IMPORTANT POINTS
1. For imposing punishment of fine for violation of pollution control laws fair trial in a competent court is a sine qua non and as such in proceedings under Article 32 Supreme Court cannot impose fine.
2. Article 142 cannot be pressed into aid in a situation where action under that Article would amount to contravention of the specific provisions of the Act itself.

Headnote:(i) Environmental Law-Pollution -Polluter s liability-Fine in addition to damage-Supreme Court in proceedings under Article 32 cannot impose fine-Person guilty of contravention of pollution control laws has to be prosecuted for such offence-Fair trial in a competent court is a sine qua non-Recourse cannot be taken to Article 142 to inflict punishment upon offender-Exemplary damages can be imposed-Show cause notice issued.
       A person guilty of contravention of provisions of Water (Prevention and Control of Pollution) Act, 1974 Environment Protection Act and Air (Prevention and Control of Pollution) Act, 1981 which constitutes an offence has to be prosecuted for such offence and in case the offence is found proved then alone he can be punished with imprisonment and fine or both. The sine qua non for punishment of imprisonment and fine is a fair trial in a competent court. The punishment of imprisonment or fine can be imposed only after the person is found guilty. (Para 17)
       In the instant case, a finding has been recorded that M/s. Span Motel had interfered with the natural flow of river and thus disturbed the environment and ecology of the area. It has been held liable to pay damages. The quantum of damages is under the process of being determined. The Court directed a notice to be issued to show cause why pollution fine be not imposed. In view of the above, it is difficult for us to hold that the pollution fine can be imposed upon M/s. Span Motel without there being any trial and without there being any finding that M/s. Span Motel was guilty of the offence under the Act and are, therefore, liable to be punished with imprisonment or with FINE. This notice has been issued without reference to any provision of the Act. (Para 18)
       The contention that the notice should be treated to have been issued in exercise of power under Article 142 of the Constitution cannot be accepted as this Article cannot be pressed into aid in a situation where action under that Article would amount to contravention of the specific provisions of the Act itself. A fine is to be imposed upon the person who is found guilty of having contravened any of the provisions of the Act. He has to be tried for the specific offence and then on being found guilty, he may be punished either by sentencing him to undergo imprisonment for the period contemplated by the Act or with fine or with both. But recourse cannot be taken to Article 142 to inflict upon him this punishment. (Para 19)
       Pollution is a civil wrong. By its very nature, it is a Tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers of this Court under Article 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held in a series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner. Unfortunately, notice for exemplary damages was not issued to M/s. Span Motel although it ought to have been issued. The considerations for which "fine" can be imposed upon a person guilty of committing an offence are different from those on the basis of which exemplary damages can be awarded. While withdrawing the notice for payment of pollution fine, we direct a fresh notice be issued to M/s. Span Motel to show cause why in addition to damages, exemplary damages be not awarded for having committed the acts set out and detailed in the main judgment. (Para 24)
       (ii) Constitution of India-Article 142-Plenary power of Supreme Court-Scope of-Article 142 cannot be pressed into and in a situation where action under that Article would amount to contravention of Specific Provision of the Act itself. (Para 19)

JUDGMENT

S. Saghir Ahmad, J.-This case, which was finally decided by this Court by its Judgment dated December 13 1996, has been placed before us for determination of the quantum of pollution fine. It may be stated that the main case was disposed of with the following directions:-

1. The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.

2. The prior approval granted by the Government of India. Ministry of Environment and Forest by the letter dated November 24, 1993 and the lease-deed dated April 11, 1994 in favour of the Model are quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original natural conditions.

3. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the river bed and the banks of the river Beas has to be removed and reversed. We direct NEERI through its Director to inspect the area, if necessary, and give an assessment of the cost which is likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of the area. NEERI may take into consideration the report by the Board in this respect.

4. The Motel through its management shall show cause way pollution fine in addition be not imposed on the Motel.

5. The Motel shall construct a boundary wall at the distance of not more than 4 meters from the cluster of rooms (main building of the Motel towards the river basin. The boundary wall shall be on the area of the Motel which is covered by the lease dated September 29, 1981. The Motel shall not encroach/cover/utilise any part of the river basin. The boundary wall shall separate the Motel building from the river basin. The river bank and the river basin shall be left open for the public use.

6. The Motel shall not discharge untreated effluents into the river. We direct the Himachal Pradesh Pollution Control Board to inspect the pollution control devices/treatment plants set up by the Motel. If the effluent/waste discharged by the Motel is not conforming to the prescribed standards, action in accordance with law be taken against the Motel.

7. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into river Beas. The Board shall inspect all the hotels/institutions/factories in Kullu-Manali area and in case any of them are discharging untreated effluent/waste into the river, the Board shall take action in accordance with law.

8. The Motel shall show cause on December 18, 1996 why pollution fine and damages be not imposed as directed by us. NEERI shall send its report by December 17, 1996. To be listed on December 18, 1996."

2. Pursuant to the above Order, notice was issued requiring the Motel to show-cause on two points: (i) why the Motel be not asked to pay compensation to reverse the degraded environment and (ii) why pollution fine, in addition, be not imposed.

3. Mr. G.L. Sanghi, learned Senior Counsel, appearing for M/s. Span Motel Private Ltd. has contended that though it is open to the Court, in proceedings under Article 32 of the Constitution, to grant compensation to the victims whose Fundamental Rights might have been violated or who are the victims of an arbitrary executive action or victims of atrocious behaviour of public authorities in violation of public duties cast upon them, it cannot impose any fine on those who are guilty of that action. He contended that the fine is a component of Criminal Jurisprudence and cannot be utilised in civil proceedings specially under Article 32 or 226 of the Constitution for either by this Court or the High Court as imposition of fine would be contrary to the provisions contained in Article 20 and 21 of the Constitution. It is contended that fine can be imposed upon a person only

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2000 Supreme(SC) 1049

Cases Referred (5)