   the   action   of   the   State   Board

         closing down Sulphuric Acid Plant and Solvent

         Extraction          Plant           was         arbitrary           and

         highhanded.



(ii)     That   this   Court   during   hearing   in   the   matter

         on   7.3.94,   in   WP   (C)   No.76/94   passed   the

         following direction inter-alia:-



               "We   thought   of   having   the

               complaints   of   the   petitioner   as   to

               harassment,   examined   by   an

               independent                  Commissioner              to

               ascertain   the   bona   fides   of   the

               action   taken   by   the   officers   of   the

               Pollution Control Board and also to

               fix   their   responsibility.   But   we

               thought   that   at   this   stage   it   would

               be   appropriate   to   ask   the   learned

               Advocate-General,   who   appears   for

               the   State   of   Rajasthan,   to   have   the

               matter   examined   at   his   instance

               and   direct   the   Pollution   Control

               Board   to   act   more   constructively

               and   to   suggest   measures   by   which

               the Plant could be re-commissioned

               immediately."



(iii)    That   the   said   writ   petition   again   came   up   for

         hearing   on   18.3.94   before   this   Court.     This

         Court   was   pleased   to   pass   the   following

         directions inter alia:-



               "In   the   meanwhile,   the   Pollution

               Control Board is not prevented from

               and   it   shall   indeed   by   its   duty   to


                                      46


              indicate   what,   according   to   it,   are

              such   minimal   requirements   for

              grant   of   permission   to   re-start   the

              industries   or   to   permit   any   interim

              arrangements in this behalf."




(iv)    That in pursuance of the aforesaid order dated

        18.3.94,         the         respondent         Board         took

        appropriate   steps   and   granted   permission   to

        restart   industry   subject   to   certain   conditions

        communicated vide permission order.



              It   is   submitted   that   the   industry   was

        restarted.  However, on subsequent inspection

        it   was   found   that   the   industry   was   violating

        the   prescribed   norms   and   also   has   not

        bothered   to   comply   with   the   conditions

        mentioned   in   the   permission   order.     As   such

        an application was moved before this Court for

        appropriate directions in the matter.



(v)     That despite all efforts for re-commissioning of

        the   plants,   respondent   no.4   failed   to   take

        measures   required   for   prevention   and   control

        of pollution.



(vi)    That this court vide order and judgment dated

        13.2.96,   dismissed   the   above   mentioned   writ

        petition in view of the decision in writ petition

        (Civil) No.967 of 1989.



6(i)    That   M/s.   Hindustan   Agro   Chemical   Ltd.,

        Village Bichhri, Tehsil Girva, District Udaipur,

        Rajasthan,   respondent   no.4,   established   its

        Chlorosulphonic   Acid   Plant   in   June   1992

        without   obtaining   prior   consent   of   the   State

        Board under the provisions of Section 25 and


                                     47


         26 of the Water  Act and section 21 of the Air

         Act.



(ii)     That   the   State   Board   issued   directions   vide

         order   dated   30.12.1992,   for   closure   of

         Chlorosulphonic   Acid   Plant   under   the

         provisions of section 33A of the Water Act and

         31A of Air Act.  The District Collector Udaipur

         implemented   the   directions   of   closure   of

         Chlorosulphonic   Acid   Plant   passed   by   the

         State Board.



(iii)    That   respondent   no.4   preferred   a   petition

         before   this   Court   being   Writ   Petition   (C)

         No.824   of   1993,   Hindustan   Agro   Chemical

         Ltd.   &   Anr.   v.   State   of   Rajasthan   &   Ors.,

         challenging the directions dated 30.12.1992 of

         the State Board closing down Chlorosulphonic

         Acid Plant under the provisions of Section 33A

         of   the   Water   Act,   and   31A   of   the   Air   Act.     It

         was alleged that the action of the State Board

         closing   down   Chlorosulphonic   Acid   Plant   was

         arbitration and highhanded.



(iv)     That   this   Court   dismissed   the   above

         mentioned   writ   petition   by   judgment   dated

         13.2.96 in W.P. (Civil) No.824 of 1993 in view

         of   the   decision   in   Writ   Petition   (Civil)   967   of

         1989.



7(i)     That   M/s   Silver   Chemicals,   Village   Bichhri,

         Tehsil   Girva,   District   Udaipur   Rajasthan,

         respondent   no.5   came   into   existence   in

         February   1988   to   manufacture   H-Acid   and

         continued   its   operations   upto   March   1989

         without   obtaining   prior   consent   of   the   State

         Board under the provisions of section  25  and

         26 of the Water Act and Section 21 of the Air

         Act.


                                  48





(ii)     That   the   State   Board   vide   its   letter   dated

         9.1.1989          refused           consent         application

         submitted by M/s. Silver Chemicals under the

         provisions   of   Section   25/26   of   the   Water   Act

         as   the   unit   was   discharging   trade   effluent

         beyond   the   prescribed   standard   and   without

         having   installed   a   plant   for   the   treatment   of

         trade   effluent.     The   State   Board   under   the

         provisions   of   section   25(5)   of   the   Water   Act

         also   imposed   several   conditions   on   the

         industry   and  informed   it  that  failure  to   make

         compliance of the conditions of the conditions

         shall render it liable for prosecution.



(iii)    That   the   industry   however   continued   its

         operations   and   looking   to   the   continued

         violations   of   the   provisions   of   the   aforesaid

         Acts,   the   State   Board   filed   an   injunction

         application under the provisions of section 33

         of   the   Water   Act   for   restraining   the   industry

         from   discharging   polluted   trade   effluent   in

         excess   of   the   prescribed   standards   and   from

         causing   pollution   of   underground   water   n

         24.3.89   before   the   court   of   Chief   Judicial

         Magistrate, Udaipur.



(iv)     That   the   Court   of   Chief   Judicial   Magistrate,

         Udaipur   by   order   dated   15.6.1989   issued

         injunction   against   M/s.   Silver   Chemicals

         restraining   it   from   discharging   polluted   trade

         effluent without any treatment.



(v)      That   the   State   Board   also   filed   a   criminal

         complaint   No.176/99   against   M/s.   Silver

         Chemicals   and   its   Director   on   24.3.89   under

         the   provisions   of   section   43   and   44   for

         violation   of   the   provisions   of   section   24,   25

         and 26 of the Water Act.


                                  49





(vi)    That   the   court   of   Chief   Judicial   Magistrate,

        Udaipur   by   order   and   judgment   dated

        11.8.2004   has   convicted   M/s.   Silver

        Chemicals with fine of Rs.10 lakh each under

        section 43 & 44 of the Act.  The Court has also

        sentenced   Shri   O.P.   Agarwal,   Director   of   the

        said   company   with   simple   imprisonment   of

        one   year   and   fine   of   Rs.10,000/-   under

        section   43   and   simple   imprisonment   of   six

        months and fine of Rs.10,000/- under section

        44   of  the   Act.    The   company   and   its   Director

        have   preferred   criminal   appeal   no.92   of   2004

        under   section   374   (3)(a)   of   the   Code   of

        Criminal Procedure before the Sessions Judge,

        Udaipur.  The appeal is pending before the Ld.

        Sessions Judge.



8(i)    That   M/s.   Rajasthan   Multi   Fertilizers,   Vilalge

        Bichhri,   Tehsil   Girva,   District   Udaipur,

        Rajasthan   respondent   no.6,   established   NKP

        Fertilizer   Plant   at   the   site,   without   obtaining

        previous consent of the State Board under the

        provisions   of   section   25,   26   of   the   Water   Act

        and section 21 of the Air Act.



(ii)    That   the   State   Board   on   20.2.89   issued   a

        notice and directed respondent no.6 to obtain

        consent of the State Board under the provision

        of the Water Act for discharging trade effluent

        from its plant.



9(i)    That   M/s.   Phosphate   India,   Vilalge   Bichhri,

        Tehsil   Girva,   District   Udaipur,   Rajasthan,

        respondent   no.7   established   Single   Super

        Phosphate Plant at the site, without obtaining

        previous consent of the State Board under the

        provisions   of   section   25,   26   of   the   Water   Act

        and section 21 of the Air Act.


                                  50





(ii)     That   the   State   Board   on   20.2.89   issued   a

         show   cause   notice   and   directed   respondent

         no.7   to   obtain   consent   of   the   State   Board

         under   the   provisions   of   the   Water   Act   for

         discharging trade effluent from its plant.



10(i) That   M/s   Jyoti   Chemicals,   Village   Bichhri,

         Tehsil   Girva,   District   Udaipur,   Rajasthan;

         respondent   no.8   established   its   plant,   at   the

         site,   in   the   year   1987,   to   manufacture   Ferric

         Alum   without   obtaining   previous   consent   of

         the   State   Board   under   the   provisions   of

         section 25 and 26 of the Water Act and section

         21 of the Air Act.



(ii)     That   the   State   Board   vide   its   letter   dated

         4.8.1988 issued N.O.C. to respondent no.8 for

         adequacy   of   pollution   control   measures   for

         Ferric   Alum   Plant.     The   respondent   No.8,

         however,   started   manufacturing   H-Acid   and

         continued its operation till March, 1989.



(iii)    That the State Board vide letter dated 30.5.88

         withdrew   the   NOC   for   the   reason   that

         respondent no.8 violated the conditions of the

         NOC.



(iv)     That   the   State   Board   vide   its   letter   dated

         30.5.89   also   refused   application   filed   by

         respondent no.8 for discharging trade effluent

         under  section  25, 26  of  the  Water  Act for the

         reasons,  inter   alia,   that   it   failed   to   install

         pollution   control   measures   and   changed   its

         product   from   Ferric   alum   to   H-Acid   without

         the consent of the State Board.



11.      That   this   Court   by   its   common   order   and

         judgment   dated   13.2.96   in   the   aforesaid   Writ


                                    51


             Petition   (Civil)   No.967/89,   Indian   Council   for

             Enviro   Legal   Action   v.   Union   of   India   &

             Others;   Writ   Petition   (Civil)   No.76/94

             Hindustan   Agro   Chemical   v.   State   Pollution

             Control   Board   &   Others   and   Writ   Petition

             (Civil) No.824/93 Hindustan Agro Chemical v.

             State   Pollution   Control   Board   and   Others

             attached   the   factories,   plant,   machinery   and

             all   other   immovable   assets   of   respondent

             nos.4 to 8.   The State Pollution Control Board

             was directed to seal all the factories, plants of

             respondent   nos.4   to   8   forthwith.     The   State

             Board in compliance of the aforesaid direction

             sealed  the  plants of respondent  nos.4 to 8 as

             directed by this Court.




45.    The written submissions were also filed by the Union of



India   and   the   R.S.P.C.B.   in   response   to   the   order   dated



03.05.2005 in IA No.36.  It is stated in the said affidavit:



       2.    That   the   Ministry   of   Environment   &   Forests,

             Government   of   India   vide   its   affidavit   dated

             29.1.2005   submitted   a   summary   report

             prepared   by   a   consortium   of   SENES

             Consultants   Limited,   Canada;   and   NEERI,

             Nagpur   before   this   Court.     The   Ministry   of

             Environment   &   Forest,   Government   of   India

             and   the   Rajasthan   State   Pollution   Control

             Board   are   making   joint   submissions   herein

             below   for   remediation   of   the   environmental

             damage   caused   in   village   Bichhri.     Based   on

             the   recommendations   given   in   the   report   of

             July,   2002,   prepared   by   SENES/NEERI   for

             remediation   of   degraded   environment   of

             Bichhri,   District   Udaipur,   Rajasthan,   the


                            52


     following works will be undertaken on priority-

     wise:



First Priority:



Phase-I:       Source Remediation (Short Term)


     7 Clean   up   of   water   near   the   plant   site   with
        highest H-acid contamination.


     7 Remediation   of   contaminated   soil   and   sludge
        management within the plant site.




Second Priority:



Phase-II:      Hot Spots Remediation (Medium Term)


     7 Clean up of ground water at hot spots.


Third Priority:



Phase-III:   Residual   Contamination   Remediation   (Long

              Term)


     7 Clean up of residual contaminated water.


Fourth Priority:



Phase-IV (long-term):        


     7 Clean   up   of   contaminated   soil   outside   plant
        boundary.


                                         53


       3.      While   dealing   with   the   first   phase   called   as   short-

               term   remedies,   it   has   been   divided   in   two   parts

               namely:-



       (i)     Clean   up   of   water   near   the   plant   site   with   highest



               H-acid contamination.



       (ii)    Soil and Sludge management within the plant site.




46.    The   said   recommendation   given   in   the   SENES/NEERI



report further suggests as follows:



       "Considering   the   available   water   quality   data   the

       following   alternatives   were   evaluated   in   the

       preliminary review:


               7 Lime soda process plus Fe coagulation
               7 Reverse osmosis (RO)
               7 Electro-dialysis
               7 Ion exchange
               7 Activated carbon Sorption and
               7 Activated carbon filtration

       Similarly,   for   the   second   short-term   measures

       namely,   the   remediation   of   soil   and   sludge

       management   many   alternative   suggestions   have

       been   made.     The   said   report   has   suggested   the

       following four alternatives for clean up of soil:


               7 Excavation   and   relocation   in   a   capped
                  landfill.

               7 Ex-situ remediation (soil washing)
               7 Phyto-remediation
               7 Natural attenuation


                                    54


4.    That   out   of   the   aforesaid   alternative   technologies,

      the   most   suitable   alternative   with   regard   to   the

      human   habitation,   plantation   and   vegetation   etc.,

      will   have   to   be   decided   keeping   in   view   the   local

      conditions   and   priority   requirement.     This   job   will

      have   to   be   done   by   Technical   Advisory   Committee

      having   sufficient   technical   know-how   in   respect   of

      the   remedial   measures.     The   committee   may   also

      like   to   look   into   the   techno-economic   feasibility   in

      this regard.



5.    In   order   to   go   ahead   with   the   above   mentioned

      works   on   priority-wise,   the   following   steps   will   be

      taken:



      a) Reconfirmation   of   National   Productivity   Council

         (NPC)   New   Delhi   as   the   Project   Management

         Consultant           (PMC)         by      the      Ministry      of

         Environment   &   Forests   (MoEF).     NPC   was   the

         PMC   for   the   purpose   of   conducting   feasibility

         studies by SENES & NEERI in pursuance of the

         directions   dated   4.11.1997   of   this   Court.     The

         role of PMC will be to -



            i)      Co-ordinate   preparatory   activities   such

                    as   bidding   and   selection   of   a   suitable

                    expert           agency         for         undertaking

                    remediation work before execution of the

                    remediation works.



            ii)     Organise   Technical   Advisory   Committee

                    meetings   from   time   to   time   to   guide,

                    review   and   supervise   the   progress   of

                    remediation works.



            iii)    Co-ordinate   activities/works   pertaining

                    to   actual   remediation   and   submit

                    progress reports to the MoEF.


                                        55


             b) Constitution   of   a   Technical   Advisory   Committee

                   by   the   MoEF   having   representations   of   MoEF,

                   CPCB,   Government   of   Rajasthan,   RSPCB,

                   NEERI,   NPC   &   Technical   Experts   of   National

                   repute in the relevant fields to -



                     i)      Evaluation   the   recommendations   of

                             SENES NEERI Report (July 2002);



                     ii)     Finalise   the   detailed   line   of   action   and

                             plan   for   remediation   of   environmental

                             damages;



                     iii)    Review   the   alternative   technologies   from

                             the   technologies   recommended   in   the

                             SENES-NEERI report and to recommend

                             suitable   technology   for   remediation   of

                             contaminated water and soil.



                     iv)     Supervise             the         work         of         actual

                             remediation.




             6.      As   the   remediation   of   environmental   damage

             would require a large sum of money...





47.    All   issues   raised   in   this   application   have   been   argued



and   determined   by   an   authoritative   judgment   of   this   Court



about   fifteen   years   ago.     This   application   has   been   filed   to



avoid   liability   to   pay   the   amount   for   remediation   and   costs



imposed   by   the   Court   on   the   settled   legal   principle   that



polluter pays principle.  In other words, the applicant through


                                       56


this   application   is   seriously   making   an   effort   to   avoid



compliance   of   the   order/judgment   of   this   Court   delivered



fifteen   years   ago.     The   tendency   must   be   effectively   curbed.



The applicant cannot be permitted to avoid compliance of the



final order of this court by abusing the legal process and keep



the litigation alive.





48.    The   applicant   is   in   business   where   sole   motto   of   most



businessmen is to earn money and increase profits. If by filing



repeated   applications   he   can   delay   in   making   payment   of



huge remediation costs then it makes business sense as far as



the   applicant   is   concerned   but   the   Court   must   discourage



such   business   tactics   and   ensure   effective   compliance   of   the



Court's   order.     It  is   also   the   obligation   and   bounden   duty   of



the   court   to   pass   such   order   where   litigants   are   prevented



from abusing the system.



I.A. NO. 44 IN W.P.(C)No.967 OF 1989


49.    In   this   matter   the   final   judgment   of   the   court   was



delivered   on   13.2.1996.     A   Review   Petition   filed   was   also



dismissed.   Thereafter, a Curative Petition was filed and that


                                         57


was   also   dismissed   on  18.7.2002.    The   applicant   did   not



comply   with   the   orders   passed   by   this   court   even   after



dismissal of curative petition and has filed this application.




50.    This   application   has   been   filed   by   respondent   No.   4,



Hindustan   Agro   Chemicals   Limited.     By   this   application



respondent   No.   4   sought   an   investigation   into   the   reports   of



April,   1994   prepared   by   the   NEERI,   which   was   employed   by



the   R.S.P.C.B.   in   September,   1992   to   evaluate   the   extent   of



contamination done by the applicant's plant in Bichhri village



in Rajasthan.




51.    It   is   on   the   basis   of  the   report   that  applicant's   units   in



Bichhri village were closed down and the applicant was asked



to   pay   a   sum   of   Rs.37.385   crores   towards   the   costs   of



remediation   to   the   government.     The   reports   of   April,   1994



had alleged that the applicant's units polluted the whole area



by   discharging   its   H-acid   on   the   land   which   would   cost



Rs.37.385 crores to clean-up.


                                       58


52.    According   to   the   applicant   various   experts   employed  by



the applicant had found no evidence of H-acid pollution from



the applicant's  units  in the area.   In the application,  serious



effort has been made to discredit the NEERI report.  It may be



pertinent   to   mention   all   objections   of   the   said   reports   were



heard and disposed by the judgment dated 13.2.1996:



       "In   fact,   while   one   report   mentioned   the   cost   of

       remediation   to   be   3   crores,   the   one   which   was

       presented to the Court showed it as 37.385 crores.



       As per the original report it was reported by RSPCB

       that   most   of   wells   within   1.5   k.m.   radius   of   the

       plants were contaminated while the modified report

       says, wells within 6.5 k.m. radius.



       While the original report noted that the sludge had

       been   stored   under   the   supervision   of   the   RSPCB

       whereas   the   modified   report   stated   that   the

       industry had scattered the sludge in an unmindful-

       clandestine   manner   causing   gross   pollution   to

       avoid penal liability."




53.    According to the reports of the experts, (who visited  the



site   at   the   instance   of   the   applicant,   after   the   dismissal   of



Review and Curative petition) the report of the NEERI filed in



April   1994   was  untenable   and  unsustainable.       According   to



the   applicant   the   said   report   was   fabricated.     In   the


                                        59


application  it is also mentioned   that this is  a fraud in  which



this court had been unwittingly dragged by the officers of the



RSPCB   and   the   NEERI   to   destroy   several   industries   and   the



livelihood of about 1700 persons and it has been prayed that



this   court   to   direct   an   investigation   into   the   report   of   April,



1994 prepared by the NEERI at the instance of the RSPCB to



examine whether it was false or malafide.




54.    A   reply   has   been   filed   on   behalf   of   the   RSPCB.     At   the



outset   it   has   been   mentioned   that   similar   challenge   by   the



respondent   Nos.   4   to   8   regarding   the   factum   of   pollution   in



village Bichhri and it being attributed to the said respondents



had  been  dismissed  by  this court  on  many  occasions.     This



court   conclusively   reached   the   finding   that   the   respondent



Nos. 4 to 8, by indiscriminate discharge of their polluted trade



effluent is in utter disregard and violation of the provisions of



the Pollution Control and Environmental Protection Laws had



caused intense severe pollution of underground  water  and  of



soil in village Bichhri.  The veracity of the report of the NEERI


                                             60


has   already   been   upheld   by   this   court.     This   court   on



4.11.1997 passed the following order:



            "... ... ...In the affidavit of Progress Report, the

      Government   of   India   has   proposed   that   for   the

      purpose   of   undertaking   the   work   relating   to

      remedial   measures   for   the   National   Productivity

      Council   (NPC)   may   be   appointed   as   the   Project

      Management   Consultants   and   on   the   basis   of   the

      feasibility   report   submitted   by   the   NPC,   tenders

      may be invited for entrusting the remedial work.  It

      is   also   proposed   that   a   High   Level   Advisory

      Committee   would   be   constituted   consisting   of   the

      representatives from (1) Ministry of Environment &

      Forests (2) National Productivity Council (3) Central

      Pollution   Control   Board   (4)   NEERI   and   (5)

      Rajasthan   State   Pollution   Control   Board   to   review

      periodically and give directions and also to approve

      decisions   to   be   taken.     According   to   the   said

      affidavit work would be undertaken in two phases.

      The   cost   of   Phase-I   would   be   Rs.1.1   crores

      (Rs.50.00         lakhs         for          Project         Management

      Consultancy   and   Rs.60.00   lakhs   for   feasibility

      studies)   and   the   cost   of   Phase-II   (Actual

      Remediation) would come to Rs.40.1 crores.  In the

      additional   affidavit   of   Dr.   M.   Sengupta   detailed

      reasons   have   been   given   why   it   has   not   been

      possible   to   accept   the   report   of   the   Experts   on

      which reliance was placed by the respondents.   We

      have   perused   the   said   reasons   given   in   the   said

      additional affidavit filed on behalf of the Ministry of

      Environment   and   Forests   and   keeping   in   view   the

      reasons given therein.  We are unable to accept the

      report   of   the   Experts   on   which   reliance   has   been

      placed by the respondents.  We accept the proposal

      submitted   by   the   Government   of   India   for   the

      purpose of taking remedial measures by appointing

      National   Productivity   Council   as   the   Project


                                           61


       Management   Consultant.     In   our   opinion,   the

       Ministry  of Environment  & Forests, Government of

       India   has   rightly   made   a   demand   of   Rs.37.85

       crores.



       ...   ...   ...Since,   we   have   accepted   the   aforesaid

       proposal   of   the   Government   of   India,   we   put   it   to

       Shri N.D. Nanavati that in order that further steps

       as per the said proposal are taken the respondents

       should immediately deposit a sum of Rs.5.00 crores

       in   advance   so   that   the   National   Productivity

       Council   may   be   asked   to   undertake   the   work   of

       Project   Management   Consultant   and   have   the

       feasibility studies conducted and prepare the Terms

       of Reference for inviting the tenders.  Shri Nanavati,

       after taking  instructions from the representative of

       the   respondents,   expressed   the   inability   of   the

       respondents to deposit the said amount and states

       that they are in a position to deposit  Rs.5.00 lakhs

       only.     In   these   circumstances,   the   only   alternative

       left   is   to   direct   that   the   Ministry   of   Environment

       and   Forests   shall   take   the   necessary   steps   to

       implement the directions contained in the judgment

       of   this   Court.     All   that   we   will   say   at   this   stage   is

       that   the   decision   regarding   remedial   measures

       taken   on   the   basis   of   the   NEERI   Report   shall   be

       treated   as   final.     The   I.As.   are   disposed   of

       accordingly."




55.    In   the   reply   of   RSPCB   it   is   mentioned   that   respondent



No.   4   had   preferred   a   Contempt   Petition   (Criminal)   No.



7/1999   entitled  Hindustan   Agro   Chemical     v.     Alka   Kala


and   others  and   this   court   dismissed   the   contempt   petition


with the costs computed  at Rs.10,000/- while observing that


                                      62


there was no basis for contending that any of the respondents



have   been   guilty   of   fabrication   and   the   whole   contempt



application was without any merit.  




56.    In the reply it is also mentioned that the respondent Nos.



4   to   8   had   been   operating   their   industrial   plants   without



obtaining consent from the State Board, as required under the



provisions of the Water (Prevention & Control of Pollution) Act,



1974 and the Air (Prevention & Control of Pollution) Act, 1981



and   discharging   polluted   trade   effluent   indiscriminately



without providing any treatment so as to bring it in conformity



to the prescribed standards.   Discharge of this trade effluent



by the respondent Nos. 4 to 8 resulted into severe pollution of



underground   water   and   of   soil.     For   the   above   violation,   the



State   Pollution   Control   Board   filed   a   Criminal   complaint   No.



176/1999,   under   the   provisions   of   Section   43   read   with



Sections 24 and 44 read with Sections 25/26 of the Water Act



before   the   Court   of   Chief   Judicial   Magistrate,   Udaipur.     The



learned Chief Judicial Magistrate, Udaipur by its order dated



11.8.2004   found   the   accused   guilty   and   convicted   him   with


                                       63


imprisonment and fine both under Sections 43 and 44 of the



Water  Act.   The  said  conviction and  sentence   was  upheld  by



the   learned   Session   Judge,   Udaipur   in   its   judgment   dated



21.7.2005.     Against   the   judgment   dated   21.7.2005   of   the



learned   Sessions   Judge,   the   accused   preferred   Criminal



Revision   Petition   No.   634/2004   before   the   Rajasthan   High



Court at Jodhpur.   The Criminal Revision Petition is pending



adjudication before the High Court of Rajasthan at Jodhpur.




57.    While   denying   the   averments   of   the   application,   the



RSPCB   has   relied   on   paragraphs   14   and   15   of   the   affidavit



dated 18.9.2007 filed by M. Subba Rao, Director, MOEF.  The



said paras reads as under:



       "14. The applicant is making reference and reliance

       upon   the   recent   affidavit   filed   by   the   Ministry   of

       Environment   and   Forests,   Government   of   India

       dated 08.03.2007 to contend that the earlier report

       submitted   by   the   NEERI   was   a   result   of

       falsehood/malafide   on   the   parts   of   some   officers

       responsible for preparing the report.   At the outset

       it is submitted that neither in the report nor in the

       affidavit   of   the   Union   of   India   dated   08.03.2007   it

       has been stated that the earlier report submitted by

       National   Environmental   Engineering   Research

       Institute was incorrect.   The affidavit submitted by

       the   Union   of   India   on   08.03.2007   has   only   given

       the present status.  The report submitted by Union


                                      64


       of  India  along  with  the   affidavit   has not  dealt  with

       the correctness/incorrectness of the earlier reports

       submitted   by   National   Environmental   Engineering

       Research   Institute   to   this   Hon'ble   Court.     It   is

       submitted that on the basis of the affidavit filed by

       Union   of   India   on   08.03.2007   and   the   report

       submitted   therewith,   it   cannot   be   contended   that

       the   report   submitted   by   National   Environmental

       Engineering   Research   Institute   in   April   1994   was

       incorrect.  It is further submitted that the experts of

       Union of India have also not gone into an examined

       the merits of the earlier reports.



       15.    It is seen from paras 46-47 of the judgment of

       this   Hon'ble   Court   reported   in   the   order   dated

       13.2.1996   (reported   at   (1996)   3   SCC   212   at   227-

       231) that a challenge was already attempted by the

       respondents   on   the   reports   of   NEERI   before   this

       Hon'ble Court at the time of hearing."




58.    It   may   be   pertinent   to   mention   here   that   on   22.8.1990



this court had appointed Mr. Mohinder Vyas as Commissioner



to inspect the wells and assess the degree of pollution created



by the operation of H-acid plant and the nature and extent of



the  remedial  operations.     In  pursuance   of  the   directions,  the



Commissioner   visited   the   site   from   31st  August   to   4th



September,   1990,   conducted   detailed   survey   and   also



collected   samples   from   a   number   of   wells   and   drains.     The



Commissioner   in   his   report   dated   20.7.1991   indicated   that


                                        65


the   overall   quality   of   ground   water   in   the   area   had   become



highly polluted, the water had become unfit for consumption



by man or animal and was not even fit for irrigation.




59.    This Court by its order dated 17.2.1992 further directed



that   the   MOEF   to   inspect   the   area   and   ascertain   about   the



existence   and   extent   of   Gypsum   and   Iron   based   sludge   over



there.  In pursuance of the above directions, a team of experts



of   MOEF   visited   the   site   on   6.3.1992   and   assessed   the



position   in regard  to  storage  of sludge  collected   from   various



sites and presence of sludge in the factory premises.  Samples



of   water   of   wells   around   the   factory   were   also   collected   for



analysis.     The   Union   of   India   in   an   affidavit   filed   before   this



court in pursuance of the said directions stated as follows:



       "...   ...   ...   That   the   report   would   reveal   that   the

       extent of pollution in ground water seems to be very

       great and the entire aquifer may be effected due to

       the pollution caused by the industry.



       ...   ...   ...As   the   mother   liquor   produced   during   the

       process   (with   pH-1.0)   was   highly   acidic   in   nature

       and was indiscriminately discharged on land by the

       unit, it is possible that this might have eroded the

       soil   and   caused   the   extensive   damage.     It   is   also

       possible   that   organic   contents   of   mother   liquor


                                     66


       would have gone into soil with water to give radish

       colour.



       In another inspection in July, 1992 carried out by a

       team   of   experts   of   Ministry   of   Environment   &

       Forests and Central Pollution Control Board, it was

       observed:



                    "...   ...   ...A   part   of   effluent   from

              Sulphuric Acid Plant is being discharged

              inside the factory.   The effluent dissolves

              H-acid   sludge,   which   on   percolation   is

              likely   to   cause   further   pollution   of

              ground water... ... ..."




60.    In pursuance to the order dated 15.7.1992 of this court,



the officials of the MOEF  conducted  inspection on 7.10.1992



and observed as under:



              "...   ...   ...Untreated   effluent   from   the   solvent

       extraction  plant  and the  sulphuric  acid plant  were

       passing   through   the   sludge   dump   sites   unabated,

       which was resulting in further leaching of colour to

       ground water. ... ... ..."




61.    The MOEF in the month of September, 1993 submitted a



report which reads as under:



       "5.0 Conclusion



       5.1    On the basis of the observations and analysis

       results,   it   is   concluded   beyond   doubt   that   the

       sludge inside the entombed pit is the contaminated


                                        67


       one   as   is   evident   from   the   number   of   parameters

       analysed.



       5.2     The ground water is also contaminated due to

       discharge of H-acid plant effluent as well as H-acid

       sludge/contaminated   soul   leachates   as   shown   in

       the photographs and also supported by the results.

       The   analysis   results   revealed   good   correlation

       between the colour of well water and H-acid content

       in   it.     The   analysis   results   show   high   degree   of

       impurities   in   sludge/soil   and   also   in   well   water

       which is a clear indication of contamination of soil

       and ground water due to disposal of H-acid waste."




62.    The  report  which   was   based   upon  the   inspection  of  the



area   in   September,   1993   revealed   many   other   alarming



features.  In para 2, under the heading "Site Observations and



Collection   of   Sludge/Contaminated   Soil   Samples",   the



following facts were stated:



       "2.1 The   Central   team,   during   inspection   of   the

               premises   of   M/s.   HACL   observed   that   H-acid

               sludge   (iron/gypsum)   and   contaminated   soil

               are   still  lying   at  different  places,   as  shown  in

               Fig.1,   within   the   industrial   premises

               (photograph   1)   which   are   the   leftovers.     The

               area,   where   the   solar   evaporation   pond   was

               existing with H-acid sludge  dumped here and

               there, was observed to have been leveled with

               borrowed   soil  (photograph   2).     It   was   difficult

               to   ascertain   whether   the   sludge   had   been

               removed   before   filling.     However,   there   are

               visual   evidences   of   contaminated   soil   in   the

               area.


                                  68





 2.2    As   reported   by   the   Rajasthan   State   Pollution

        Control Board (RSPCB) representatives, about

        720   tonne   out   of   the   total   contaminates   soil

        and   sludge   scraped   from   the   sludge   dump

        sites   id   disposed   in   six   lined   entombed   pits

        covered  by  lime/fly  ash  mix,  brick  soling  and

        concrete   (photographs   3   and   4).                 The

        remaining  scrapped  sludge   and  contaminated

        soil was lying near the entombed pits for want

        of   additional   disposal   facility.           However,

        during   the   visit,   the   left   over   sludge   and

        contaminated  soil could not be traced  at site.

        Inspection   of   the   surrounding   area   revealed

        that   a   huge   heap   of   foreign   soil   of   5   meter

        height (photograph 5) covering a large area, as

        also   indicated   in   Fig.   1,   was   raised   on   the

        sloppy   ground   at   the   foothill   within   the

        industry   premises.     The   storm   water   run-off

        pathway over the area showed indication of H-

        acid sludge leachates coming out of the heap.

        Soil in the area was sampled for analysis.



 2.3    M/s.   HACL   has   a   number   of   other   industrial

        units   which   are   operating   within   the   same

        premises   without   valid   consents   from   the

        Rajasthan   State   Pollution   Control   Board

        (RSPCB).     These   plants   are   Sulphuric   Acid

        (H SO ),   fertilizer   (SSP)   and   vegetable   oil
          2    4

        extraction.  The effluent of these units are not

        properly   treated   and   the   untreated   effluent

        particularly   from   the   acid   plant   is   passing

        through   the   sludge   dump   area   playing   havoc

        (photograph 7). The final effluent was collected

        at   the   outlet   of   the   factory   premises   during

        operation of these units, at the time of ground

        water   monitoring   in   September,   1993,   by   the

        RSPCB.   Its quality was observed to be highly

        acidic   ( H:     1.08,   Conductivity:   37,100   mg/l,
                    p


                                             69


             SO :21,000   mg/l,   Fe:   392   mg/l,   COD:   167
                 4

             mg/l)     which   was   also   revealed   in   the   earlier

             visits   of   the   Central   teams.     However,   these

             units were not in operation during the present

             visit."



63.    Under para 4.2.1, the reported stated inter alia:



                      "The         sludge          samples         from         the

             surroundings   of   the   (presently   non-existent)

             solar   evaporation   and   the   contaminated   soil

             due   to   seepage   from   the   newly   raised   dump

             site   also   exhibited   very   high   values   of   the

             above   mentioned   parameters.     This   revealed

             that the contaminated soil is buried under the

             new dump found by the team."




64.    In   the   reply   it   is   also   mentioned   that   the   NEERI



submitted   its   report   in   April,   1994   on   the   restoration   of



environmental quality of the area surrounding village Bichhri,



severally affected due to discharge of trade effluent and other



industrial wasters by respondent Nos. 4 to 8.  The report was



submitted   before   this   court   in   pursuance   of   its   directions   in



the   matter.     The   report   states   that   the   studies   were   carried



out   by   the   NEERI   between   September,   1992   and   February,



1994.  The report had been considered by this court at length



on   its   own   merits   and   the   observations   of   the   court   on   the


                                       70


report   are   contained   in   the   judgment   pronounced   by   it   on



13.2.1996.




65.    In   the   reply   it   is   also   stated   that   this   court   besides



considering the report of the NEERI also looked into a number



of   reports   pertaining   to   inspections,   surveys,   studies   and



analysis of wastes and waste waters carried out by the experts



of   the   MOEF,   Central   Pollution   Control   Board   (for   short



`CPCB') and the R.S.P.C.B on various occasions, while hearing



the   matter   and   pronouncing   the   judgment   therein   on



13.2.1996.   Therefore, it is totally incorrect and erroneous to



contend   that   the   order   dated   13.2.1996   was   solely   based



upon   the   report   submitted   by   the   NEERI.     Para   IV   of   the



conclusions   of   the   judgment   dated   13.2.1996   observed   as



follows:



             "...   ...   ...this   court   has   repeatedly   found   and

       has   recorded   in   the   orders   that   it   is   respondents

       who   have   caused   the   said   damage.     The   analysis

       reports   obtained   pursuant   to   the   directions   of   the

       court   clearly   establish   that   the   pollution   of   the

       wells   is   on   account   of   the   wastes   discharged   by

       respondent Nos. 4 to 8 i.e. production of `H' Acid...

       ... ..."


                                       71


66.    In its reply the RSPCB further stated that the respondent



Nos. 4 to 8 filed a Writ Petition No. 338/2000 challenging the



judgment of this court dated 13.2.1996.  This court dismissed



the   petition,   by   order   dated   18.7.2002,   having   regard   to   the



principles laid down in Rupa Ashok Hurra v.  Ashok Hurra


& Another (2002) 4 SCC 388.




67.    The   RSPCB   also   stated   in   its   reply   that   this   court   by



order   dated   4.11.1997   directed   the   MOEF   to   take   necessary



steps   to   implement  the   directions   contained  in  the   judgment



dated 13.2.1996 and accepted the proposals submitted by the



MOEF   for   the   purpose   of   taking   remedial   measures   by



appointing National Productivity Council (for short NPC), New



Delhi   as   Project   Management   Consultant.   Pursuant   to   these



directions,   the   MOEF   awarded   the   work   of   conducting



feasibility   studies   for   suggesting   alternative   methods   for



remediation   of   affected   environment   in   Bichhari,   to   a



consortium   of   consultants   namely:     M/s.   SENES   Consultant



Limited,   Canada   and   the   NEERI,   Nagpur.     The   above



consultants in their report stated that an area of 540 hectares


                                     72


had   been   affected   due   to   industrial   waste   and   needed



remediation of contaminated ground water and soil.  The said



report   categorically   stated   about   contamination   of   ground



water and of soil by H-acid.  The report has been submitted by



the MOEF before this court in January, 2005.   This court on



9.12.2004 made the following order:



           "...   ...   ...The   company   M/s.   Hindustan   Agro

     Chemical Limited, which is one of the respondents

     in   the   main   Writ   Petition   has   filed   a   Petition

     supported by an affidavit of one Shri D.P. Agarwal,

     a   Director   in   the   respondent   Nos.   4-8   companies

     enclosing   therewith   certain   reports   of   the   experts.

     It is the claim of the applicant that at present, the

     effects caused by pollution on account of operation

     of   the   concerned   industries   do   not   exist   and

     remedial   measures,   as   contemplated   in   the   main

     judgment   of   this   Court   need   not   be   undertaken.

     The   respondents   namely:     UOI,   the   State   of

     Rajasthan   and   the   Rajasthan   State   Pollution

     Control   Board   as   well   as   the   petitioner   will   give

     their responses, if any, to this I.A.  The Government

     of   India   may   depute   an   expert   and   be   along   with

     the   expert   nominated   by   the   Rajasthan   State

     Pollution   Control   Board   and   the   nominee   of   the

     State   Rajasthan   shall   visit   the   spot   after   giving

     intimation   to   the   Petitioner-Indian   Council   for

     Enviro   Legal   Action   and   verify   the   facts   stated   in

     the   affidavit   and   report   the   latest   position   to   the

     Court by the next date of hearing... ... ..."


                                      73


68.    An additional affidavit was also filed on behalf of MOEF



on the same lines and graphic description of existence of the



pollution has affected the ground water to an extent that the



entire aquifer may be affected due to the pollution caused by



the  industry.    The  report  further   reveals   that the   problem  in



relation to the area in question is basically the contamination



of   water   and   the   major   factor   contributing   to   the   cause   has



been  the   improper   disposal  of  sludge  and   liquid  wastes  from



the  unit.    It  has  been  recommended   by  the  expert  team  that



due   to   leachable   components   of   the   sludge   the   industry



should prepare a double line pit containing impervious liners



comprising   impervious   clay   and   polyethylene   sheets.     The



sludge   should   be   placed   in   this   lined   pit   and   covered   with



water   proof   layering   to   such   extent   that   no   water   can



percolate through the stored sludge.  The soil in the premises



of the industry has also been contaminated by the disposal of



liquid   effluents   as   well   as   the   sludge   on   the   ground.     The



contaminated   soil   needs   to   be   removed   and   the   entire   area



should be revamped.   All industrial activities going on in the



premises should be stopped to enable the revamping process.


                                       74





69.    Mr.   Shanti   Bhushan   and   Mr.   Prashant   Bhushan,



learned senior counsel in the written submissions filed by the



respondent Nos. 4 to 8 have quoted this court's direction. The



same is reproduced as under :-



       "The   Central   Government   shall   determine   the

       amount   required   for   carrying   out   the   remedial

       measures....The              Secretary         shall         thereupon

       determine   the   amount   in   consultation   with   the

       experts   of the   Ministry.........the   said   amount  shall

       represent the amount which respondents 4 to 8 are

       liable   to   pay   to   improve   and   restore   the

       environment   in   the   area....the   factories,   plant,

       machinery   and   all   other   immovable   assets   of

       respondents   4   to   8   are   attached   herewith.     The

       amount   so   determine   and   recovered   shall   be

       utilized   by   the   MEF   for   carrying   out   all   necessary

       remedial   measures   to   restore   the   soil,   water

       resources   and   the   environment   in   general   of   the

       affected area to its former state."




70.    According   to   respondent   nos.  4   to   8,   two   reports   of   the



NEERI of the same date were at variance with each other.   In



one   report,   the   cost   of   remediation   is   mentioned   as   Rs.3



crores whereas in other report presented before the court, the



amount was 37.385 crores.


                                    75


71.    Mr.   Bhushan,   learned   senior   counsel   has   submitted   in



his written submission that according to the original report, it



was reported by the RSPCB that most of the wells within 1.5



km   radius   of   the   chemical   plants   of   the   respondents   were



contaminated whereas according to the modified report those



wells were located within 6.5 km radius.




72.    Mr.   Bhushan   has   also   submitted   that   the   sludge   had



been   stored   under   the   supervision   of   the   RSPCB   whereas



according   to   the   modified   report   the   industry   had   scattered



the sludge in an unmindful clandestine manner causing gross



pollution to avoid penal liability.




73.    Reference has been made to the  opinion of some experts



whose   opinions   were   obtained   at   the   behest   of   respondent



nos. 4 to 8.   Their  reports  are contrary  to the earlier reports



given by the other experts.




74.    In   the   written   submissions   it   is   mentioned   that   M/s



Hindustan   Zinc   Limited   was   responsible   for   discharging



noxious and polluting effluents.


                                    76





75.    According to the applicant-industry, the RSPCB has not



taken a consistent stand.




76.    In   the   supplementary   submissions   filed   by   Mr.   K.B.



Rohatagi,   the   learned   counsel   appearing   on   behalf   of



R.S.P.C.B.,   it   is   mentioned   that   in   Interlocutory   Application



Nos.   36   and   44   the   applicant-industry   has   resurrected   the



same   grounds   which   have   previously   been   settled   by   this



court in Indian Council for Enviro-Legal Action and others



v.  Union of India and Others (1996) 3 SCC 212.




77.    Mr.   Rohatagi   also   submitted   in   the   supplementary



submissions   that   the   question   of   liability   and   the   amounts



payable   by   the   applicants   based   on   the   NEERI   report   has



been decided by the judgment in the writ petition.   The review



petition against the said judgment was also dismissed by this



court.     On   4.11.1997   the   applicants   had   even   given   an



undertaking   that   they   would   not   dispute   any   fresh   estimate



for   remedial   measures   as   prepared   by   the   NEERI.     The



question of fraud and tampering of the NEERI report of 1994


                                          77


has   been   dealt   with   by   this   court   while   dismissing   the



contempt   petition   filed   by   the   applicants   against   the



R.S.P.C.B.   Even the Curative Petition filed by the applicants



was also dismissed by this court on 18.7.2002.




78.    In   the   supplementary   submissions   it   is   also   mentioned



that   through   Interlocutory   Application   Nos.   36   and   44   the



applicants   are   merely   trying   to   evade   paying   the   amounts   to



be   paid   as   remedial   measures   by   reopening   issues   already



settled  by   this   court.       In   the   submissions   Mr.   Rohatagi   has



drawn our attention to para 66 of the said judgment regarding



the applicant's liability, which reads as under:



       "66. Once the law in Oleum Gas Leak case is held

       to   be   the   law   applicable,   it   follows,   in   the   light   of

       our         findings         recorded         hereinbefore,          that

       Respondents   4   to   8   are   absolutely   liable   to

       compensate   for   the   harm   caused   by   them   to   the

       villagers in the affected area, to the soil and to the

       underground   water   and   hence,   they   are   bound   to

       take   all   necessary   measures   to   remove   the   sludge

       and   other   pollutants   lying   the   affected   area   (by

       affected   area,   we   mean   the   area   of   about   350   has

       indicated   in   the   sketch   at   p.   178   of   NEERI   report)

       and   also   to   defray   the   cost   of   the   remedial

       measures   required   to   restore   the   soil   and   the

       underground water resources."


                                       78


79.    It is also submitted in the written  submissions that the



Central   Government   was   directed   to   determine   the   amounts



for remedial measures for the affected area of 350 hectares, as



mentioned  in  the  NEERI  report,  after  allowing the applicants



to   make   a   representation.    This   court   in   para   70   of   the   said



judgment observed as under:



       "Chapters   VI   and   VII   in   the   NEERI   Report

       (submitted in 1994) shall be deemed to be the show

       cause   notice   issued   by   the   Central   Government

       proposing   the   determination   of   the   said   amount.

       Within six weeks from this day, Respondents 4 to 8

       shall   submit   their   explanation,   along   with   such

       material   as   they   think   appropriate   in   support   of

       their   case,   to   the   Secretary,   Ministry   of

       Environment   and   Forests,   Government   of   India

       (MOEF).     The   Secretary   shall   thereupon   determine

       the amount in consultation with the experts of his

       Ministry  within six weeks  of the  submission  of the

       explanation   by   the   said   respondents.     The   orders

       passed   by   the   Secretary   (MOEF)   shall   be

       communicated   to   Respondents   4   to   8   -   and   all

       concerned   -   and   shall   also   be   placed   before   this

       Court"




80.    This   court   in   the   said   judgment   also   directed   that   the



factories, plant, machinery and all other immovable assets of



Respondents   4   to   8   are   attached   herewith.     The   court   also



observed that the amount so determined  and recovered shall


                                      79


be   utilized   by   the   MOEF   for   carrying   out   all   necessary



remedial measures to restore the soil, water resources and the



environment   in   general   of   the   affected   area   in   the   former



state.




81.    It is also submitted in the supplementary submissions of



RSPCB   that   this   court   in   para   70   of   the   said   judgment   also



observed   that   the   applicants   have   inflicted   untold   misery



upon   the   poor,   unsuspecting   villagers,   despoiling   their   land,



their   water   resources   and   their   entire   environment,   all   in



pursuance   of   their   private   profit.     They   have   forfeited   all



claims for any consideration by this court.




82.    In the supplementary submissions filed by Mr. Rohatagi



it is also mentioned that the court even settled the issue of the



alleged hostility of the RSPCB towards the applicants and felt



no reason to suspect the veracity of the reports submitted by



the   RSPCB.       This   court   in   para   39   of   the   said   judgment



observed as under:



       "If   the   respondents   establish   and   operate   their

       plants   contrary   to   law,   flouting   all   safety   norms

       provided by law, the RSPCB was bound to act.   On


                                       80


       that  account,   it  cannot   be   said   to   be  acting  out   of

       animus   or   adopting   a   hostile   attitude.     Repeated

       and   persistent   violations   call   for   repeated   orders.

       That is no proof of hostility.   Moreover, the reports

       of   RSPCB   officials   are   fully   corroborated   and

       affirmed   by   the   reports   of   the   Central   team   of

       experts and of NEERI.  We are also not prepared to

       agree with Shri Bhat that since the report of NEERI

       was   prepared   at   the   instance   of   RSPCB,   it   is

       suspect."




83.    It   is   further   submitted   in   the   supplementary



submissions   that  in  para   55   of   the   said   judgment   this  court



specifically   held   that   Hindustan   Zinc   Limited   is   not



responsible for the pollution at Bichhri village.  The court has



observed as under:



       "No report among the several reports placed before

       us   in   these   proceedings   says   that   Hindustan   Zinc

       Limited  is  responsible for  the  pollution at Bicchhri

       village.     Shri   Bhat   brought   to   our   notice   certain

       reports stating that the discharges from Hindustan

       Zinc   Limited   were   causing   pollution   in   certain

       villages   but   they   are   all   downstream,   i.e.,   to   the

       north   of   Bichhri   village   and   we   are   not   concerned

       with   the   pollution   in   those   villages   in   these

       proceedings.     The   bringing   in   of   Hindustan   Zinc

       Limited   in   these   proceedings   is,   therefore,   not

       relevant.  If necessary, the pollution, if any, caused

       by   Hindustan   Zinc   Limited   can   be   the   subject-

       matter of a separate proceeding."


                                       81


84.    It is also further mentioned in the written submission of



RSPCB that the issue of quantification of amounts to be paid



by   the   industry   has   been   settled   by   this   court   in   its   order



dated   4.11.1997.     The   relevant   portion   of  the   order   reads   as



under:



       "...   ...   ...remedial   measures   taken   on   the   basis   of

       the NEERI report shall be treated as final.



             We   accept   the   proposal   submitted   by   the

       Government   of   India   for   the   purpose   of   taking

       remedial   measures   by   appointing   National

       Productivity   Council   as   the   Project   Management

       Consultant.     In   our   opinion   the   Ministry   of

       Environment and Forests, Government of India has

       rightly made a demand for Rs.37.385 crores."




85.    It   is   also   mentioned   in   the   supplementary   submissions



that this court on 3.8.2005 directed that the sale should take



place   expeditiously   to   realize   the   amount   for   remedial



measures.   The assessment of areas affected by the pollution



and settled by the District Collector at 642 hectares was also



accepted by this court vide its order dated 3.8.2005.




86.    It   may   be   pertinent   to   mention   that   this   court   had



accepted the affidavit of Mr. S.N. Kaul, Acting Director, NEERI


                                        82


regarding   tampering   with   the   report   and   this   court   by   its



order dated 1.10.1999 observed as under:



             "It   appears   that   two   scientists   appointed   by

       the petitioner had inspected a report in the office of

       NEERI   and   then   observed   that   there   has   been   a

       fabrication   carried   out   by   the   Pollution   Control

       Board.     From   what   has   been   stated   hereinabove,

       the charge of fabrication is clearly unfounded.  It is

       possible   that   these   two   scientists   may   have   seen

       the draft report which would be with the NEERI but

       the   original   report   when   prepared   would   be   one

       which was, ultimately, submitted to the sponsoring

       agency,   namely   the   Rajasthan   Pollution   Control

       Board and it is only a copy of the same which could

       have   been   retained   by   the   NEERI.     Be   that   as   it

       may,   it   is   clear   that   what   has   been   filed   in   this

       Court   as   being   the   final   report   of   NEERI   was   the

       copy   of   the   final   report   which   was   received   by   it.

       There   is   no   basis   for   contending   that   any   of   the

       respondents   have   been   guilty   of   fabrication.     The

       whole   application   to   our   mind   is   without   any

       merit."




87.    It   is   further   submitted   in   his   supplementary



submissions   that   this   court   in   para   54   of   its   order   dated



13.2.1996   had   upheld   the   integrity   of   the   reports   submitted



by   the   NEERI.     Para   54   of   order   dated   13.2.1996   reads   as



under:



       "Moreover,   the   reports   of   RSPCB   officials   are   fully

       corroborated   and   affirmed   by   the   reports   of   the

       central team of experts and of the NEERI.   We are


                                      83


       also not prepared to agree with Shri Bhat that since

       the   report   of   the   NEERI   was   prepared   at   the

       instance of  RSPCB,  it is suspect.   This  criticism  is

       not   only   unfair   but   is   also   uncharitable   to   the

       officials of NEERI who have no reason to be inimical

       to the respondents.   If, however, the actions of the

       respondents invite the concern of the experts and if

       they   depict   the   correct   situation   in   their   reports,

       they cannot be accused of any bias.

                                 ... ... ...

                                 ... ... ...

       The   persons   who   made   the   said   reports   are   all

       experts in their field and under no obligation either

       to the RSPCB or for that matter to any other person

       or industry.  It is in view of their independence and

       competence that their reports were relied upon and

       made the basis of passing orders by this court from

       time to time."




88.    In   the   supplementary   submissions   it   is   also   mentioned



that the report  of 25th  January, 2005 is a joint report by the



NEERI, R.S.P.C.B. and officers of Department of Environment,



Government   of   Rajasthan.     The   team   collected   soil   samples



from   7   sites,   one   sample   from   lake   Udaisagar   and   17   well



water   samples   from   the   impacted   and   nearby   areas.     The



report concluded as under:



       "All   the   well   water   samples   in   the   impacted   zone

       have   also   shown   colour   from   pale   yellow   to   dark

       brown.   As the industries  located within the HACL

       plant   premises   were   the   only   source   of   H-acid,

       HACL alone is responsible for causing pollution by


                                       84


       H-acid   and   its   derivatives   in   the   impacted   area.

       Considering   the   remediation   goal   of   Omg/l   for   H-

       acid   and   its   derivatives   are   potential   carcinogenic,

       all   well   waters,   contaminated   with   H-acid   and   its

       derivatives, require remediation.

                           ... ... ...

                           ... ... ...


       Sudden   emergence   of   H-acid   in   wells   W7(Aug.99)

       and W9 (Aug. 99) clearly indicate that the plume of

       H-acid   contaminated   groundwater   is   moving   away

       from   the   source   of   origin   and   spreading   in   the

       direction   of   groundwater   flow.     This   is   further

       confirmed   from   another   fairly   conservative

       parameter   TDS   whose   emergence   has   been

       documented in all the wells (W7, W9, W1, W13 and

       W16)   from   time   to   time.   Similar   trend   could   be

       observed   with   respect   to   sulphate   and   chloride   in

       well   water   samples   collected   from   these   five   wells.

       Comparison   of   the   results   obtained   in   the   present

       study with that of earlier studies establish that the

       ground   water   plume   contaminated   by   H-acid   and

       its   derivatives   is   still   moving   in   the   direction   of

       ground   water   flow   thereby   contamination   area

       being   larger   than   that   earlier.     This   was   predicted

       in   the   joint   report   prepared   by   SENES   and   the

       NEERI (SENES and the NEERI, 2002)."




89.    This   report   was   submitted   to   the   court   along   with   the



affidavit dated 8.3.2007 filed by the Union of India.




90.    In   the   supplementary   submissions   it   is   also   submitted



that   due   to   some   alleged   variations,   the   Director   of   ITRC



(Indian   Toxicological   Research   Centre)   was   asked   to   make   a


                                        85


rapid   assessment   on   6.5.2006.     In   response,   the   Director   of



ITRC   stated   that   there   may   be   a   variation   due   to   a   lapse   of



time   between   the   2002   and   2005   reports.     Based   on   this,



MOEF   asked   the   National   Chemical   Laboratory,   Pune   to



undertake   a   study,   the   results   of   which   (placed   before   the



Court   in   affidavits   of   22.1.07   and   8.3.2007)   showed   that   no



aspersions   can   be   cast   on   the   NEERI   report   of   1994.



Further,   it   would   be   incorrect   to   suggest   that   the   remedial



measures   as   imposed   on   the   applicants   were   limited   to



neutralizing the presence of H-acid in the soil alone, in fact it



is   clear   from   the   judgment   of   1996   and   subsequent   reports



that what has to be done is:



       a)    removal   of   sludge   which   has   also   percolated

             down in the soil; and



       b)    restoration   of   the   area   including   perforce,

             making   it   possible   for   farmers   and   others   to

             return to the natural uses of the affected land.




91.    It   is   further   submitted   in   the   supplementary



submissions   of   RSPCB   that   the   Interlocutory   Applications



Nos.   36   and   44   are   just   another   example   of   obstructive



litigation  undertaken to  avoid  responsibility.   Since 1996  the


                                        86


applicants have filed various applications and petitions in this



court   to   delay   the   payment   of   damages.   It   is   also   submitted



that any delay caused in the payment of damages for remedial



measures   has,   therefore,   been   on  the   part   of   the   applicants.



It would be wrong to suggest that the Union is responsible for



the   delay   in   sale   of   assets   of   the   industry.     The   applicants



have   violated   orders   of   this   court   in   relation   to   disclosure   of



assets dated 18.8.04, 9.12.04 and 17.3.05, because of which



it was impossible for the Union of India to sell the applicant's



attached properties.




92.    Mr. Rohatagi submitted that the applicants relied upon a



series   of   reports   by   private   consultants,   filed   subsequent   to



the decision, which are as follows:



       a)    IIT Bombay  Report of May  2005  suggesting  that

             the   samples   collected   on   5th  April,   2005   show

             that there is no H-acid or other pollutants.



       b) A   report   by   Dr.   BR   Bamniya   dated   22.4.04

             stating that no soil pollutants or water pollutants

             found and



                "...the   presence   of   H-acid   has   not   been

                recorded in any water sample of well and

                in tube well."


                                       87


       c) Report   of   Expert   Group   on   Water   Pollution   of

          March   1981   showing   that   pollution   caused   by

          M/s. Hindustan Zinc Ltd. Further no action has

          been taken against M/s. Hindustan Zinc Limited

          on the basis of that report.



       d) Report   of   M/s.   Shah   Doctor   Associates   of   April,

          1994 critical of the analysis in the NEERI report.



       e) Report   of   SP   Mahajan   of   IIT   Bombay   dated

          19.8.1999   stating   that   no   H-Acid   found   in   the

          well waters.



93.    It   is   further   submitted   in   the   supplementary



submissions   that   the   NEERI   report   of   2005   also   dealt   with



three   private   reports   which   were   rejected   on   the   basis   that



they were superficial.



94.    Mr.   Rohatagi   further   submitted   that   the   liability   of   the



applicants-industries has been fixed far back in 1996.  Merely



because   there   may   be   a   diminution   in   respect   of   some



pollutants   due   to   the   passage   of   time   does   not,   in   any   way,



take   away   from   the   responsibility   on   the   applicant   to



undertake   remedial   measures   for   the   past   and   continuing



damage   to   the   people   and   the   environment   caused   by   the



applicants-industries.     The individual claims of farmers may



be dealt within individual cases, which would not obviate the


                                      88


need   for   restoration   of   the   area.     This   flows   from   a   joint



reading of directions of the court in para 71 of the judgment



reported in Indian Council for Enviro-Legal Action (supra).




95.    According   to   the   RSPCB   Interlocutory   Application   Nos.



36   and   44   are   blatant   examples   of   vexatious   litigation



indulged   in   to   avoid   the   responsibility   fixed   by   this   court.



These   applications   should   be   dismissed   with   heavy   costs   on



the applicants.




96.    Mr. M.C. Mehta, Advocate has filed written submissions



on   behalf   of   Indian   Council   for   Enviro   Legal   Action.     It   is



reiterated   in   the   submissions   that   these   applications   are



blatant   disregard   towards   complying   with   the   directions   of



this court.    They have made mockery with the environmental



justice delivery system by filing these applications.  They have



shown no contrition for causing irreparable damage to the life,



health and property of the people affected by their commercial



activities.     The   applicants  are   trying   to   delay   the   payment   of



Rs.37.385   crores   for   carrying   out   remedial   measures.     This


                                     89


court in para 70 of the judgment reported in  Indian Council


for Enviro-Legal Action (supra) observed as under:


             "On   account  of   (the   respondents)   continuous,

       persistent   and   insolent   violations   of   the   law....and

       their   non-implementation   of   the   orders   of   this....

       (the   respondents)   have   earned   the   dubious

       distinction   of   being   characterized   as   "rogue

       industries".  They have inflicted untold misery upon

       the   poor,   unsuspecting   villagers,   despoiling   their

       land,   their   water   sources   and   their   entire

       environment - all in pursuit of private profit."




97.    Mr.   Mehta   also   submitted   in   his   submissions   that   the



applicants   (respondent   Nos.   4   to   8)   are   related   to   the



discharge   of   untreated   chemical   effluents   in   violation   of   the



laws   of   the   land   in   Bichhri   and   surrounding   villages   and



caused grave harm to the environment and people in Bichhri



and surrounding villages.




98.    In   the   written   submissions   Mr.   Mehta   also   submitted



that   the   reports   procured   by   the   respondent   companies   by



hiring   consultants   do   not   hold   any   weight   due   to   lack   of



substantial scientific investigations.   They cannot in any way



question   the   credibility   of   nine   scientific   reports,   submitted



following   extensive   field   visits,   survey   and   research   by


                                   90


scientists   from   reputed   scientific   institutions   such   as   the



CPCB, NEERI, SENES, RSPCB and the Centre for Science and



Environment and other reports, respectively submitted by the



district   collector   and   the   Court   Commissioner   appointed   by



this court.




99.    Mr.   Mehta   also   mentioned   in   his   written   submissions



that the veracity of the contents of the NEERI report has been



affirmed   in   at   least   four   subsequent   reports   from   reputed



scientific   organizations,  MOEF, State  of Rajasthan as well   as



the district collector.




100. Mr.   Mehta   has   also   submitted   that   assuming,   though



not conceding, that there is currently no pollution in Bichhri



village, this cannot absolve the applicants-industries from the



obligation   to   pay   monies   necessary   for   eco-restoration   and



damages caused to the life and health of the people as well as



their   property   in   the   past.   The   polluters/respondents



recklessly   destroyed   the   environment,   surface   and



underground water and the soil and killed fruit trees, animals



and   vegetation   apart   from   causing   suffering   and   irreparable


                                      91


damages  to  the  lands,  property,  life and health of the people



in   flagrant   violation   of   environmental   laws   and   directions



given by various authorities including the orders of this court.



The   civil   and   criminal   liability   upon   the   respondents   for   the



environmental   crimes,   irreparable   damages   caused   to   the



environment,   flora   and   fauna,   life,   health   and   property   of



innocent   people   living   in   Bichhri   and   surrounding   villages



cannot be condoned at any cost.



101. Mr.   Mehta   submitted   that   even   if   it   was   possible   to



accept that all H-acid traces have been removed, the presence



of   other   contaminants   in   the   affected   area   (including   highly



toxic   wastes   emanating   from   the   Sulphuric   Acid   Plant   and



other plants) would necessitate remediation.  The amount can



be deposited in a Fund and utilized for remediation, providing



potable   water,   tree   plantation,   and   such   other   measures



which  would be  helpful   to the  environment  of the area apart



from paying damages to the people.




102. Mr.   Mehta   has   further   submitted   that   this   court   may



impose   upon   the   errant   industries   as   exemplary   punitive


                                        92


damages   apart   from   the   amount   required   for   eco-restoration



by way of remediation of the land, water and the environment.



This   may   be   considered  in   the   light   of  the   continuing   public



nuisance   and   suffering   due   to   pollution,   severely   degraded



environment,   loss  to   the   property,   irreparable   damage   to   the



ecology   and   precious   natural   resources   -   land,   air,   aquifers,



surface   water,   flora   and   fauna   -   for   over   twenty   years   since



the   original   petition   was   filed.     The   implications   of   failing   to



remediate the affected land, water and environment over such



an extensive period of time are far more severe than had the



applicants-industries immediately complied with the orders of



this court.




103. Mr.   Mehta   also   placed   reliance   on   a   judgment   of   this



court in the case of M.C. Mehta v.   Kamal Nath and others



(2000) 6 SCC 213, in which the court observed as under:



             "...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


                                       93


      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."




104. Mr.   Mehta   submitted   that   having   regard   to   the



respondent's   conduct   in   the   present   case,   it   would   be



reasonable   to   impose   an   additional   pecuniary   penalty   on



them.     Reliance   is   placed   on  Minister   for   the   environment


and   Heritage   v.     Greentree   (No.3)   [2004]   FCA   1317,


wherein   the   Federal   Court   imposed   a   pecuniary   penalty



against the respondents totaling $450,000 for having illegally



cleared     declared   a   Ramsar   wetland.     A   strong   factor



contributing   to   the   imposition   of   a   substantial   penalty   was



because   the   actions   of   the   respondent   were   deliberate,



sustained   and   serious,   they   took   place   over   a   substantial



period   of   time   and   the   respondents   did   not   exhibit   any



contrition.


                                       94


105. Mr.   Mehta   also   submitted   that   the   present   case   would



warrant a severe penalty because the respondents carried out



their   activities   without   even   possessing   any   appropriate



licenses.     Respondents   must   be   required   to   pay   exemplary



damages   so   as   to   act   as   a   deterrent   for   others,   as   also   to



remedy   the   harm   they   have   caused   to   the   environment   and



the villagers of Bichhri.




106. Mr. Mehta has also placed reliance on the famous "Love



Canal Case"  United States v.   Hooker Chems and Plastics


Corp.,  722   F.   Supp   960   (W.D.N.Y.   1989).    This   case   was


initiated   after   it   was   discovered   that   a   school,   homes   and



rental   units   were   built   over   approximately   21,000   tonnes   of



chemical waste at Niagara Falls, New York.  The Federal Court



of New York allowed a claim against the defendants based on



public   nuisance.     This   case   was   ultimately   settled   with   the



defendant   agreeing   to   pay   $129   million   to   the   Environment



Protection Authority.   This case led to the development of the



Comprehensive   Response   Compensation   and   Environmental



Liability   Act,   1980,  more   commonly   referred   to   as   the


                                       95


"Superfund", into which polluters contribute monies to enable



clean-up of toxic sites.




107. In   the   written   submissions   filed   by   Mr.   Mehta   he   has



also mentioned about principle of accountability and it is the



duty   and   obligation   of   the   court   to   protect   the   fundamental



rights   of   the   citizens   under   Article   32   of   the   Indian



constitution.     Pollution   and   public   nuisance   resulting   from



mis-regulation infringes on the fundamental rights, including



the   right   to   life   under   Article   21   of   the   Indian   constitution.



Mr.   Mehta   also   submitted   that   applicants   are   liable   for



causing   continuous   suffering   to   the   people   in   Bichhri   and



surrounding villages.




108. Mr.   Mehta   also   submitted   in   his   written   submissions



that   in   several   cases   of   environmental   pollution   the   courts



have   ordered   the   payment   of   damages   by   the   errant



industries/individuals   responsible   for   causing   pollution   in



violation   of   environmental   related   issues   and   the   money



recovered   be   spent   for   remediation   or   eco-restoration   and



damages be paid to the victims or spent for their benefit.       It


                                     96


is the duty of the government to ensure proper administration



of   this   fund   in   a  transparent   and   accountable   manner.     The



establishment of such a fund would ensure that polluters take



responsibility   for   their   actions   and   that   monies   derived   from



penalties,   damages   and   settlement   are   directly   invested



towards   remediating   the   environmental   damage   that   has



occurred.




109. Mr.   Mehta   further   mentioned   in   his   submissions   that



creation   of   such   a   fund   would   be   consistent   with   the



precautionary principle which has been evolved and accepted



by this court.   He has also mentioned that similar funds have



been   set-up   in   United   States   of   America,   Canada,   Australia,



Malaysia and other countries.




110. Mr.   Mehta   also   made   a   reference   regarding  Public


Liability Insurance Act, 1991 which makes it mandatory for


industries handling hazardous material to be insured against



environmental   hazards.            However,   this   legislation   only



provides   relief   to   persons   affected   by   accidents   whilst



handling   hazardous   materials,   who   are   most   likely   to   be


                                      97


workers.     Members   of  the   local   community   would   not   obtain



relief   under   this   legislation,   though   they   are   also   adversely



affected   by   hazardous   industries.     This   is   most   pertinently



exemplified in the present case.




111. In   his   written   submissions   Mr.   Mehta   also   submitted



that the applicants clearly show defiance of the environmental



laws   and   the   orders   of   this   court.       Mr.   Mehta   prayed   for



dismissal of Interlocutory Application Nos. 36 of 2004 and 44



of   2007   with   heavy   costs   and   direct   the   respondents   to



deposit Rs.37.385 crores with the MOEF as per the judgment



of this court.



112. This case raises many substantial questions of law.   We



would briefly deal with some of them.



113. We   would  also  like   to   discuss   the   concept   of  Finality   of



the Judgment passed by the Apex Court.




FINALITY OF JUDGMENT


114. The   maxim   `interest   Republicae   ut   sit   finis   litium'   says



that it is for the public good that there be an end of litigation



after   a   long   hierarchy   of   appeals.     At   some   stage,   it   is


                                        98


necessary   to   put   a   quietus.     It   is   rare   that  in   an   adversarial



system,   despite   the   judges   of   the   highest   court   doing   their



best,   one   or   more   parties   may   remain   unsatisfied   with   the



most   correct   decision.     Opening   door   for   a   further   appeal



could be opening a flood gate which will cause more wrongs in



the society at large at the cost of rights.




115. It   should   be   presumed   that   every   proceeding   has   gone



through   infiltration   several   times   before   the   decision   of   the



Apex Court.   In the instant case, even after final judgment of



this court, the review petition was also dismissed.  Thereafter,



even   the   curative   petition   has   also   been   dismissed   in   this



case.     The   controversy   between   the   parties  must   come   to   an



end   at   some   stage   and   the   judgment   of   this   court   must   be



permitted   to   acquire   finality.     It   would   hardly   be   proper   to



permit   the   parties   to   file   application   after   application



endlessly.  In a country governed by the rule of law, finality of



the   judgment   is   absolutely   imperative   and   great   sanctity   is



attached   to   the   finality   of   the   judgment.       Permitting   the



parties   to   reopen   the   concluded   judgments   of   this   court   by


                                       99


filing repeated interlocutory applications is clearly an abuse of



the   process   of   law   and   would   have   far   reaching   adverse



impact on the administration of justice.



116. In  Manganese   Ore   (India)   Ltd.  v.  The   Regional


Assistant   Commissioner   of   Sales   Tax,   Jabalpur  (1976)   4


SCC 124 this court held that the doctrine of stare decisis is a



very valuable principle of precedent which cannot be departed



from   unless   there   are   extraordinary   or   special   reasons   to   do



so.




117. In     Green   View   Tea   &   Industries               v.     Collector,


Golaghat   and   Another  (2002)   1   SCC   109   this   court


reiterated the view that finality of the order of the apex court



of the country should not lightly be unsettled.




118. A     three-Judge   Bench   of   this   court   in  M/s   Northern


India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2


SCC 167 held  that a party is not entitled to seek a review of



this court's judgment merely for the purpose of rehearing and



for   a   fresh   decision   of   the   case.     Departure   from   the   normal



principle that the court's judgment is final would be justified


                                     100


only when  compelling  our substantial  circumstances make it



necessary   to   do   so.     Such   circumstances   may   be   that   a



material   statutory   provision   was   not   drawn   to   the   court's



attention at the original hearing or a manifest wrong has been



done.




119. In  Union   of   India   &   Another  v.  Raghubir   Singh


(Dead)   by   L.Rs.  (1989)   2   SCC   754,   this   Court   held   that  the


plea   for   reconsideration   is   not   to   be   entertained   merely



because   the   petitioner   chooses   to   reagitate   the   points



concluded by the earlier decision in Sub-committee on Judicial



Accountability.




120. In  Mohd.   Aslam  v.  Union   of   India   &  Others  (1996)   2



SCC 749, the Court considered the earlier decisions and held



that   the   writ   petition   under   article   32   of   the   Constitution



assailing   the   correctness   of   a   decision   of   the   Supreme   Court



on merits or claiming reconsideration is not maintainable.




121. In  Khoday Distilleries Ltd. and Another  v.  Registrar


General,   Supreme   Court   of   India  (1996)   3   SCC   114,   the


                                     101


Court   held   the   reconsideration   of   the   final   decision   of   the



Supreme   Court   after   review   petition   is   dismissed   by   way   of



writ   petition   under   article   32   of   the   Constitution   cannot   be



sustained.



122. In  Gurbachan   Singh &  Another  v.  Union  of  India  &


Another (1996) 3 SCC 117, the Court held that the judgment


order of this court passed under Article 136 is not amenable



to judicial review under Article 32 of the Constitution.




123. Similar   view   was   taken   in  Babu   Singh   Bains   and


others  v.  Union   of   India   and   Others  (1996)   6   SCC   565,   a


three-Judge   bench   of   this   Court   held   that   a   writ   petition



under   Article   32   of   the   Constitution   against   the   order   under



Article 136 of the Constitution is not maintainable.




124. Another three-Judge bench of this Court in  P. Ashokan



v.  Union of India & Another  (1998) 3 SCC 56, relying upon



the earlier cases held that the challenge to the correctness of



a   decision   on   merits   after   it   has   become   final   cannot   be



questioned by invoking Article 32 of the Constitution.   In the


                                        102


instant case the petitioner wants to reopen the case by filing



the interlocutory application.




125. In  Ajit   Kumar   Barat  v.  Secretary,   Indian   Tea


Association   &   Others  (2001)   5   SCC   42,   the   Court   placed


reliance   on   the   judgment   of   a   nine-judge   Bench   in  Naresh


Shridhar Mirajkar  v.  State of Maharashtra and another


AIR 1967 SC 1 and the Court observed as under:



              "It is difficult  to see how this decision can be

       pressed   into   service   by   Mr.   Setalvad   in   support   of

       the   argument   that   a   judicial   order   passed   by   this

       Court was held to be subject to the writ jurisdiction

       of   this   Court   itself....   In   view   of   this   decision   in

       Mirajkar case  it must be taken as concluded that

       judicial proceedings in this Court are not subject to

       the writ jurisdiction thereof."




126. The Court in the said case observed that having regards



to   the   facts   and   circumstances   of   the   case,   this   is   not   a   fit



case to be entertained to exercise jurisdiction under Article 32



of the Constitution.




127. In Mr. "X"  v. Hospital "Z" (2000)9 SCC 439, this Court



held thus:


                                      103


         "Writ   petition   under   Article   32   of   the

      Constitution   against   the   judgment   already   passed

      by   this   Court   cannot   be   entertained.   Learned

      counsel   for   the   petitioner   stated   that   prayer   (a)

      which   seeks   overruling   or   setting   aside   of   the

      judgment already passed in  Mr X  v.  Hospital  Z  may

      be deleted. This prayer shall accordingly be deleted.

      So also, the other prayers which indirectly concern

      the   correctness   of   the   judgment   already   passed

      shall   stand   deleted.   Learned   counsel   for   the

      petitioner   stated   that   the   petition   may   not   be

      treated   as   a   petition   under   Article   32   of   the

      Constitution   but   may   be   treated   as   an   application

      for   clarification/directions   in   the   case   already

      decided   by   this   Court,   viz.,  Mr   X  v.  Hospital   Z  (CA

      No. 4641 of 1998)."





128. In  Triveniben  v.  State   of   Gujarat  (1989)1   SCC   678



speaking   for   himself   and   other   three   learned   Judges   of   the



Constitution   Bench   through   Oza,   J.,   reiterated   the   same



principle.  The court observed: (SCC p. 697, para 22)



            "...It   is   well   settled   now   that   a   judgment   of

      court can never be challenged under Articles 14 or

      21   and   therefore   the   judgment   of   the   court

      awarding   the   sentence   of   death   is   not   open   to

      challenge as violating Article 14 or Article 21 as has

      been laid down by this Court in  Naresh Shridhar

      Mirajkar (supra) and also in A.R. Antulay v. R.S.

      Nayak, the only jurisdiction which could be sought

      to be exercised by a prisoner for infringement of his

      rights   can   be   to   challenge   the   subsequent   events

      after the final judicial verdict is pronounced and it

      is   because   of   this   that   on   the   ground   of   long   or


                                     104


    inordinate   delay   a   condemned   prisoner   could

    approach   this   Court   and   that   is   what   has

    consistently been held by this Court. But it will not

    be   open   to   this   Court   in   exercise   of   jurisdiction

    under   Article   32   to   go   behind   or   to   examine   the

    final   verdict   reached   by   a   competent   court

    convicting and sentencing the condemned prisoner

    and   even   while   considering   the   circumstances   in

    order   to   reach   a   conclusion   as   to   whether   the

    inordinate   delay   coupled   with   subsequent

    circumstances   could   be   held   to   be   sufficient   for

    coming   to   a   conclusion   that   execution   of   the

    sentence of death will not be just and proper...."





129. In Rupa Ashok Hurra (supra), this Court observed thus:



    24.    ... when reconsideration of a judgment of this

    Court is sought the finality attached both to the law

    declared   as   well   as   to   the   decision   made   in   the

    case,   is   normally   brought   under   challenge.   It   is,

    therefore,   relevant   to   note   that   so   much   was   the

    value attached to the precedent of the highest court

    that in  The  London Street Tramways Co. Ltd.  v.

    London County Council  (1898 AC 375)  the House

    of Lords laid down that its decision upon a question

    of law was conclusive and would bind the House in

    subsequent   cases   and   that   an   erroneous   decision

    could be set right only by an Act of Parliament.

                                ... ... ...

                                ... ... ...



    26.    ...This   Court   will   not   sit   as   a   court   of   appeal

    from   its   own   decisions,   nor   will   it   entertain

    applications to review on the ground only that one

    of   the   parties   in   the   case   conceives   himself   to   be

    aggrieved   by   the   decision.   It   would   in   our   opinion

    be   intolerable   and   most   prejudicial   to   the   public


                                105


interest if cases once decided by the Court could be

reopened and reheard:

          "There   is   a   salutary   maxim   which

      ought to be observed by all courts of last

      resort   --  interest   reipublicae   ut   sit   finis

      litium.   (It   concerns   the   State   that   there

      be an end of lawsuits. It is in the interest

      of the State that there should be an end

      of   lawsuits.)   Its   strict   observance   may

      occasionally   entail   hardship   upon

      individual   litigants,   but   the   mischief

      arising from that source must be small in

      comparison   with   the   great   mischief

      which   would   necessarily   result   from

      doubt   being   thrown   upon   the   finality   of

      the decisions of such a tribunal as this."



32. "...When this Court decides questions of law, its

decisions   are,   under   Article   141,   binding   on   all

courts within the territory of India, and so, it must

be   the   constant   endeavour   and   concern   of   this

Court   to   introduce   and   maintain   an   element   of

certainty and continuity in the interpretation of law

in   the   country.   Frequent   exercise   by   this   Court   of

its   power   to   review   its   earlier   decisions   on   the

ground that the view pressed before it later appears

to   the   Court   to   be   more   reasonable,   may

incidentally   tend   to   make   law   uncertain   and

introduce   confusion   which   must   be   consistently

avoided. That is not to say that if on a subsequent

occasion,   the   Court   is   satisfied   that   its   earlier

decision was clearly erroneous, it should hesitate to

correct   the   error;   but   before   a   previous   decision   is

pronounced   to   be   plainly   erroneous,   the   Court

must   be   satisfied   with   a   fair   amount   of   unanimity

amongst   its   members   that   a   revision   of   the   said

view is fully justified. It is not possible or desirable,

and in any case it would be inexpedient to lay down


                                106


any principles which should govern the approach of

the Court in dealing with the question of reviewing

and revising its earlier decisions."



33.  In  Maganlal   Chhaganlal  (1974)   2   SCC   402

case a Bench of seven learned Judges of this Court

considered,   inter   alia,   the   question:   whether   a

judgment of the Supreme Court in Northern India

Caterers case (1967) 3 SCR 399 was required to be

overruled.   Khanna,   J.   observed:   (SCC   p. 425,   para

22)

             "At   the   same   time,   it   has   to   be

       borne   in   mind   that          certainty   and

       continuity   are   essential   ingredients   of

       rule   of   law.   Certainty   in   law   would   be

       considerably eroded and suffer a serious

       setback   if   the   highest   court   of   the   land

       readily overrules the view expressed by it

       in   earlier   cases,   even   though   that   view

       has held the field for a number of years.

       In   quite   a   number   of   cases   which   come

       up   before   this   Court,   two   views   are

       possible,   and   simply   because   the   Court

       considers that the view not taken by the

       Court   in   the   earlier   case   was   a   better

       view   of   the   matter   would   not   justify   the

       overruling of the view. The law laid down

       by   this   Court   is   binding   upon   all   courts

       in   the   country   under   Article   141   of   the

       Constitution,   and   numerous   cases   all

       over   the   country   are   decided   in

       accordance   with   the   view   taken   by   this

       Court.  Many  people   arrange   their   affairs

       and   large   number   of   transactions   also

       take place on the faith of the correctness

       of the view taken by this Court. It would

       create   uncertainty,   instability   and

       confusion   if   the   law   propounded   by   this


                                107


      Court   on   the   basis   of   which   numerous

      cases   have   been   decided   and   many

      transactions   have   taken   place   is   held   to

      be not the correct law."

42.  The concern of this Court for rendering justice

in a cause is not less important than the principle

of   finality   of   its   judgment.   "We   are   faced   with

competing   principles   --   ensuring   certainty   and

finality of a judgment of the Court of last resort and

dispensing justice on reconsideration of a judgment

on the ground that it is vitiated being in violation of

the principles of natural justice or giving scope for

apprehension   of   bias   due   to   a   Judge   who

participated   in   the   decision-making   process   not

disclosing his links with a party to the case, or on

account of abuse of the process of the court. Such a

judgment,   far   from   ensuring   finality,   will   always

remain   under   the   cloud   of   uncertainty.   Almighty

alone   is   the   dispenser   of   absolute   justice   --   a

concept which is not disputed but by a few. We are

of the view that though Judges of the highest court

do their best, subject of course to the limitation  of

human   fallibility,   yet   situations   may   arise,   in   the

rarest   of   the   rare   cases,   which   would   require

reconsideration   of   a   final   judgment   to   set   right

miscarriage of justice complained of. In such case it

would   not   only   be   proper   but   also   obligatory   both

legally and morally to rectify the error. After giving

our   anxious   consideration   to   the   question,   we   are

persuaded   to   hold   that   the   duty   to   do   justice   in

these rarest of rare cases shall have to prevail over

the   policy   of   certainty   of   judgment   as   though   it   is

essentially   in   the   public   interest   that   a   final

judgment   of   the   final   court   in   the   country   should

not   be   open   to   challenge,   yet   there   may   be

circumstances,   as   mentioned   above,                  wherein

declining   to   reconsider   the   judgment   would   be


                                     108


     oppressive   to   judicial   conscience   and   would   cause

     perpetuation of irremediable injustice."




130. A four-judge bench of this court in  Sumer   v.   State of


U.P. (2005) 7 SCC 220 observed as under:



           "In     Rupa   Ashok   Hurra               (supra)      while

     providing for the remedy of curative petition, but at

     the same time to prevent abuse of such remedy and

     filing   in   that   garb   a   second   review   petition   as   a

     matter of course, the Constitution Bench said that

     except   when   very   strong   reasons   exist,   the   court

     should   not   entertain   an   application   seeking

     reconsideration of an order of this Court which has

     become final on dismissal of review petition. In this

     view,   strict   conditions   including   filing   of   certificate

     by a Senior Advocate were provided in Rupa Ashok

     Hurra  (supra).   Despite   it,  the   apprehension   of  the

     Constitution   Bench   that   the   remedy   provided   may

     not   open   the   flood   gates   for   filing   a   second   review

     petition   has   come   true   as   is   evident   from   filing   of

     large number of curative petitions. It was expected

     that   the   curative   petitions   will   be   filed   in

     exceptional   and   in   rarest   of   rare   case   but,   in

     practice,   it   has   just   been   opposite.   This   Court,

     observing that neither it is advisable nor possible to

     enumerate   all   the   grounds   on   which   curative

     petition may be entertained, said that nevertheless

     the petitioner is entitled to relief ex debito justitiae

     if he establishes (1) violation of principles of natural

     justice in that he was not a party to the lis but the

     judgment   adversely   affected   his   interests   or,   if   he

     was a party to the lis, he was not served with notice

     of   the   proceedings   and   the   matter   proceeded   as   if

     he   had   notice,   and   (2)   where   in   the   proceedings   a

     learned Judge failed to disclose his connection with


                                      109


     the subject-matter or the parties giving scope for an

     apprehension   of   bias   and   the   judgment   adversely

     affects   the   petitioner.   To   restrict   filing   of   the

     curative   petitions   only   in   genuine   cases,  Rupa

     Ashok   Hurra  (supra)   provided   that   the   curative

     petition   shall   contain   a   certification   by   a   Senior

     Advocate   with   regard   to   the   fulfilment   of   all   the

     requirements            provided         in         the         judgment.

     Unfortunately, in most of the cases, the certification

     is   casual   without   fulfilling   the   requirements   of   the

     judgment."  


131. In     Sita   Ram   Bhandar   Society,   New   Delhi                           v.


Lieutenant Governor, Government of NCT, Delhi & Others


(2009)10 SCC 501, this Court held thus:



     "41.  We  must also observe that  the  petitioner  has

     been   able   to   frustrate   the   acquisition   and

     development   of   the   land   right   from   1980   onwards

     by taking recourse to one litigation after the other.

     The record reveals that all the suits/writ petitions,

     etc.   that   had   been   filed   had   failed.   Undoubtedly,

     every   citizen   has   a   right   to   utilise   all   legal   means

     which   are   open   to   him   in   a   bid   to   vindicate   and

     protect   his   rights,   but   if   the   court   comes   to   the

     conclusion   that   the   pleas   raised   are   frivolous   and

     meant   to   frustrate   and   delay   an   acquisition   which

     is   in   public   interest,   deterrent   action   is   called   for.

     This is precisely the situation in the present matter.



     42.  The   appeals   are,   accordingly,   dismissed   with

     costs   which   are   determined   at   rupees   two   lakhs.

     The respondents, shall, without further loss of time

     proceed against the appellant."


                                       110


132. This   court   in   a   recent   judgment   in  M.   Nagabhushana


v.     State   of   Karnataka   and   others  (2011)   3   SCC   408


observed that principle of finality is passed on high principle



of   public   policy.     The   court   in   para   13   of   the   said   judgment



observed as under:



             "That principle of finality of litigation is based

      on high principle of public policy.  In the absence of

      such   a   principle   great   oppression   might   result

      under   the   color   and   pretence   of   law   inasmuch   as

      there   will   be   no   end   of   litigation   and   a   rich   and

      malicious   litigant   will   succeed   in   infinitely   vexing

      his  opponent by  repetitive  suits  and actions.     This

      may   compel   the   weaker   party   to   relinquish   his

      right.  The doctrine of res judicata has been evolved

      to   prevent   such   an   anarchy.     That   is   why   it   is

      perceived   that   the   plea   of   res   judicata   is   not   a

      technical   doctrine   but   a   fundamental   principle

      which   sustains   the   rule   of   law   in   ensuring   finality

      in   litigation.     This   principle   seeks   to   promote

      honesty and a fair administration of justice and to

      prevent   abuse   in   the   matter   of   accessing   court   for

      agitating   on   issues   which   have   become   final

      between the parties."




133. In order to discourage a litigation which reopens the final



judgment of this court, while dismissing the petition imposed



costs of rupees 10 lakhs.


                                    111


134. We find full corroboration of this principle from the cases



of  other countries.   We deem it appropriate to mention some



of these relevant cases in the succeeding paragraphs.





ENGLAND


135. The England cases have consistently taken the view that



the   judgments   of   final   court   must   be   considered   final   and



conclusive.     There   must   be   certainty   in   the   administration.



Uncertainty   can   lead   to   injustice.     Unless   there   are   very



exceptional or compelling reasons the judgment of apex courts



should not be reopened.




136. In  Regina  v.  Gough,  [1993] 1 A.C. 646, with regards to



setting   aside   judgments   due   to   judicial   bias,   the   House   of



Lords held that there "is only one established special category



and   that   exists   where   the   tribunal   has   a   pecuniary   or



proprietary   interest   in   the   subject   matter   of   the   proceedings



as   in   Dimes  v.  Proprietors   of   Grand   Junction   Canal ,



(1852)   3   H.L.   Cases   759.   The   courts   should   hesitate   long



before   creating   any   other   special   category   since   this   will


                                    112


immediately create uncertainty as to what are the parameters



of that category and what is the test to be applied in the case



of that category." Lord Goff of Chievely stated that



     "I wish to draw attention  to the fact that there are

     certain  cases in which it  has been  considered that

     the   circumstances   are   such   that   they   must

     inevitably   shake   public   confidence   in   the   integrity

     of the administration of justice if the decision is to

     be   allowed   to   stand.   Such   cases   attract   the   full

     force of Lord Hewart C.J.'s requirement that justice

     must not only be done but must manifestly be seen

     to be done. These cases arise where a person sitting

     in   a   judicial   capacity   has   a   pecuniary   interest   in

     the outcome of the proceedings. In such a case, as

     Blackburn   J.   said   in  Reg.   v.   Rand   (1866)   L.R.   1

     Q.B.   230,   232:   "any   direct   pecuniary   interest,

     however   small,   in   the   subject   of   inquiry,   does

     disqualify   a   person   from   acting   as   a   judge   in   the

     matter."   The   principle   is   expressed   in   the   maxim

     that nobody may be judge in his own cause (nemo

     judex in sua causa)... In such a case, therefore, not

     only is it irrelevant that there was in fact no bias on

     the part of the tribunal, but there is no question of

     investigating,   from   an   objective   point   of   view,

     whether   there   was   any   real   likelihood   of   bias,   or

     any reasonable suspicion of bias, on the facts of the

     particular   case.   The   nature   of   the   interest   is   such

     that   public   confidence   in   the   administration   of

     justice requires that the decision should not stand"

     (p. 661).




137. In     R     v.     Bow   Street   Metropolitan   Stipendiary



Magistrate, ex parte Pinochet Ugarte (No 2) (1999) 2 W.L.R.


                                      113


272, the House of Lords  set aside one of its earlier orders. In



this case, the majority at the House of Lords had earlier ruled



whether Augusto Pinochet, the former dictator of Chile, could



be extradited to Spain in order to stand trial for alleged crimes



against humanity and was not entitled to sovereign immunity.



Amnesty International had been an intervener in this case in



opposition   to   Pinochet.   Lord   Hoffman,   one   of   the   majority



judges,   was   a   director   of   Amnesty   International   Charitable



Trust,   an   organization   controlled   by   Amnesty   International,



and   Lady   Hoffman   had   been   working   at   AI's   international



secretariat since 1977. The respondent was not aware of Lord



Hoffman's   relationship   to   AI   during   the   initial   trial.   In   this



case, the House of Lords cited with approval the respondents'



concession  acknowledging  the  House  of Lords' jurisdiction  to



review its decisions -



      "In principle it must be that your Lordships, as the

      ultimate court of appeal, have power to correct any

      injustice   caused   by   an   earlier   order   of   this   House.

      There   is   no   relevant   statutory   limitation   on   the

      jurisdiction   of   the   House   in   this   regard   and

      therefore   its   inherent   jurisdiction   remains

      unfettered."


                                      114


138. According  to  the  English  law,  the  judgment  of  the  Apex



Court   can   be   reviewed   in   exceptional   circumstances



particularly   when   the   judge   associated   with   any   of   the



organizations to be a good ground for reviewing the judgment.





139. In  Pinochet  test   in  Regina   (Edwards)  v  Environment


Agency   and   others  [2010]   UKSC   57,   the   Supreme   Court   of


the United Kingdom overruled an earlier order of costs made



by   the   erstwhile   apex   court,   the   House   of   Lords,   on   the



grounds   that   the   House   of   Lords   had   made   a   substantive



error   in   the   original   adjudication.   However,   this   appeal   was



lodged   under   Rule   53   of   the  The   (U.K.)   Supreme   Court


Rules,   2009,   2009   No.   1603   (L.   17).   Rule   53   provides   as


follows:



      53.   (1)   A   party   who   is   dissatisfied   with   the

      assessment   of   costs   made   at   an   oral   hearing   may

      apply   for   that   decision   to   be   reviewed   by   a   single

      Justice   and   any   application   under   this   rule   must

      be made in the appropriate form and be filed within

      14 days of the decision.



      (2) The single Justice may (without an oral hearing)

      affirm   the   decision   made   on   the   assessment   or

      may, where it appears appropriate, refer the matter


                                          115


      to a panel of Justices to be decided with or without

      an oral hearing.



      (3)   An   application   may   be   made   under   this   rule

      only on a question of principle and not in respect of

      the   amount   allowed   on   any   item   in   the   claim   for

      costs.



140. In   this   case,   Lord   Hope,   citing   the  Pinochet  case   stated



that:



          The Supreme Court is a creature of statute. But it

          has   inherited   all   the   powers   that   were   vested   in

          the   House   of   Lords   as   the   ultimate   court   of

          appeal.  So it  has   the   same   powers  as  the  House

          had to correct any injustice caused by an earlier

          order of the House or this Court... In this case it

          seems that, through no fault of the appellant, an

          injustice  may  have been caused by the  failure  of

          the   House   to   address   itself   to   the   correct   test   in

          order to comply with the requirements of [certain

          EU] directives [at para. 35].




CANADA


141. The   Canadian   Supreme   Court   is   of   the   same   view   that



judicial   bias   would   be   a   ground   for   reviewing   the   judgment.



In Wewaykum  Indian Band  v.  Canada [2003] 2 SCR 259



the   court   relied   on  Taylor   Ventures   Ltd.  (Trustee   of)  v.


Taylor  2005   BCCA   350   where   principle   of   judicial   bias   has


been summarized.


                                         116




142. The   principles   stated   in  Roberts  regarding   judicial   bias



were   neatly   summarized   in  Taylor   Ventures   Ltd.   (Trustee


of) (supra), where Donald J.A. stated -


      (i)      a judge's impartiality is presumed;



      (ii)     a   party   arguing   for   disqualification   must

               establish   that   the   circumstances   justify   a

               finding that the judge must be disqualified;



      (iii)    the   criterion   of   disqualification   is   the

               reasonable apprehension of bias;



      (iv)   the   question   is   what   would   an   informed,

               reasonable   and   right-minded   person,   viewing

               the   matter   realistically   and   practically,   and

               having thought the matter through, conclude;



      (iv)     the   test   for   disqualification   is   not   satisfied

               unless   it   is   proved   that   the   informed,

               reasonable   and   right-minded   person   would

               think   that   it   is  more   likely   than   not   that   the

               judge,   whether   consciously   or   unconsciously,

               would not decide fairly;



      (v)      the   test   requires   demonstration   of   serious

               grounds on which to base the apprehension;



      (vi)     each   case   must   be   examined   contextually

               and the inquiry is fact-specific (at para 7).


                                        117


143. Cases from Australia also support the proposition that a



final  judgment  cannot  ordinarily   be reopened,  and  that  such



steps can be taken only in exceptional circumstances.



144. In  State   Rail   Authority   of   New   South   Wales  v.


Codelfa   Constructions   Propriety   Limited  (1982)   150   CLR


29, the High Court of Australia observed:



      "... it is a power to be exercised with great caution.

      There   may   be   little   difficulty   in   a   case   where   the

      orders   have   not   been   perfected   and   some   mistake

      or misprision is disclosed.  But in other cases it will

      be   a   case   of   weighing   what   would   otherwise   be

      irremediable injustice against the public interest in

      maintaining   the   finality   of   litigation.                   The

      circumstances that will justify a rehearing must be

      quite exceptional. ..."




145. In Bailey v. Marinoff (1971) 125 CLR 529, Judge Gibbs



of   the   High   Court   of   Australia   observed   in   a   dissenting



opinion:



             "It is a well-settled rule that once an order of a

      court   has   been   passed   and   entered   or   otherwise

      perfected   in   a   form   which   correctly   expresses   the

      intention with which it was made the court has no

      jurisdiction   to   alter   it.     ..   ....The   rule   tests   on   the

      obvious   principle   that   it   is   desirable   that   there   be

      an end to litigation and on the view that it would be

      mischievous   if   there   were   jurisdiction   to   rehear   a

      matter   decided   after   a   full   hearing.    However,   the


                                      118


     rule   is   not   inflexible   and   there   are   a   number   of

     exceptions to it in addition to those that depend on

     statutory provisions such as the slip rule found  in

     most rules of court.   Indeed, as the way in which I

     have already stated the rule implies, the court has

     the   power   to   vary   an   order   so   as   to   carry   out   its

     own   meaning   or   to   make   plain   language   which   is

     doubtful,  and that power does not depend on rules

     of court, but is inherent in the court...."



     And, further:



            "The authorities to which I have referred leave

     no   doubt   that   a   superior   court   has   an   inherent

     power to vary its own orders in certain cases.   The

     limits of the power remain undefined, although the

     remarks   of   Lord   Evershed   already   cited   suggest

     that it is a power that a court may exercise "if, in its

     view, the purposes of justice require that it should

     do so".




146. In  DJL  v.  Central   Authority  (2000)   170   ALR   659,   the



High Court of Australia observed:



            "...It   is   now   recognized   both   in   Australia   and

     England   that  orders   made   by   ultimate   appellate

     courts   may   be   reopened   by   such   courts   in

     exceptional   circumstances  to   repair   accidents   and

     oversights   which   would   otherwise   occasion   a

     serious   injustice.   In   my   view,   this   can   be   done

     although the order in question has been perfected.

     The reopening may be ordered  after due account is

     taken   of   the   reasons   that   support   the   principle   of

     finality   of   litigation.     The   party   seeking   reopening

     bears   a   heavy   burden   to   demonstrate   that   the


                                    119


      exceptional course is required "without fault on his

      part. ..."




147. Lastly,   in  Lexcray   Pty.   Ltd.  v.  Northern   Territory   of


Australia  2003 NTCA 11, the Court appeals of the Supreme


Court of the Northern Territory expressly stated:



            "...As a final court of appeal the High Court of

      Australia   has   inherent   jurisdiction   to   vacate   its

      orders in cases where there would otherwise  be an

      irremediable injustice...."




148. American   courts   also   follows   a   similar   pattern.     In


United States of America  v.  Ohio Power Company  353 US


98   (1957),   the   U.S.   Supreme   Court   vacated   its   earlier   order



denying   a   timely   petition   for   rehearing,   on   the   ground   that



"the interest in finality of  litigation must yield where interests



of   justice   would   make   unfair,   strict   application   of   Supreme



Court's Rules.



149. In  Raymond   G.   Cahill  v.  The   New   York,   New   Haven


and Hartford Railroad Company 351 US 183, the Supreme


Court observed:



      "...There   are   strong   arguments   for   allowing   a

      second   petition   for   rehearing   where   a   rigid


                                       120


        application   of   this   rule   would   cause   manifest

        injustice."



FIJI


150. The   Supreme   Court   of   Fiji   Islands   incorporating



Australian   and   British   case   law   summarized   the   law



applicable to review of its judgments. It has been held that the



Supreme   Court   can   review   its   judgments   pronounced   or



orders   made   by   it.     The   power   of   the   appellate   courts   to   re-



open   and   review   their   orders   is   to   be   exercised   with   great



caution.




151. The cases establish that the power of appellate courts to



re-open   and   review   their   orders   is   to   be   exercised   with   great



caution.   The   power,   and   the   occasions   for   its   exercise   were



considered   in  In Re   Transferred   Civil   Servants   (Ireland)


Compensation (1929)   AC   242,   248-52;   and State   Rail


Authority NSW v Codelfa Construction Pty Ltd (1982) HCA


51   :   (1982)   150   CLR   29,   38-9,   45-6,   where   earlier   Privy



Council cases are referred to. The principles were summarised


                                      121


in Smith  v  NSW   Bar   Association (1992)   176   CLR   252,   265



where the High Court of Australia said:


      "The power is discretionary  and, although it exists

      up   until   the   entry   of   judgment,   it   is   one   that   is

      exercised   having   regard   to   the   public   interest   in

      maintaining   the   finality   of   litigation.   Thus,   if

      reasons for judgment have been given, the power is

      only   exercised   if   there   is   some   matter   calling   for

      review ... these considerations may tend against the

      re-opening   of   a   case,   but   they   are   not   matters

      which bear on the nature or the review ... once the

      case is re-opened ... the power to review a judgment

      ...   where   the   order   has   not   been   entered   will   not

      ordinarily   be   exercised   to   permit   a   general   re-

      opening   ...   But   ...   once   a   matter   has   been   re-

      opened,   the   nature   and   extent   of   the   review   must

      depend   on   the   error   or   omission   which   has   led   to

      that step being taken."




152. The principles were further considered in Autodesk Inc



v  Dyason  (No   2) (1993)   HCA   6   :   (1993)   176   CLR   300,   303



where Mason CJ said:



      "What must emerge, in order to enliven the exercise

      of the jurisdiction, is that the Court has apparently

      proceeded   according   to   some   misapprehension   of

      the facts or the relevant law and this ... cannot be

      attributed solely to the neglect of the party seeking

      the rehearing. The purpose of the jurisdiction is not

      to   provide   a   backdoor   method   by   which

      unsuccessful   litigants   can   seek   to   reargue   their

      cases."


                                      122


153. The   ratio   of   these   judgments   is   that   a   court   of   final



appeal has power in truly exceptional circumstances to recall



its  order   even  after   they   have   been  entered  in  order   to   avoid



irremediable injustice.



154. Reviewing of various cases of different jurisdictions lead



to   irresistible   conclusion   that   though   the   judgments   of   the



apex   court   can   also   be   reviewed   or   recalled   but   it   must   be



done   in   extremely   exceptional   circumstances   where   there   is



gross violation of principles of natural justice.




155. In a case where the aggrieved party filing a review or



curative   petition   was   not   a   party   to   the   lis   but   the



judgment   adversely  affected   his  interest  or  he   was  party   to


the lis was not served with notice of the proceedings and the



matter proceeded as if he had notice.   This court in  State of


M.P. v. Sugar Singh & Others on 9th March, 2010 passed the


following order in a curative petition :



      "Though   there   were   eight   accused   persons,   only

      four accused were arrayed as party respondents in

      the   said   appeals   namely,   Sughar,   Laxman,   Onkar

      and   Ramesh.   Other   accused,   namely,Bhoja,

      Raghubir, Puran and Balbir were not impleaded as


                                123


respondents   in   these   Criminal   Appeals   and

consequently notices were not issued to them. This

Court, by judgment on 7th  November, 2008  in the

aforesaid   Criminal   Appeals,   reversed   the   acquittal

of  the   accused  by   the   High   Court   and   found   them

guilty of the offences punishable under Section 304

Part-II   read   with   Section   149   of   the   I.P.C.   and

sentenced   them   to   undergo   imprisonment   for   a

period   of   six   years.   The   conviction   of   the   accused

for   the   offences   punishable   under   Section   148   as

also   Section   326   read   with   the   Section   149   of   the

I.P.C.   and   the   sentence   imposed   by   the   Sessions

Court in regard to the said offences was upheld by

this Court.



      We   have   heard   learned   counsel   for   the

petitioners.   The   respondent   State,   though   served

with   a   notice   through   standing   counsel,   has   not

chosen   to   enter   appearance.   These   Curative

Petitions   have   been   filed   by   accused   No.2

(Raghubir)   and   by   accused   no.4   and   5   (Sughar

Singh and Laxman) on the ground that acquittal of

Bhoja,   Raghubir,   Puran   and   Balbir   have   been

reversed   without   affording   an   opportunity   of   being

heard.   We   see   that   there   is   serious   violation   of

principles   of   natural   justice   as   the   acquittal   of   all

the   accused   has   been   set   aside   even   though   only

four   of   them   were   made   respondents   before   this

Court   and   the   others   were   not   heard.   We   are,

therefore,   constrained   to   recall   the  3  judgment

passed by this Court in Criminal Appeal Nos.1362-

1363 of 2004 on 7th November, 2008.



      Consequently,   the   accused   Sughar   Singh,

Laxman, Onkar and Ramesh, if they are in custody,

are directed to be released forthwith.



      In   the   result,   these   Curative   Petitions   are

disposed   of   and   the   Criminal   Appeal   Nos.1362-


                                     124


      1363 of 2004 are restored to the file for being heard

      afresh with a direction that the other four accused

      (Bhoja,   Raghubir,   Puran   and   Balbir)   be   impleaded

      as   respondents   and   all   accused   be   served   with

      fresh notices."




156. In   the   instant   case,   the   applicants   had   adequate



opportunity and were heard by the court at length on number



of occasions and only thereafter the writ petition was disposed



of.     The   applicants   aggrieved   by   the   said   judgment   filed   a



review   petition.     This  review   petition   was   also   dismissed.     In



the   instant   case   even   the   curative   petition   has   also   been



dismissed.     The   applicants   now   want   to   reopen   this   case   by



filing these interlocutory applications.





157. The applicants certainly cannot be provided an entry by



back door method and permit the unsuccessful litigant to re-



agitate   and   reargue   their   cases.     The   applicants   have   filed



these applications merely to avoid compliance of the order of



the   court.   The   applicants   have   been   successful   in   their



endeavour and have not permitted the judgment delivered on



3.2.1996  to  acquire  finality   till  date.    It  is  strange  that  other


                                                      125


respondents   did   not   implement   the   final   order   of   this   court



without there being any order or direction of this court.  These



applications being devoid of any merit deserve to be dismissed



with heavy costs.



The other important principles which need elucidation are

regarding   unjust   enrichment,   restitution   and   compound

inte
        rests.      
                               
                                           
                                                     
                                                                 
                                                                           
                                                                                       
                                                                                                 
                                                                                                             
                                                                                                                       
                                                                                                                   


158.     Dr.   Arun   Mohan,   Senior   Advocate   of   this   court   in   a



recently   published   book   with   the   title   "Justice,   Courts   and



Delays"   analytically,   lucidly   while   taking   in   view   pragmatic



realities elucidated concepts of unjust enrichment, restitution



and compound interest.





159.   By   the   judgment   dated   13.02.1996   this   court   fixed   the



liability   but   did   not   fix   any   specific   amount,   which   was



ordered to be ascertained.  It was on the lines of a preliminary



decree in a suit which determines the liability, but leaves the



precise   amount  to  be  ascertained   in  further  proceedings  and



upon   the   process   of   ascertainment   being   completed,   a   final



decree for payment of the precise amount is passed.


                                       126


160. By   judgment   dated   4.11.1997   this   Court,   accepting   the



ascertainment, fixed the amount.  The order reads as under:



             "... ... ...remedial measures taken on the basis

      of the NEERI report shall be treated as final.



      We   accept   the   proposal   submitted   by   the

      Government   of   India   for   the   purpose   of   taking

      remedial   measures   by   appointing   National

      Productivity   Council   as   the   Project   Management

      Consultant.     In   our   opinion   the   Ministry   of

      Environment and Forests, Government of India has

      rightly made a demand for Rs.37.385 crores."





161. The   exact   liability   was   quantified   which   the   applicant-



M/s Hindustan Agro Chemical Ltd. was under an obligation to



pay.     The   liability   to   pay   arose   on   that   particular   date   i.e.



4.11.1997.     In   other   words,   this   was   in   the   lines   of   a   final



decree pursuant to a preliminary decree.



162. On   that   judgment   being   passed,   the   position   of   the



applicant   in   Application   No.44   was   that   of   `judgment-debtor'



and the applicant became liable to pay forthwith.



163. Admittedly, the amount has not been paid.  Instead, that



payment   they   sought   to   postpone   by   raising   various



challenges   in   this   court   and   in   the   meantime   `utilised'   that


                                    127


money, i.e., benefitted. As a consequence, the non-applicants



(respondents-states herein) were `deprived'  of the use of that



money for taking remedial measures.   The challenge has now



- nearly 14 years later - been finally decided against them.



164. The appellant they must pay the amount is one thing but



should they pay only that amount or something more?   If the



period were a few days or months it would have been different



but here it is almost 14 years have been lapsed and amount



has not been paid.  The questions therefore are really three:



       1.Can   a   party   who   does   not   comply   with   the   court



       order   be   permitted   to   retain   the   benefits   of   his   own



       wrong of non-compliance?



       2.Whether   the  successful  party   be  not  compensated



       by way of restitution for deprivation of its legitimate



       dues for more than fourteen years?  and



       3.Whether the court should not remove all incentives



       for not complying with the judgment of the court?



     Answering   these   questions   will   necessitate   analysis   of



     certain


                                      128


concepts.



165. It   is   settled   principle   of   law   that   no   one   can   take



advantage of his own wrong.



166. Unless courts disgorge all benefits that a party availed by



obstruction or delays or non-compliance, there will always be



incentive   for   non   compliance,   and   parties   are   ingenious



enough to come up with all kinds of pleas and other tactics to



achieve   their   end   because   they   know   that   in   the   end   the



benefit will remain with them.



167. Whatever   benefits   a   person   has   had   or   could   have   had



by not complying with the judgment must being disgorged and



paid to the judgment creditor and not, allowed to be retained



by   the   judgment-debtor.     This   is   the   bounden   duty   and



obligation of the court.



168. In   fact,   it   has   to   be   looked   from   the   position   of   the



creditor.     Unless   the   deprivation   by   reason   of   delay   is   fully



restituted, the creditor as a beneficiary remains a loser to the



extent of the un-restituted amount.


                                       129


 UNJUST ENRICHMENT


169.   Unjust   enrichment   has   been   defined   as:   "A   benefit



obtained from another, not intended  as a  gift and not legally



justifiable, for which the beneficiary must make restitution or



recompense."     See  Black's   Law   Dictionary,   Eighth   Edition



(Bryan A. Garner) at page 1573.



170. A   claim   for   unjust   enrichment   arises   where   there   has



been an "unjust retention of a benefit to the loss of another, or



the   retention   of   money   or   property   of   another   against   the



fundamental   principles   of   justice   or   equity   and   good



conscience."



171. `Unjust enrichment' has been defined by the court as the



unjust   retention   of   a   benefit   to   the   loss   of   another,   or   the



retention   of   money   or   property   of   another   against   the



fundamental   principles   of   justice   or   equity   and   good



conscience. A person is enriched if he has received a benefit,



and he is unjustly enriched if retention of the benefit would be



unjust.   Unjust   enrichment   of   a   person   occurs   when   he   has


                                       130


and   retains   money   or   benefits   which   in   justice   and   equity



belong to another.



172. Unjust enrichment is "the unjust retention of a benefit to



the   loss   of   another,   or   the   retention   of   money   or   property   of



another against the fundamental principles of justice or equity



and good conscience." A defendant may be liable "even when



the   defendant   retaining   the   benefit   is   not   a   wrongdoer"   and



"even   though   he   may   have   received   [it]   honestly   in   the   first



instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware.



1999).  USA)



173. Unjust   enrichment   occurs   when   the   defendant



wrongfully   secures   a   benefit   or   passively   receives   a   benefit



which would be unconscionable to retain.



174. In the leading case of  Fibrosa v.  Fairbairn, [1942] 2 All



ER 122, Lord Wright stated the principle thus :



                                                                     "...

         .(A)ny   civilized   system   of   law   is   bound   to

         provide   remedies   for   cases   of   what   has   been

         called   unjust   enrichment   or   unjust   benefit,

         that   is,   to   prevent   a   man   from   retaining   the

         money of, or some benefit derived from another

         which   it   is   against   conscience   that   he   should

         keep.   Such   remedies   in   English   law   are


                                      131


         generically   different   from   remedies   in   contract

         or in tort, and are now recognized to fall within

         a third category of the common law which has

         been called quasi-contract or restitution."



175. Lord Denning also stated in  Nelson  v.  Larholt, [1947]



2 All ER 751 as under:-





                "It is no longer appropriate, however, to

         draw   a   distinction   between   law   and   equity.

         Principles have now to be stated in the light

         of their combined  effect. Nor is it necessary

         to   canvass   the   niceties   of   the   old   forms   of

         action.   Remedies   now   depend   on   the

         substance of the right, not on whether they

         can   be   fitted   into   a   particular   frame-work.

         The   right   here   is   not   peculiar   to   equity   or

         contract   or   tort,   but   falls   naturally   within

         the   important   category   of   cases   where   the

         court   orders   restitution   if   the   justice   of   the

         case so requires."



176.    The above principle has been accepted in India. This



Court   in   several   cases   has   applied   the   doctrine   of   unjust



enrichment.


RESTITUTION AND COMPOUND INTEREST


177. American   Jurisprudence   2d.     Volume   66   Am   Jur   2d



defined Restitution as follows:


                                         132


        "The word `restitution' was used in the earlier

        common   law   to   denote   the   return   or

        restoration   of   a   specific   thing   or   condition.

        In   modern   legal   usage,   its   meaning   has

        frequently been extended to include not only

        the restoration or giving back of something to

        its   rightful   owner,   but   also   compensation,

        reimbursement,                   indemnification,                           or

        reparation   for   benefits   derived   from,   or   for

        loss   or   injury   caused   to,   another.     As   a

        general principle, the obligation to do justice

        rests upon all persons, natural and artificial;

        if   one   obtains   the   money   or   property   of

        others           without         authority,         the                   law,

        independently   of   express   contract,   will

        compel restitution or compensation."



178. While Section (') 3 (Unjust Enrichment) reads as under:



        "The   phrase   "unjust   enrichment"   is   used   in

        law   to   characterize   the   result   or   effect   of   a

        failure to make restitution of, or for, property

        or         benefits         received         under                   such

        circumstances   as   to   give   rise   to   a   legal   or

        equitable obligation to account therefor.  It is

        a   general   principle,   underlying   various   legal

        doctrines   and   remedies,   that   one   person

        should   not   be   permitted   unjustly   to   enrich

        himself at the expense of another, but should

        be   required   to   make   restitution   of   or   for

        property   or   benefits   received,   retained,   or

        appropriated,   where   it   is   just   and   equitable

        that   such   restitution   be   made,   and   where

        such   action   involves   no   violation   or

        frustration   of   law   or   opposition   to   public

        policy, either directly or indirectly."


                                      133


179.          Unjust   enrichment   is   basic   to   the   subject   of



restitution,   and   is   indeed   approached   as   a   fundamental



principle   thereof.   They   are   usually   linked   together,   and



restitution   is   frequently   based   upon   the   theory   of   unjust



enrichment.   However, although unjust enrichment is often



referred   to   or   regarded   as   a   ground   for   restitution,   it   is



perhaps   more   accurate   to   regard   it   as   a   prerequisite,   for



usually   there   can   be   no   restitution   without   unjust



enrichment. It is defined as the unjust retention of a benefit



to the loss of another or the retention of money or property



of   another   against   the   fundamental   principles   of   justice   or



equity   and good  conscience.  A  person  is  enriched   if  he  has



received a benefit, and he is unjustly enriched if retention of



the benefit would be unjust.  Unjust enrichment of a person



occurs when he has and retains money or benefits which in



justice and equity belong to another.





180.   While   the   term   `restitution'   was   considered   by   the



Supreme   Court   in  South-Eastern   Coalfields  2003   (8)   SCC



648   and   other   cases   excerpted   later,   the   term   `unjust


                                     134


enrichment'   came   to   be   considered   in  Sahakari   Khand


Udyog   Mandal  Ltd  vs  Commissioner   of  Central  Excise  &


Customs ((2005) 3 SCC 738).




181. This Court said:



              "`Unjust   enrichment'   means   retention   of   a

              benefit   by   a   person   that   is   unjust   or

              inequitable.   `Unjust   enrichment'   occurs

              when   a   person   retains   money   or   benefits

              which   in   justice,   equity   and   good

              conscience, belong to someone else."



182.     The terms `unjust enrichment' and `restitution' are like



the two shades of green - one leaning towards yellow and the



other   towards   blue.     With   restitution,   so   long   as   the



deprivation   of   the   other   has   not   been   fully   compensated   for,



injustice   to   that   extent   remains.     Which   label   is   appropriate



under which circumstances would depend on the facts of the



particular case before the court.  The courts have wide powers



to grant restitution, and more so where it relates to misuse or



non-compliance with court orders.



183.     We   may   add   that   restitution   and   unjust   enrichment,



along with an overlap, have to be viewed with reference to the


                                      135


two stages, i.e., pre-suit and post-suit.   In the former case, it



becomes   a   substantive   law   (or   common   law)   right   that   the



court will consider; but in the latter case, when the parties are



before   the   court   and   any  act/omission,   or  simply   passage   of



time,   results   in   deprivation   of   one,   or   unjust   enrichment   of



the   other,   the   jurisdiction   of   the   court   to   levelise   and   do



justice is independent and must be readily wielded, otherwise



it   will   be   allowing   the   Court's   own   process,   along   with   time



delay, to do injustice.



184 .        For   this   second   stage   (post-suit),   the   need   for



restitution   in   relation   to   court   proceedings,   gives   full



jurisdiction   to   the   court,   to   pass   appropriate   orders   that



levelise.  Only the court has to levelise and not go further into



the   realm   of   penalty   which   will   be   a   separate   area   for



consideration altogether.





185.      This   view   of   law   as   propounded   by   the   author



Graham Virgo in his celebrated book on "The Principle of Law



of   Restitution"   has   been   accepted   by   a   later   decision   of   the



House   of   Lords   (now   the   UK   Supreme   Court)   reported   as


                                    136


Sempra   Metals   Ltd   (formerly   Metallgesellschaft   Limited)


v  Her   Majesty's   Commissioners   of   Inland   Revenue   and



Another   [2007] UKHL 34 = [2007] 3 WLR 354 = [2008] 1 AC


561 = [2007] All ER (D) 294.





186.     In   similar   strain,   across   the   Altantic   Ocean,   a   nine



judge Bench of the Supreme Court of Canada in                      Bank   of


America Canada  vs  Mutual  Trust  Co.  [2002]  2 SCR  601  =


2002 SCC 43 (both Canadian Reports) took the view :



          "There   seems   in   principle   no   reason   why

          compound   interest   should   not   be   awarded.

          Had   prompt   recompense   been   made   at   the

          date   of   the   wrong   the   plaintiff   should   have

          had   a   capital   sum   to   invest;   the   plaintiff

          would   have   received   interest   on   it   at   regular

          intervals and would have invested those sums

          also.     By   the   same   token   the   defendant   will

          have   had   the   benefit   of   compound   interest.

          Although not historically available, compound

          interest   is   well   suited   to   compensate   a

          plaintiff   for   the   interval   between   when

          damages   initially   arise   and   when   they   are

          finally paid."




187. This   view   seems   to   be   correct   and   in   consonance   with



the principles of equity and justice.


                                         137


188. Another   way   of   looking   at   it   is   suppose   the   judgment-



debtor had borrowed the money from the nationalised bank as



a clean loan and paid the money into this court. What would



be the bank's demand.



189. In   other   words,   if   payment   of   an   amount   equivalent   of



what  the  ledger  account  in  the  nationalised   bank  on  a  clean



load   would   have   shown  as   a   debit   balance   today   is   not   paid



and   something   less   than   that   is   paid,   that   differential   or



shortfall   is   what   there   has   been   :   (1)   failure   to   restitute;   (2)



unfair   gain   by   the   non-complier;   and   (3)   provided   the



incentive to obstruct or delay payment.



190. Unless this differential is paid, justice has not been done



to   the   creditor.   It   only   encourages   non-compliance   and



litigation. Even if no benefit had been retained or availed even



then, to do justice, the debtor must pay the money.   In other



words,   it   is   this   is   not   only   disgorging   all   the   benefits   but



making the creditor whole i.e. ordering restitution in full and



not   dependent   on   what   he   might   have   made   or   benefitted   is



what justice requires.


                                      138


LEGAL   POSITION   UNDER   THE   CODE   OF   CIVIL

PROCEDURE



191. One reason the law has not developed on this is because



of   the   wording   of   Section   34   of   the   Code   of   Civil   Procedure



which still proceeds on the basis of simple interest.  In fact, it



is   this   difference   which   prompts   much   of   our   commercial



litigation because the debtor feels - calculates and assesses -



that to cause litigation and then to contest with obstructions



and delays will be beneficial because the court is empowered



to allow only simple interest.  A case for law reform on this is



a separate issue.



192. In   the   point   under   consideration,   which   does   not   arise



from a suit for recovery under the Code of Civil Procedure, the



inherent powers in the court and the principles of justice and



equity   are   each   sufficient   to   enable   an   order   directing



payment of compound interest.  The power to order compound



interest   as   part   of   restitution   cannot   be   disputed,   otherwise



there can never be restitution.


                                       139


PRECEDENTS   ON   EXERCISE   OF   POWERS   BY   THE

COURT   TOMAKE   THE   BENEFICIARY   WHOLE   -

RESTITUTION


193. This court in  Grindlays Bank Limited  vs  Income Tax


Officer, Calcutta  (1980) 2 SCC 191 observed as under :-



          "...When passing such orders the High Court

          draws   on   its   inherent   power   to   make   all

          such   orders   as   are   necessary   for   doing

          complete   justice   between   the   parties.     The

          interests   of   justice   require   that   any

          undeserved or unfair advantage gained by a

          party   invoking   the   jurisdiction   of   the   court,

          by   the   mere   circumstance   that   it   has

          initiated  a proceeding  in the court, must be

          neutralised.           The   simple   fact   of   the

          institution   of   litigation   by   itself   should   not

          be   permitted   to   confer   an   advantage   on   the

          party responsible for it. ..."


194. In  Ram   Krishna   Verma   and   Others  vs  State   of   U.P.


and Others (1992) 2 SCC 620 this court observed as under :-



       "The   50   operators   including   the   appellants/

       private operators have been running their stage

       carriages by blatant abuse of the process of the

       court   by   delaying   the   hearing   as   directed   in

       Jeevan   Nath   Bahl's  case   and   the   High   Court

       earlier   thereto.     As   a   fact,   on   the   expiry   of   the

       initial  period  of  grant  after  Sept.  29,  1959  they

       lost   the   right   to   obtain   renewal   or   to   ply   their

       vehicles,   as   this   Court   declared   the   scheme   to

       be   operative.     However,   by   sheer   abuse   of   the

       process   of   law   they   are   continuing   to   ply   their

       vehicles pending hearing of the objections.  This

       Court   in  Grindlays   Bank   Ltd.  vs  Income-tax


                                     140


      Officer  -    [1990] 2 SCC 191  held that the High

      Court   while   exercising   its   power   under   Article

      226   the   interest   of   justice   requires   that   any

      undeserved   or   unfair   advantage   gained   by   a

      party invoking the jurisdiction of the court must

      be   neutralised.     It   was   further   held   that   the

      institution   of   the   litigation   by   it   should   not   be

      permitted  to   confer  an   unfair  advantage   on the

      party responsible for it.   In the light of that law

      and in view of the power under Article 142(1) of

      the Constitution this Court, while exercising its

      jurisdiction   would   do   complete   justice   and

      neutralise   the   unfair   advantage   gained   by   the

      50   operators   including   the   appellants   in

      dragging the litigation to run the stage carriages

      on the approved route or area or portion thereof

      and   forfeited   their   right   to   hearing   of   the

      objections   filed   by   them   to   the   draft   scheme

      dated Feb. 26, 1959.   ..."



195. This   court   in  Kavita   Trehan  vs  Balsara   Hygiene


Products (1994) 5 SCC 380 observed as under :-


      "The jurisdiction to make restitution is inherent

      in   every   court   and   will   be   exercised   whenever

      the   justice   of   the   case   demands.     It   will   be

      exercised under inherent powers where the case

      did   not   strictly   fall   within   the   ambit   of   Section

      144.   Section 144 opens with the words "Where

      and in so far as a decree or an order is varied or

      reversed   in   any   appeal,   revision   or   other

      proceeding or is set aside or modified in any suit

      instituted for the purpose, ...".  The instant case

      may not strictly fall within the terms of Section

      144; but the aggrieved party in such a case can

      appeal   to   the   larger   and   general   powers   of

      restitution inherent in every court."


                                      141





196. This   court   in  Marshall   Sons   &   Co.   (I)   Ltd.  v.  Sahi


Oretrans (P) Ltd. and Another  (1999) 2 SCC 325 observed


as under :-



            "From   the   narration   of   the   facts,   though   it

      appears to us, prima facie, that a decree in favour

      of   the   appellant   is   not   being   executed   for   some

      reason or the other, we do not think it proper at

      this  stage   to  direct  the  respondent  to   deliver  the

      possession to the appellant since the suit filed by

      the   respondent   is   still   pending.     It   is   true   that

      proceedings   are   dragged   for   a   long   time   on   one

      count or the other and on occasion become highly

      technical   accompanied   by   unending   prolixity,   at

      every stage providing a legal trap to the unwary.

      Because of the delay unscrupulous parties to the

      proceedings   take   undue   advantage   and   person

      who   is   in   wrongful   possession   draws   delight   in

      delay   in   disposal   of   the   cases   by   taking   undue

      advantage of procedural complications.   It is also

      known   fact   that   after   obtaining   a   decree   for

      possession   of   immovable   property,   its   execution

      takes   long   time.     In   such   a   situation   for

      protecting   the   interest  of  judgment   creditor,   it  is

      necessary   to   pass   appropriate   order   so   that

      reasonable mesne profit which may be equivalent

      to   the   market   rent   is   paid   by   a   person   who   is

      holding   over   the   property.     In  appropriate   cases,

      Court may appoint Receiver and direct the person

      who   is   holding   over   the   property   to   act   as   an

      agent   of   the   Receiver   with   a   direction   to   deposit

      the royalty amount fixed by the Receiver or pass

      such other order which may meet the interest of

      justice.     This   may   prevent   further   injury   to   the

      plaintiff in whose favour decree is passed and to


                                     142


      protect the property including further alienation."





197. In  Padmawati  vs  Harijan   Sewak   Sangh  -  CM   (Main)


No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the


court held as under:-



       "The case at hand shows that frivolous defences

       and   frivolous   litigation   is   a   calculated   venture

       involving   no   risks   situation.     You   have   only  to

       engage professionals to prolong the litigation so

       as   to   deprive   the   rights   of   a   person   and   enjoy

       the fruits of illegalities.   I consider that in such

       cases   where   Court   finds   that   using   the   Courts

       as   a   tool,   a   litigant   has   perpetuated   illegalities

       or   has   perpetuated   an   illegal   possession,   the

       Court   must   impose   costs   on   such   litigants

       which should be equal to the benefits derived by

       the   litigant   and   harm   and   deprivation   suffered

       by   the   rightful   person   so   as   to   check   the

       frivolous   litigation   and   prevent   the   people   from

       reaping a rich harvest of illegal acts through the

       Court. One of  the aims of  every  judicial system

       has   to   be   to   discourage   unjust   enrichment

       using   Courts   as   a   tool.     The   costs   imposed   by

       the Courts must in all cases should be the real

       costs   equal   to   deprivation   suffered   by   the

       rightful person."





198. We  approve   the   findings  of  the  High  Court   of  Delhi   in



the aforementioned case.



199.  The Court also stated:   "Before parting with this case,


                                        143


we   consider   it   necessary   to   observe   that   one   of   the   main



reasons   for   over-flowing   of   court   dockets   is   the   frivolous



litigation   in   which   the   Courts   are   engaged   by   the   litigants



and   which   is   dragged   as   long   as   possible.     Even   if   these



litigants ultimately loose the lis, they become the real victors



and   have   the   last   laugh.     This   class   of   people   who



perpetuate   illegal   acts   by   obtaining   stays   and   injunctions



from the Courts must be made to pay the sufferer not only



the entire illegal gains made by them as costs to the person



deprived   of   his   right   and   also   must   be   burdened   with



exemplary   costs.     Faith   of   people   in   judiciary   can   only   be



sustained if the persons on the right side of the law do not



feel   that   even   if   they   keep   fighting   for   justice   in   the   Court



and   ultimately   win,   they   would   turn   out   to   be   a   fool   since



winning a case after 20 or 30 years would make wrongdoer



as   real   gainer,   who   had   reaped   the   benefits   for   all   those



years.   Thus, it becomes the duty of the Courts to see that



such   wrongdoers   are   discouraged  at   every  step   and   even   if



they succeed in prolonging the litigation due to their money



power,   ultimately   they   must   suffer   the   costs   of   all   these


                                     144


years   long   litigation.   Despite   settled   legal   positions,   the



obvious   wrong   doers,   use  one   after   another    tier   of  judicial



review mechanism as a gamble, knowing fully well that dice



is always loaded in their favour, since even if they lose, the



time   gained   is   the   real   gain.     This   situation   must   be



redeemed by the Courts."





200.     Against  this  judgment,  Special   Leave  to  Appeal  (Civil)



No   29197/2008   was   preferred   to   the   this   Court.     The   Court



passed the following order:



        "We   have   heard   learned   counsel   appearing   for

        the parties.  We find no ground to interfere with

        the   well-considered   judgment   passed   by   the

        High   Court.     The   Special   Leave   Petition   is,

        accordingly, dismissed."





Interest on interest


201. This court in  Alok Shanker Pandey  vs  Union of India


& Others (2007) 3 SCC 545 observed as under:-


        "We are of the opinion that there is no hard and

        fast   rule   about   how   much   interest   should   be

        granted   and   it   all   depends   on   the   facts   and

        circumstances   of  the   each   case.     We   are   of   the


                                      145


        opinion   that   the   grant   of   interest   of   12%   per

        annum   is   appropriate   in   the   facts   of   this

        particular   case.     However,   we   are   also   of   the

        opinion   that   since   interest   was   not   granted   to

        the   appellant   along   with   the   principal   amount

        the   respondent   should   then   in   addition   to   the

        interest at the rate of 12% per annum also pay

        to   appellant   interest   at   the   same   rate   on   the

        aforesaid   interest   from   the   date   of   payment   of

        instalments   by   the   appellant   to   the   respondent

        till   the   date   of   refund   on  this   amount,   and   the

        entire amount mentioned above must be paid to

        the   appellant   within   two   months   from   the   date

        of this judgment.



                                                            It   may

        be mentioned that there is misconception about

        interest.         Interest   is   not   a   penalty   or

        punishment at all, but it is the normal accretion

        on capital."



Compound Interest


202. To do complete justice, prevent wrongs, remove incentive



for wrongdoing or delay, and to implement in practical terms



the   concepts   of   Time   Value   of   Money,   restitution   and   unjust



enrichment noted above - or to simply levelise - a convenient



approach is calculating interest.   But here interest has to be



calculated on compound basis - and not simple - for the latter



leaves   much   uncalled   for   benefits   in   the   hands   of   the



wrongdoer.


                                       146


203. Further, a  related concept of inflation  is also to be  kept



in   mind   and   the   concept   of   compound   interest   takes   into



account, by reason of prevailing rates, both these factors, i.e.,



use   of   the   money   and   the   inflationary   trends,   as  the   market



forces and predictions work out.



204.    Some of our statute law provide only for simple interest



and   not   compound   interest.     In   those   situations,   the   courts



are   helpless   and   it   is   a   matter   of   law   reform   which   the   Law



Commission must take note and more so, because the serious



effect it has on administration of justice.  However, the power



of the court to order compound interest by way of restitution



is not fettered in any way.  We request the Law Commission to



consider   and   recommend   necessary   amendments   in   relevant



laws.



205.       `Compound   interest'   is   defined   in   Black's   Law



Dictionary,   Eighth   Edition   (Bryan   A.   Garner)   at   page   830   as



`Interest   paid   on   both   the   principal   and   the   previously



accumulated interest.'       It is a method of arriving at a figure


                                   147


which nears the time value of money submitted under Head-2



earlier.



206.       As   noted,   compound   interest   is   a   norm   for   all



commercial transactions.



207.    Graham Virgo in his important book on `The Principles



of the Law of Restitution" at pp26-27 has stated and relevant



portion is reproduced as under:



      "In  Westdeutsche   Landesbank   Girozentrale  v

      London   Borough   Council  1996   A.C.   669   the

      issue   for   the   House   of   Lords   was   whether

      compound interest was available in respect of all

      restitutionary   claims.     By   a   majority   it   was

      decided   that,   since   the   jurisdiction   to   award

      compound   interest   was   equitable,   compound

      interest   could   only   be   awarded   in   respect   of

      equitable   restitutionary   claims.     Consequently,

      where the claim was for money had and received

      the   claimant   could   only   obtain   simple   interest

      because   this   was   a   common   law   claim.     The

      majority supported their conclusion by reference

      to   a   number   of   different   arguments.           In

      particular,   they   asserted   that,   since   Parliament

      had decided in 1981 that simple interest should

      be awarded on claims at common law, it was not

      for   the   House   of   Lords   to   award   compound

      interest   in   respect   of   such   claims.   But   the

      Supreme   Court   Act   1981   does   not   specifically

      exclude   the   award   of   compound   interest   in

      respect   of   common   law   claims.     Rather,   it

      recognizes   that   the   court   can   award   simple

      interest   for   such   claims.         The   equitable


                                 148


jurisdiction   to   award   compound   interest   is   still

available in appropriate cases.



In   two   very   strong   dissenting   judgments,   Lords

Goff   and   Woolf   rejected  the   argument   of   the

majority.   They asserted that, since the policy of

the law of restitution was to remove benefits from

the   defendant,   compound   interest   should   be

available   in   respect   of   all   restitutionary   claims,

regardless   of   whether   they   arise   at   law   or   in

equity.   This argument can be illustrated by the

following   example.     In   the   straightforward   case

where the claimant pays money to the defendant

by mistake and defendant is liable to repay that

money,   the   liability   arises   from   the   moment   the

money is received by the defendant, who has the

use of it and so should pay the claimant for the

value   of   that   benefit.     This   was   accepted   by   all

the   judges   in   the   case.     The   difficulty   relates   to

the   valuation   of   this   benefit.     If   the   defendant

was   to   borrow   an   equivalent   amount   of   money

from   a   financial   institution,   he   or   she   would   be

liable   to   pay   compound   interest   to   that

institution.   It   follows   that   the   defendant   has

saved   that   amount   of   money   and   so   this   is   the

value  of  the  benefit   which  the   defendant   should

restore   to   the   claimant,   in   addition   to   the   value

of the money which the defendant received in the

first   place.     If   it   could   be   shown   that,   had   the

defendant   borrowed   the   equivalent   amount   of

money,   the   institution   would   only   have   paid

simple   interest,   it   would   be   appropriate   for   the

interest   awarded   to   the   claimant   to   be   simple

rather   than   compound.     Usually,   however,   the

interest awarded in commercial transactions will

be compound interest."


                                       149


208.   In  Marshall sons and company (I) Limited   v.   Sahi


Oretrans   (P)   Limited   and   another  (1999)   2   SCC   325  this


court in para 4 of the judgment observed as under:



         "...It   is   true   that   proceedings   are   dragged   for   a

      long   time   on   one   count   or   the   other   and,   on

      occasion,   become   highly  technical   accompanied   by

      unending   prolixity   at   every   stage   providing   a   legal

      trap   to   the   unwary.   Because   of   the   delay,

      unscrupulous   parties   to   the   proceedings   take

      undue  advantage  and a person  who is  in wrongful

      possession draws delight in delay in disposal of the

      cases   by   taking   undue   advantage   of   procedural

      complications.   It   is   also   a   known   fact   that   after

      obtaining   a   decree   for   possession   of   immovable

      property, its execution takes a long time. In such a

      situation,   for   protecting   the   interest   of   the

      judgment-creditor,   it   is   necessary   to   pass

      appropriate orders so that reasonable mesne profit

      which may be equivalent to the market rent is paid

      by   a   person   who   is   holding   over   the   property.   In

      appropriate cases, the court may appoint a Receiver

      and   direct   the   person   who   is   holding   over   the

      property   to   act   as   an   agent   of   the   Receiver   with   a

      direction to deposit the royalty amount fixed by the

      Receiver or pass such other order which may meet

      the   interest   of   justice.   This   may   prevent   further

      injury to the plaintiff in whose favour the decree is

      passed   and   to   protect   the   property   including

      further alienation. ..."




209.       In  Ouseph   Mathai   and   others   v.   M.   Abdul   Khadir



(2002) 1 SCC 319  this court reiterated the legal position that


                                        150


the stay granted by the court does not confer a right upon a



party and it is granted always subject to the final result of the



matter   in   the   court   and   at   the   risk   and   costs   of   the   party



obtaining   the   stay.     After   the   dismissal,   of   the   lis,   the   party



concerned   is   relegated   to   the   position   which   existed   prior   to



the   filing   of   the   petition   in   the   court   which   had   granted   the



stay.     Grant   of   stay   does   not   automatically   amount   to



extension of a statutory protection.



210.    This   court   in  South   Eastern   Coalfields   Limited     v.


State   of   M.P.   and   others    (2003)   8   SCC   648  on   examining


the   principle   of   restitution   in   para   26   of   the   judgment



observed as under:



       "In   our   opinion,   the   principle   of   restitution   takes

       care   of   this   submission.   The   word   "restitution"   in

       its etymological sense means restoring to a party on

       the modification, variation or reversal of a decree or

       order,   what   has   been   lost   to   him   in   execution   of

       decree   or   order   of   the   court   or   in   direct

       consequence of a decree or order (see  Zafar Khan

       v. Board of Revenue, U.P  -  (1984)  Supp SCC 505)

       In   law,   the   term   "restitution"   is   used   in   three

       senses:   (i)   return   or   restoration   of   some   specific

       thing   to   its   rightful   owner   or   status;   (ii)

       compensation   for   benefits   derived   from   a   wrong

       done   to   another;   and   (iii)   compensation   or

       reparation for the loss caused to another."


                                      151





211.   The   court   in   para   28   of   the   aforesaid   judgment   very



carefully mentioned that the litigation should not turn into a



fruitful industry and observed as under:



      "... ... ...Litigation may turn into a fruitful industry.

      Though   litigation   is   not   gambling   yet   there   is   an

      element of chance in every litigation. Unscrupulous

      litigants   may   feel   encouraged   to   approach   the

      courts,   persuading   the   court   to   pass   interlocutory

      orders   favourable   to   them   by   making   out   a   prima

      facie case when the issues are yet to be heard and

      determined   on   merits   and   if   the   concept   of

      restitution   is   excluded   from   application   to   interim

      orders,   then   the   litigant   would   stand   to   gain   by

      swallowing   the   benefits   yielding   out   of   the   interim

      order   even   though   the   battle   has   been   lost   at   the

      end.   This   cannot   be   countenanced.   We   are,

      therefore,   of   the   opinion   that   the   successful   party

      finally held entitled to a relief assessable in terms of

      money at the end of the litigation, is entitled to be

      compensated   by   award   of   interest   at   a   suitable

      reasonable rate for the period for which the interim

      order of the court withholding the release of money

      had remained in operation."




212.   The court in the aforesaid judgment also observed that



once   the   doctrine   of   restitution   is   attracted,   the   interest   is



often a normal relief given in restitution.  Such interest is not



controlled   by   the   provisions   of   the   Interest   Act   of   1839   or



1978.


                                       152


213.       In   a   relatively   recent   judgment   of   this   court   in


Amarjeet   Singh   and   others     v.     Devi   Ratan   and   others


(2010)   1   SCC   417  the   court   in   para   17   of   the   judgment



observed as under:




      "No   litigant   can   derive   any   benefit   from   mere

      pendency   of   case   in   a   court   of   law,   as   the   interim

      order always merges in the final order to be passed

      in   the   case   and   if   the   writ   petition   is   ultimately

      dismissed,   the   interim   order   stands   nullified

      automatically.   A   party   cannot   be   allowed   to   take

      any benefit of its own wrongs by getting an interim

      order and thereafter blame the court. The fact that

      the   writ   is   found,   ultimately,   devoid   of   any   merit,

      shows that a frivolous writ petition  had been filed.

      The   maxim  actus   curiae   neminem   gravabit,   which

      means   that  the   act   of   the   court   shall   prejudice   no

      one, becomes applicable in such  a case.  In such  a

      fact   situation   the   court   is   under   an   obligation   to

      undo   the   wrong   done   to   a   party   by   the   act   of   the

      court.   Thus,   any   undeserved   or   unfair   advantage

      gained   by   a   party   invoking   the   jurisdiction   of   the

      court   must   be   neutralised,   as   the   institution   of

      litigation   cannot   be   permitted   to   confer   any

      advantage   on   a   suitor   from   delayed   action   by   the

      act of the court. ... ..."




214.        In   another   recent   judgment   of   this   court   in


Kalabharati            Advertising            v.         Hemant         Vimalnath


Narichania and others  (2010) 9 SCC 437  this court in para


15 observed as under:


                                      153


      "No   litigant   can   derive   any   benefit   from   the   mere

      pendency of a case in a court of law, as the interim

      order   always   merges   into   the   final   order   to   be

      passed   in   the   case   and   if   the   case   is   ultimately

      dismissed,   the   interim   order   stands   nullified

      automatically.   A   party   cannot   be   allowed   to   take

      any benefit of his own wrongs by getting an interim

      order and thereafter blame the court. The fact that

      the case is found, ultimately, devoid of any merit, or

      the   party   withdrew   the   writ   petition,   shows   that   a

      frivolous   writ   petition   had   been   filed.   The   maxim

      actus   curiae   neminem   gravabit,   which   means   that

      the act of the court shall prejudice no one, becomes

      applicable   in   such   a   case.   In   such   a   situation   the

      court   is   under   an   obligation   to   undo   the   wrong

      done   to  a  party   by  the  act  of  the  court.   Thus,  any

      undeserved   or   unfair   advantage   gained   by   a   party

      invoking   the   jurisdiction   of   the   court   must   be

      neutralised,   as   the   institution   of   litigation   cannot

      be permitted to confer any advantage on a party by

      the delayed action of the court."




215.   In   consonance   with   the   concept   of   restitution,   it   was



observed   that   courts   should   be   careful   and   pass   an   order



neutralizing   the   effect   of   all   consequential   orders   passed   in



pursuance   of   the   interim   orders   passed   by   the   court.     Such



express directions may be necessary to check the rising trend



among the litigants to secure the relief as an interim measure



and then avoid adjudication on merits.


                                     154


216.    In consonance  with  the  principle  of  equity,  justice  and



good   conscience   judges   should   ensure   that   the   legal   process



is   not   abused   by   the   litigants   in   any   manner.     The   court



should   never   permit   a   litigant   to   perpetuate   illegality   by



abusing the legal process.  It is the bounden duty of the court



to ensure that dishonesty and any attempt to abuse the legal



process must be effectively curbed and the court must ensure



that   there   is   no   wrongful,   unauthorized   or   unjust   gain   for



anyone by the abuse of the process of the court.   One way to



curb   this   tendency   is   to   impose   realistic   costs,   which   the



respondent   or  the   defendant   has   in  fact   incurred   in   order   to



defend himself in the legal proceedings.   The courts would be



fully justified even imposing punitive costs where legal process



has   been   abused.   No   one   should   be   permitted   to   use   the



judicial   process   for   earning   undeserved   gains   or   unjust



profits.     The   court   must   effectively   discourage   fraudulent,



unscrupulous and dishonest litigation.





217.  The  court's   constant  endeavour  must   be  to  ensure   that



everyone   gets   just   and   fair   treatment.     The   court   while


                                     155


rendering   justice   must   adopt   a   pragmatic   approach   and   in



appropriate cases realistic costs and compensation be ordered



in order to discourage dishonest litigation. The object and true



meaning   of   the   concept   of   restitution   cannot   be   achieved   or



accomplished   unless   the   courts   adopt   a   pragmatic   approach



in dealing with the cases.  



218.   This court in a very recent case  Ramrameshwari Devi


and   Others       v.     Nirmala   Devi   and   Others  2011(6)   Scale


677   had   an   occasion   to   deal   with   similar   questions   of   law



regarding imposition of realistic costs and restitution.       One



of  us  (Bhandari,   J.)  was  the   author of  the  judgment.    It   was



observed in that case as under:



      "While   imposing   costs   we   have   to   take   into

      consideration   pragmatic   realities   and   be   realistic

      what   the   defendants   or   the   respondents   had   to

      actually   incur   in   contesting   the   litigation   before

      different courts.   We have to also broadly take into

      consideration   the   prevalent   fee   structure   of   the

      lawyers   and   other   miscellaneous   expenses   which

      have   to   be   incurred   towards   drafting   and   filing   of

      the   counter   affidavit,   miscellaneous   charges

      towards typing, photocopying, court fee etc.



      The   other   factor   which   should   not   be   forgotten

      while imposing costs is for how long the defendants

      or   respondents   were   compelled   to   contest   and


                                       156


      defend   the   litigation   in   various   courts.     The

      appellants   in   the   instant   case   have   harassed   the

      respondents to the hilt for four decades in a totally

      frivolous and dishonest litigation in various courts.

      The appellants have also wasted judicial time of the

      various courts for the last 40 years."





219.  We reiterate that the finality of the judgment of the Apex



Court   has   great   sanctity   and   unless   there   are   extremely



compelling or exceptional circumstances, the judgments of the



Apex   Court   should   not   be   disturbed   particularly   in   a   case



where   review   and   curative   petitions   have   already   been



dismissed.




220.   This   Court   has   consistently   taken   the   view   that   the



judgments   delivered   by   this   Court   while   exercising   its



jurisdiction   under   Article   136   of   the   Constitution   cannot   be



reopened   in   a   writ   petition   filed   under   Article   32   of   the



Constitution.     In   view   of   this   legal   position,   how   can   a   final



judgment   of   this   Court   be   reopened   by   merely   filing



interlocutory   applications   where   all   possible   legal   remedies



have been fully exhausted?  When we revert to the facts of this



case,   it   becomes   abundantly   clear   that   this   Court   delivered


                                      157


final   judgment   in   this   case   way   back   in   1996.     The   said



judgment   has   not   been   permitted   to   acquire   finality   because



the   respondent   Nos.   4   to   8   had   filed   multiple   interlocutory



applications   and   has   ensured   non-compliance   of   the



judgment of this Court.  




221. On consideration of pleadings and relevant judgments of



the various courts, following irresistible conclusion emerge:



      i)      The   judgment   of   the   Apex   Court   has   great

              sanctity   and   unless   there   are   extremely

              compelling,         overriding         and         exceptional

              circumstances,   the   judgment   of   the   Apex

              Court   should   not be   disturbed  particularly   in

              a   case   where   review   and   curative   petitions

              have already been dismissed



      ii)     The exception to this general rule is where in

              the   proceedings   the   concerned   judge   failed   to

              disclose   the   connection   with   the   subject

              matter   or   the   parties   giving   scope   of   an

              apprehension   of   bias   and   the   judgment

              adversely affected the petitioner.



      iii)    The   other   exception   to   the   rule   is   the

              circumstances   incorporated   in   the   review   or

              curative   petition   are   such   that   they   must

              inevitably   shake   public   confidence   in   the

              integrity of the administration of justice if the

              judgment or order is allowed to stand.


                                    158


222.  These   categories  are  illustrative   and  not  exhaustive   but



only   in   such   extremely   exceptional   circumstances   the   order



can be recalled in order to avoid irremedial injustice.




223.   The   other   aspect   which   has   been   dealt   with   in   great



details is to neutralize any unjust enrichment and undeserved



gain   made   by   the   litigants.     While   adjudicating,   the   courts



must keep the following principles in view.



      1. It is the bounden duty and obligation of the court

         to   neutralize   any   unjust   enrichment   and

         undeserved gain made by any party by invoking

         the jurisdiction of the court.



      2. When   a   party   applies   and   gets   a   stay   or

         injunction from the court, it is always at the risk

         and responsibility of the party applying. An order

         of stay cannot be presumed to be conferment of

         additional right upon the litigating party.



      3. Unscrupulous litigants be prevented from taking

         undue   advantage   by   invoking   jurisdiction   of   the

         Court.



      4. A person in wrongful possession should not only

         be   removed  from   that  place   as  early   as  possible

         but be compelled to pay for wrongful use of that

         premises   fine,   penalty   and   costs.     Any   leniency

         would   seriously   affect   the   credibility   of   the

         judicial system.



      5. No   litigant   can   derive   benefit   from   the   mere

         pendency of a case in a court of law.


                                        159





       6. A party cannot be allowed to take any benefit of

           his own wrongs.



       7. Litigation should not be permitted to turn  into a

           fruitful   industry   so   that   the   unscrupulous

           litigants   are   encouraged   to   invoke   the

           jurisdiction of the court.




       8. The   institution   of   litigation   cannot   be   permitted

           to   confer   any   advantage   on   a   party   by   delayed

           action of courts.




224. It may be pertinent to mention that even after dismissal



of   review   petition   and   of   the   curative   petition   on   18.7.2002,



the applicants  (respondent  Nos. 4 to 8) have been  repeatedly



filing   one   petition   or  the   other   in   order   to   keep   the   litigation



alive.     It   is   indeed   astonishing   that   the   orders   of   this   court



have   not   been   implemented   till   date.     The   applicants   have



made all possible efforts to avoid compliance of the judgment



of this Court.   This is a clear case of abuse of process of the



court.





225. The Court in its order dated 04.11.1997 while accepting



the   report   of   the   MOEF   directed   the   applicant   -   M/s


                                     160


Hindustan   Agro   Chemical   Ltd.   to  pay   a   sum   of   Rs.37.385



crores   towards   the   costs   of   remediation.     The   amount   which



ought   to   have   been   deposited   way   back   in   1997   has   yet   not



been deposited by keeping the litigation alive.




226.   We   have   carefully   considered   the   facts   and



circumstances of this case.   We have also considered the law



declared by this Court and by other countries in a number of



cases.     We   are   clearly   of   the   opinion   that   the   concerned



applicant-industry   must   deposit   the   amount   as   directed   by



this   Court   vide   order   dated   4.11.1997   with   compound



interest. The applicant-industry has deliberately not complied



with  the  orders of  this court since  4.11.1997.   Thousands of



villagers   have   been   adversely   affected   because   no   effective



remedial   steps   have   been   taken   so   far.     The   applicant-



industry has succeeded in their design in not complying with



the court's order by keeping the litigation alive.





227. Both these interlocutory applications being totally devoid



of   any   merit   are   accordingly   dismissed   with   costs.


                                     161


Consequently,   the   applicant-industry   is   directed   to   pay



Rs.37.385   crores   along   with   compound   interest   @   12%   per



annum from 4.11.1997 till the amount is paid or recovered.




228.   The   applicant-industry   is   also   directed   to   pay   costs   of



litigation.     Even   after   final   judgment   of   this   Court,   the



litigation   has   been   kept   alive   for   almost   15   years.     The



respondents have been compelled to defend this litigation for



all   these   years.     Enormous   court's   time   has   been  wasted   for



all these years.




229.   On   consideration   of   the   totality   of   the   facts   and



circumstances of this case, we direct the applicant-industry to



pay   costs   of   Rs.10   lakhs   in   both   the   Interlocutory



Applications.     The amount of costs would also be utilized for



carrying   out   remedial   measure   in           village   Bichhri   and



surrounding   areas   in   Udaipur   District   of   Rajasthan   on   the



direction of the concerned authorities.


                                 162


230. In case the amount as directed by this Court and costs



imposed    by this        Court     are not paid  within  two months,



the same would be recovered as arrears of the land revenue.




231.   Both   these   interlocutory   applications   are   accordingly



disposed of.





                                  ...........................................J.

                                          (DALVEER BHANDARI)





                                  ...........................................J.

                                              (H.L. DATTU)

New Delhi;

July 18, 2011