INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. UNION OF INDIA & OTHERS IA N0.36 AND IA N0.44

40Copy pinpoint40. The applicant questioned the credibilitY of the NEERl'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.

41Copy pinpoint41. 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. F

42Copy pinpoint42. 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 G 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 H

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A resemblance to the conclusion and findings mentioned in the actual report.

43Copy pinpoint43. 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 8 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 NEER! actually carries out a detailed investigation.

44Copy pinpoint44. 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; ~

D 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, E 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 F 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 G Plant under the provisions of 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. H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 201 ,";! UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 4 (i) That M/s. Hindustan Agro Chemical Ltd., Village A Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.4 established its Solvent Extraction coupled with Oil Refinery Plant in the year 1991 _withouLobtaining pdor consent of the State Board ~

' under the provisions of section 25 and 26 of the B 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 c Plant.

... (iii) That the State Board issued directions, vide order dated 26.11.1993, for closure of Solvent Extraction t Plant under the provisions of section 33A of the D 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. E

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 Board closing down F 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 G 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:- H

202 SUPREME COURT REPORTS [2011] 9 S.C.R.

A "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 .,_ B 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 c 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 a/ia:- .; D "In the meanwhile, the Pollution Control Board is not prevented from and it shall indeed by its duty to 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. H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 203 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] ,,, (v) That despite all efforts for re-commissioning of the A 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 -1 B petition in view of the decision in writ petition (Civil) i 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 c Acid Plant in June 1992 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. + D -1 (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 E 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, ~J Hindustan Agro Chemical Ltd. & Anr. v. State of F 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 -.1 Act. It was alleged that the action of the State Board G 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) H

204 SUPREME COURT REPORTS [2011) 9 S.C.R.

I'' A 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 B I'- 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. c (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 ,_ F 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 G before the court of Chief Judicial Magistrate, J..-

Udaipur. (iv) That the Court of Chief Judicial Magistrate, Udaipur by order dated 15.6.1989 issued injunction against H Mis. Silver Chemicals restraining it from

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 205 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] discharging polluted trade effluent without any A 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 B t1 43 and 44 for violation of the provisions of section 24, 25 and 26 of the Water Act.

{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 c 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 D 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. E 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 -" F 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 Stattl Board on 20.2.89 issued a notice G 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 H

206 SUPREME COURT REPORTS (2011] 9 S.C.R.

A 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. B (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. c 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. F (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 G 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.

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 207 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.]

11. That this Court by its common order and judgment dated 13.2.96 in the aforesaid Writ 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 B (Civil) No.824/93 Hindustan Agro Chemical v. State Pollution Control Board and Others attached the factories, plant, machinery and a11 other immovable assets of respondent nos.4 to 8. The State Pollution Control Board was directed to seal c 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.

45Copy pinpoint45. The written submissions were also filed by the Union D 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 E 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 F 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 G degraded environment of Bichhri, District Udaipur, Rajasthan, the following works will be undertaken on priority-wise:

First Prioritv: H

208 SUPREME COURT REPORTS [2011] 9 S.C.R.

A Phase-I: Source Remediation (Short Term)

Clean up of water near the plant site with highest H-acid contamination. Remediation of contaminated soil and sludge B management within the plant site.

Second Priority:

Phase-II: Hot Spots Remediation (Medium Term) c Clean up of ground water at hot spots.

Third Priority:

Phase-Ill: Residual Contamination Remediation (Long Term) D Clean up of residual contaminated water. Fourth Priority:

Phase-IV (long-term): E Clean up of contaminated soil outside plant boundary.

3. While dealing with the first phase called as short- F term remedies, it has been divided in two parts namely:- (i) Clean up of water near the plant site with highest H-acid contamination. G {ii) Soil and Sludge management within the plant site.

46Copy pinpoint46. The said recommendation given in the SENES/NEERI report further suggests as follows: "Considering the available water quality data the following H alternatives were evaluated in the preliminary review:

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 209 ~" UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] Lime soda process plus Fe coagulation A

Reverse osmosis (RO)

Electro-dialysis t " Ion exchange B

Activated carbon Sorption and

Activated carbon filtration

Similarly, for the second short-term measures namely, the c 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: . Excavation and relocation in a capped landfill. D

Ex-situ remediation (soil washing} Phyto-remediation E Natural attenuation

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: H

210 SUPREME COURT REPORTS [2011] 9 S.C.R.

A 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 B & 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 c agency for undertaking remediation work before execution of the remediation works.

(ii) Organise Technical Advisory Committee '>-

meetings from time to time to guide, review D and supervise the progress of remediation works.

(iii) Co-ordinate activities/works pertaining to actual remediation and submit progress reports to the MoEF. E (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 ,_ F fields to -

(i) Evaluation the recommendations of SENES NEERI Report (July 2002);

(ii) Finalise the detailed line of action and plan ,... G for remediation of environmental damages;

(iii) Review the alternative technologies from the technologies recommended in the SENES- NEERI report and to recommend suitable H technology for remediation of contaminated

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 211 ~' UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] water and soil. A (iv) Supervise the work of actual remediation.

6. As the remediation of environmental damage would require a large sum of money .. , B

47Copy pinpoint47. 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. c In other words, the applicant through 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 0 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 I repeated applications he can delay in making payment of huge remediation costs then it makes business sense as far as the E 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. F I.A. NO. 44 IN W.P.(C)No.967 OF 1989

49Copy pinpoint49. 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 G .vas 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.

50Copy pinpoint50. This application has been filed by respondent No. 4, H

212 SUPREME COURT REPORTS [2011] 9 S.C.R.

•• A 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 .. B in Rajasthan.

51Copy pinpoint51. 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 c 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. ""

52Copy pinpoint52. According to the applicant various experts employed D 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: E "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 I -

F 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."

53Copy pinpoint53. According to the reports of the experts, (who visited the site at the instance of the applicant, after the dismissal of

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 213 ~·~ UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] Review and Curative petition) the report of the NEERI filed in A April 1994 was untenable and unsustainable. According to the . applicant the said report was fabricated. In the application it is also mentioned that this is a fraud in which this court had been I( unwittingly dragged by the officers of the RSPCB and the } ' NEERI to destroy several industries and the livelihood of about B 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.

54Copy pinpoint54. A reply has been filed on behalf of the RSPCB. At the c 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 D 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 has already been upheld by this court. This court on 4.11.1997 passed the following order: __ j "... ... ... In the affidavit of Progress Report, the Gov~rnment 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 """i 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 H

214 SUPREME COURT REPORTS [2011] 9 S.C.R.

r· A 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 'I 8 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 c 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 . D respondents. We accept the proposal submitted by the " Government of India for the purpose of taking remedial measures by appointing Natiunal Productivity Council as the Project Management Consultant. In our opinion, the Ministry of Environment & Forests, Government of India has rightly made a demand of Rs.37.85 crores. E ... ... ... 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 l -

F 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 ,._. G 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

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 215 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 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."

55Copy pinpoint55. In the reply of RSPCB it is mentioned that respondent t B ,• No. 4 had preferred a Contempt Petition (Criminal) No. 7/1999 entitled Hindustan Agro Chemical v. Atka Kala and others and this court dismissed the contempt petition with the costs computed at Rs.10,000/- while observing that there was no basis for contending that any of the respondents have been guilty of fabrication and the whole contempt application was c without any merit.

56Copy pinpoint56. 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 ab<?ve 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 F

Chief Judicial Magistrate, Udaipur by its order dated 11.8.2004 found the accused guilty and convicted him with imprisonment and fine both under Sections 43 and 44 of the Water Act. The said conviction and sentence was upheld by the learned "-"< G 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. '534/2004 before the Rajasthan High Court at Jodhpur. The ~riminal Revision Petition is pending adjudication before the H

216 SUPREME COURT REPORTS [2011] 9 S.C.R.

A High Court of Rajasthan at Jodhpur. .

57Copy pinpoint57. 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, MO!;:F. The said paras reads as under: B t

"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 c 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 • D 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 of India along with the affidavit has not dealt with the correctness/incorrectness of the earlier reports submitted E 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 F 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 G (reported at (1996) 3 sec 212 at 227-231) that a ,._4 challenge was already attempted by the respondents on the reports of NEERI before this Hon'ble Court at the time of hearing."

58Copy pinpoint58. It may be pertinent to mention here that on 22.8.1990

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 217 UNION OF !NOIA & ORS. [DALVEER BHANDARI, J.] ..--; this court had appointed Mr. Mohinder Vyas as Commissioner A .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 B * > collected samples from a number of wells and drains. The Commissioner in his report dated 20. 7.1991 indicated that 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. c

59Copy pinpoint59. 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 D 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: E

•... .. . ... 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. F ......... 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 G ~- contents of mother liquor 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 H

218 SUPREME COURT REPORTS [2011] 9 S.C.R.

1--~ A 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......... . B ...

60Copy pinpoint60. 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:

c "... ... .. . 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 .... ..

61Copy pinpoint61. The MOEF in the month of September, 1993 submitted a report which reads as under:

"5.0 Conclusion

E 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 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."

62Copy pinpoint62. The report which was based upon the inspection of the area in September, 1993 revealed many other alarming

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 219 UNION OF INDIA & ORS. [DALVE(:R BHANDARI, ·J.] features. In para 2, under the heading "Site Observations and A 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/ 8 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 C 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. D 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. H

220 SUPREME COURT REPORTS (2011) 9 S.C.R.

A 2.3 Mis. 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 (H2S04), fertilizer (SSP) and B vegetable oil 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 c 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 (pH: 1.08, Conductivity: 37,100 mg/I, 504:21,000 mg/I, Fe: 392 mg/I, COD: 167 mg/I) which was also revealed in the earlier D visits of the Central teams. However, these units were not in operation during the present visit."

63Copy pinpoint63. Under para 4.2.1, the report(:;d stated inter alia:

E '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 F contaminated soil is buried under the new dump found by ' - the team."

64Copy pinpoint64. 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, G 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 H report had been considered by this court at length on its own

. INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 221 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.]

merits and the observations of the court on the report are contained in the judgment pronounced by it on 13.2.1996.

65Copy pinpoint65. 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 c 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 D 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 ........ ." E

66Copy pinpoint66. 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.

67Copy pinpoint67. 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 rerriedial measures by appointing National Productivity Council (for short NPC), New Delhi as Project Management 9onsultant. Pursuant to these directions, the MOEF awarded the work of conducting H

222 SUPREME COURT REPORTS [2011) 9 S.C.R.

A feasibility studies for suggesting alternative methods for remediation of affected environment in Bichhari, to a consortium . '

of consultants namely: Mis. SENES Consultant Limited, Canada and the NEERI, Nagpur. The above consultants in their report stated that an area of 540 hectares had been affected B 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 c 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

F 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 G next date of hearing... . .. .. ." ...

68Copy pinpoint68. 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 H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 223 /

... UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] by the industry. The report further reveals that the problem in A 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 B ~ 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 c 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. " D

69Copy pinpoint69. 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 :- E "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 F 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 ~" G necessary remedial measures to restore the soil, water resources and the environment in general of the affected area to its former state."

70Copy pinpoint70. According to respondent nos. 4 to 8, two reports of the NEERI of the same date were at variance with each other. In H

224 SUPREME COURT REPORTS [2011) 9 S.C.R.

A 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.

71Copy pinpoint71. Mr. Bhushan, learned senior counsel has submitted in his written submission that according to the original report, it 8 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.

72Copy pinpoint72. 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. ... D

73Copy pinpoint73. 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.

74Copy pinpoint74. In the written submissions it is mentioned that M/s Hindustan Zinc Limited was responsible for discharging noxious and polluting effluents.

75Copy pinpoint75. According to the applicant-industry, the RSPCB has not taken a consistent stand. ,~

76Copy pinpoint76. 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.

77Copy pinpoint77. Mr. Rohatagi also submitted in the supplementary H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 225 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] ..... ~' submissions that the question of liability and the amounts A 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 B .• measures as prepared by the NEERI. The question of fraud and tampering of the NEERI report of 1994 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 c 18.7.2002.

78Copy pinpoint78. In the supplementary submissions it is also mentioned ••-.J 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."

79Copy pinpoint79. 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 NEER! report, after allowing the applicants to H

226 SUPREME COURT REPORTS [2011) 9 S.C.R.

A 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 B 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). c 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"

80Copy pinpoint80. 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 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.

81Copy pinpoint81. It is also submitted in the supplementary submissions •• F 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 f· ..

G consideration by this court.

82Copy pinpoint82. 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

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 227 ,... .~ "\: UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 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 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 c Bhat that since the repor:t of NEERI was prepared at the instance of RSPCB, it is suspect." ,.....

83Copy pinpoint83. 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." G

84Copy pinpoint84. It is also further mentioned ~n 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: H

228 SUPREME COURT REPORTS [2011] 9 S.C.R.

,_. A " ...... 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 8 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."

85Copy pinpoint85. It is also mentioned in the supplementary submissions c 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. D

86Copy pinpoint86. It may be pertinent to mention that this court had accepted the affidavit of Mr. S.N. Kc:.ul, Acting Director, NEERI regarding tampering with the report and this court by its order dated 1.10 .1999 observed as under: E "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. .. F 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

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 229 ,..__ .,. UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] any merit." A

87Copy pinpoint87. 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: B "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 also not prepared to agree with Shri Bhat that since the report of the NEERl·was prepared anhe instance of RSPCB, it is c 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 D be accused of any bias . ... ... ... ... ... ... E 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 F by this court from time to time."

88Copy pinpoint88. 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 G 7 sites, one sample from lake Udaisagar and 17 well water samp1es from the impacted and nearby areas. The report concluded as under: "All the well water samples in the impacted zone have also H

230 SUPREME COURT REPORTS [2011] 9 S.C.R.

A 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 H-acid and its derivatives in the impacted area. Considering the remediation goal of Omg/ B I for H-acid and its derivatives are potential carcinogenic, all well waters, contaminated with H-acid and its derivatives, require remediation.

c fiudden emergence of H-acid in wells W7(Aug.99) and W9 (Aug. 99) clearly indicate that the plume of H-acid c:ontaminated groundwater is moving away from the source of origin and spreading in the direction of 9roundwater flow. This is further confirmed from another fairly conservative parameter TJS 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 NEER! (SENES and the NEERI, 2002)."

89Copy pinpoint89. This report was submitted to the court along with the affidavit dated 8.3.2007 filed by the Union of India. • ..

90Copy pinpoint90. 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 rapid assessment on 6.5.2006. In response, the Director of ITRC

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 231 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] . _ ~·

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 c 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. D

91Copy pinpoint91. It is further submitted in the supplementary submissions of RSPCB that the Interlocutory Applications Nos. 36 and 44 are just another example of obstructive litigatior; undertaken to avoid responsibility. Since 1996 the 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. .: ~

92Copy pinpoint92. Mr. Rohatagi submitted that the applicants relied upon G a series of reports by private consultants, filed subsequent to the decision, which are as follows:

(a) llT Bombay Report of May 2005 suggesting that the samples collected on 5th April, 2005 show that there is no H

232 SUPREME COURT REPORTS (2011] 9 S.C.R.

·-. A 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 > B in any water sample of well and in tube well."

(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. c Hindustan Zinc Limited on the basis of that report.

(d) Report of Mis. Shah Doctor Associates of April, 1994 critical of the analysis in the NEERI report. '""-

(e) Report of SP Mahajan of llT Bombay dated 19.8.1999 D stating that no H-Acid found in the well waters.

93Copy pinpoint93. 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 E superficial.

94Copy pinpoint94. 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 •• F 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 need for G 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).

95Copy pinpoint95. According to the RSPCB Interlocutory Application Nos. H 36 and 44 are blatant examples of vexatious litigation indulged

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 233 . _., _ UNION OF INDIA & ORS. [DALVEER BHANDARI, J.]

in to avoid the responsibility fixed by this court. These A applications should be dismissed with heavy costs on the applicants.

96Copy pinpoint96. Mr. M.C. Mehta, Advocate has filed written ), submissions on behalf of Indian Council for Enviro Legal Action. B ( • 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 c activities. The applicants are trying to delay the payment of Rs.37.385 crores for carrying out remedial measures. This

-- , court in para 70 of the judgment reported in Indian Council for Enviro-Legal Action (supra) observed as under: D "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.

98Copy pinpoint98. In the written submissions Mr. Mehta also submitted G

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 H

234 SUPREME COURT REPORTS [2011] 9 S.C.R.

A extensive field visits, survey and research by 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. B

99Copy pinpoint99. 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. c

100Copy pinpoint100. 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 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.

101Copy pinpoint101. 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

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 235 . _, UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] paying d,amages to the people. A

102Copy pinpoint102. Mr. Mehta has further submitted that this court may impose upon the errant industries as exemplary punitive damages apart from the amount required for eco-restoration > by way of remediation of the land, water and the environment. i B 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 c 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. D

103Copy pinpoint103. 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 sec 213, in which the court observed as under:

"... pollution is a civil wrong. By its very nature, it is a E 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 ec.ology. He has also to pay damages to .--'ii 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 _J addition to damages aforesaid, the person guilty of :t causing pollution can also be held liable to pay exempla "''I y damages so that it may act as a deterrent for oth rs not to cause pollution in any manner." 104. Mr. Mehta su milted that having regard to the respondent's conduct in t e present case, it would be reasonable to impose an addition I pecuniary penalty on them. Reliance is placed on M nister for the environment and Heritage v. Greentree (No.3) H

236 SUPREME COURT REPORTS [2011] 9 S.C.R.

A (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.

105Copy pinpoint105. 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.

106Copy pinpoint106. 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 thct a school, homes and rental units were built over approximately 21,000 tonnes of E 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 F Comprehensive Response Compensation and •• Environmental Liability Act, 1.980, more commonly referred to as the "Superfund", into which polluters contribute monies to enable clean-up of toxic sites.

107Copy pinpoint107. 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

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 237 ·" ... UNION OF INDIA & ORS: [DALVEER BHANDARI, J.] submitted that applicants are liable for causing continuous suffering to the people in Bichhri and surrounding villages.

108Copy pinpoint108. 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/ B 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 is the duty of the government to ensure proper administration of this fund in a transparent and accountable manner. The establishment of c such a fund would ensure that polluters take responsibility for

- ·1 their actions and that monies derived from penalties, damages and settlement are directly invested towards remediating the environmental damage that has occurred. D

109Copy pinpoint109. 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, E Malaysia and other countries.

110Copy pinpoint110. Mr. Mehta also made a reference regarding Public Liability Insurance Act, 1991 which makes it mandatory for --- ;J4 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 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.

111Copy pinpoint111. 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 H

238 SUPREME COURT REPORTS [2011] 9 S.C.R.

A. 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.

112Copy pinpoint112. This case raises many substantial questions of law. 8 We would briefly deal with some of them.

113Copy pinpoint113. 'v'Je would also like to discuss the concept of Finality of the Judgment passed by the Apex Court.

C FINALITY OF JUDGMENT

114Copy pinpoint114. 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 necessary to put a quietus. It is rare that in an adversarial D 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. E • 115. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Ap~x 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 ..,,, imper~tive and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 239 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] ~~ 11

have far reaching adverse impact on the administration of A justice.

116Copy pinpoint116. In Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur (1976) 4 sec 124 this court held that the doctrine of stare decisis is a B very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

117Copy pinpoint117. In Green View Tea & Industries v. Collector, Go/aghat and Another (2002) 1 sec 109 this court reiterated the view c 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 Mis Northern y India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 sec 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 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.

119Copy pinpoint119. Relying on Union of India & Another v. Raghubir ..,.._ '.II; Singh (Dead) by L.Rs. (1989) 2 SCC 754, this Court in F ·Krishna Swami v. Union of India and others (1992) 4 SCC 605 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 v. Union of India (1991) 4 SCC 699. G

120Copy pinpoint120. In Mohd. Aslam v. Union of India & Others (1996) 2 sec 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. H

240 SUPREME COURT REPORTS [2011] 9 S.C.R.

\ 121. In Khoday Distilleries Ltd. and Another v. Registrar ' . General, Supreme Court of India (1996) 3 SCC 114, the 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. B

122Copy pinpoint122. 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.

c 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. ,.,.. D v

124Copy pinpoint124. 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 instant case the petitioner wants to reopen the case by filing the interlocutory application.

125Copy pinpoint125. 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." H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 241 UNION OF INDIA & ORS. [DALVEER !3HANDARI, J.] ~ i I I

126Copy pinpoint126. The Court in the said case observed that having A 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. ;

127Copy pinpoint127. In Mr. "X' v. Hospital "Z" (2000)9 SCC 439, this Court I held thus: Bl

"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 c 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 D 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 Xv. Hospital Z (CA No. 4641of1998)." E

128Copy pinpoint128. 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 F 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. Antu/ay v. R.S. G 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 ofthis that on the ground of long or inordinate delay a condemned H

242 SUPREME COURT REPORTS [2011] 9 S.C.R.

.. A 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 B 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 c proper. ... "

129Copy pinpoint129. In Rupa Ashok Hurra (supra), this Court observed thus: I \.---

24.... when reconsideration of a judgment of this Court is • D 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. E 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 J

cases and that an erroneous decision could be set right

F only by an Act of Parliament. .; .. '

......... ... ... ... 26 .... This Court will not sit as a court of appeal from its G 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 interest if cases once decided by the Court could be reopened and reheard: H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 243 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] t· t "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 Jawsuits. 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." c

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 any principles which should govern the approach of ... \ the Court in dealing with the question of reviewing and revising its earlier decisions."

33. In Magan/al 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

244 SUPREME COURT REPORTS [2011) 9 S.C.R.

A 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 B 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 c 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 '" D 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 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 - i ,... G 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 H

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 245 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] r· 1 the decision-making process not disclosing his links with A 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 B ' ~ 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 c 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 oppressive to judicial conscience and would cause perpetuation of irremediable injustice."

130Copy pinpoint130. 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 .G """ ~ 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 H

246 SUPREME COURT REPORTS [2011) 9 S.C.R.

•• A 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 B 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) violatio,n of principles of natural justice in c that he was not ~ 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 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."

131Copy pinpoint131. 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 G ' :al( 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

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 247 )'' "' UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 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. ' B

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."

132Copy pinpoint132. This court in a recent judgment in M. Nagabhushana c v. State of Kamataka 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: D <\ "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 E 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 b~t a fu~damen~al " ~ principle which sustains the rule of law m ensuring finality F

in litigation. This principle seeks to promote hones~ and

.• a fair administration of justice and to .preven~ abuse m ~he matter of accessing court for agitating on issues which have become final between the parties." G \

133Copy pinpoint133. In order to discourage a litigation which reopen~ !he final judgment of this court, while dismissing the pet1t1on imposed costs of rupees 10 lakhs.

134Copy pinpoint134. We find full corroboration of this principle from the H

248 SUPREME COURT REPORTS [2011] 9 S.C.R.

.. . A cases of other countries. We deem it appropriate to mention some of these relevant cases in the succeeding paragraphs.

ENGLAND

135Copy pinpoint135. The England cases have consistently taken the view B 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. c

136Copy pinpoint136. 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 • D 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 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 E Chievely stated that

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

F 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

G 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) LR. 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. n The principle is expressed in the maxim that

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 249 r _, UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 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, t " 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).

137Copy pinpoint137. In R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) (1999) 2 W.L.R. c 272, the House of Lords set aside one of its earlier orders. In this case, the majority at the House of1Lords 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. D 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 Al's international secretariat E since 1977. The respondent was not aware of Lord Hoffman's relationship to Al 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 - F "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 G regard and therefore its inherent jurisdiction remains unfettered."

138Copy pinpoint138. According to the English law, the judgment of the Apex Court can be reviewed in exceptional circumstances H

250 SUPREME COURT.REPORTS [2011] 9 S.C.R. ~ . A particularly when the judge associated with any of the organizations to be a good ground for reviewing the judgment.

139Copy pinpoint139. 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 B " 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: c

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 D 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 to a panel of Justices to be decided with or without an oral hearing. E (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.

140Copy pinpoint140. In this case, Lord Hope, citing the Pinochet case , , F 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 G powers as the House had to correct any injustice caused '4- 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 I- H requirements of [certain EU] directives [at para. 35].

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. 251 UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] ~ " CANADA. A

141Copy pinpoint141. 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 B " BCCA 350 where principle of judicial bias has been summarized.

142Copy pinpoint142. The principles stated in Roberts regarding judicial bias were neatly summarized in Taylor Ventures Ltd. (Trustee of) (supra), where Donald J.A. stated - c (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; D

(iii) the criterion of disqualification is the reasonable apprehension of bias;

(iv) the question is what would an informed, reasonable E 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- F 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 G on which to base the apprehension; (vi) each case must be examined contextually and the inquiry is fact-specific (at para 7).

143Copy pinpoint143. Cases from Australia also support the proposition that H

252 SUPREME COURT REPORTS [2011] 9 S.C.R.

A a final judgment cannot ordinarily be reopened, and that such ... . steps can be taken only in exceptional circumstances.

144Copy pinpoint144. In State Rail Authority of New South Wales v. Code/fa Constructions Propriety Limited (1982) 150 CLR 29, the High Court of Australia observed: 8 •... 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 C 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. ... "

0 145. 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 E 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 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 .... "