M.C. MEHTAversusKAMAL NATH AND ORS.

                              M.C. MEHTA                                       A
                                     v.
                       KAMAL NATH AND ORS.

                              MAY 12, 2000

        [S. SAGHIR AHMAD AND DORAISWAMY RAJU, JJ.]                             B

     Environmental Protection and Pollution Control:

     Constitution of India, 1950:

      Articles 48-A, 51-A (g), 32 and 226-Environment and Ecology--
                                                                               c
Pollution and degradation of - "POLLUTER PAYS PRINCIPLE"-lnvoking
of-Notice issued to compalTJ' pursuant to the judgment of Supreme Court
dated I 3-12-1996 for payment of (i) compensation and (ii) pollution fine for
causing degradation of environment-Validity of-Held: In a writ petition or
PIL court can award damages not only for the restoration of the ecological D
balance but also for the victims who have suffered due to ecological
disturbance-However, court cannot impose pollution fine without a trial
and without following the prescribed procedure under the Act-Hence, notice
regarding imposition of pollution fine withdrawn-Environment (Protection)
Act, 1986-Environment (Protection) Rules, 1986-Water (Prevention and E
Control ofPollution) Act, 1974-Water (Prevention and Control ofPollution)
Rules, 1975-Water (Prevention and Control of Pollution) Cess Act, 1977-
Air (Prevention and Control of Pollution) Cess Rules, 1978-Air (Prevention
and Control of Pollution) Rules, 1982-Air (Prevention and Control of
Pollution) (Union Territories) Rules, 1983-Hazardous Wastes (Management
and Handling) Rules, 1989-Manufacture, Storage and Import of Hazardous F
Chemical Rules, 1989-Chemical Accidents (Emergency Planning,
Preparedness and Response Rules), 1996.

      Article 21-"Life"-Any disturbance of the basic elements of the
environment, 110me/y, air, water and soil would be hazardous to "life".
                                                                               G
      Article 142-Environmental Pollution-Fine-Imposition of-Held: If
there is a contravention of the provision of an Act power under Art. 142
cannot be exercised by Supreme Court-Hence, fine on a person can be
imposed only qfier following the procedure prescribed under the relevant Act
and upon finding him guilty.
                                    389
                                                                               H
     390                       SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A          Article 32-Environmental pollution-Writ petition and PIL against-
     Damages and exemplary damages-Awarding of-Held: Supreme Court, under
     Art. 32, can award damages in a PIL or a writ petition-A person can also
     be held liable to pay exemplary damages so that it may act as a deterrent
     not to cause pollution.

B          Doctrines:

           Doctrine of Polluter Pays Principle-applicability of

            This Court issued a show cause notice to the respondents on two points
    viz., (i) why the respondents be not asked to pay compensation to reverse the
C   degraded environment, and (ii) why pollution fine, in addition, be not imposed
    pursuant to its earlier judgment dated 13-12-1996.

           On behalf of the respondents it was contended that fme was a component
    of Criminal Jurisprudence and could not be utilised in civil proceedings,
D   specially under Article 32 or 226 of the Constitution either by this Court or
    the High Court as imposition of fine would be contrary to the provisions
    contained in Articles 20 and 21 of the Constitution; and that fine could be
    imposed upon a person only if it was provided by a statute and gave jurisdiction
    to the Court to inflict or impose that fine after giving a fair trial to that person
    but in the absence of any statutory provision, a person could not be penalised
E   and no fine could be imposed upon him.

           Disposing of the appeal, this Court

          HELD : 1.1. Articles 48 and 51-A(g) of the Constitution have to be
F   considered in the light of Article 21 of the Constitution, which provides that
    no person shall be deprived of his life and liberty except in accordance with
    the procedure established by law. Any disturbance of the basic environment
    elements, namely, air, water and soil, which are necessary for "life", would
    be hazardous to "life" within the meaning of Article 21. (396-8-C)

          1.2. In the matter of enforcement of rights under article 21, this Court,
G
    besides enforcing the provisions of the various Envir'lnmental legislations,
    bas also given effect to Fundamental Rights under Articles 14 and 21 and
    bas held that if those rights are violated by disturbing the environment, it
    can award damages not only for the restoration of the ecological balance, but
    also for the victims who have suffered due to that disturbance. In order to
H   protect the "life", in order to protect "environment" and in order to protect
                           M.C. MEHTA v. KAMAL NATH                              391
    "air, water and soil" form pollution, this Court, through its various judgments,    A
    has given effect to the rights available, to the citiuns and persons alike, under
    Article 21. (396-D-F)

          1.3. In the matter of enforcement of Fundamental Rights under Article
    21, under Public Law domain, this Court, in exercise of its powers under
    Article 32, has awarded damages against those who have been responsible             B
    for disturbing the ecological balance either by running the industries or any
    other activity which has the effect of causing pollution in the environment.
    The Court while awarding damages also enforces the "POLLUTER PAYS
    PRINCIPLE" which is widely accepted as a means of paying for the cost of
    pollution and control To put in other words, the wrongdoer, the polluter, is        C
    under an obligation to make good the damages caused to the environment. It
    was for this reason that this Court by its judgment dated 13-12-1996 directed
    the respondents to pay compensation by way of cost for the restitution of the
    environment ecology of the area. (396-G-H; 397-A-B; GJ

         Indian Council/or Enviro legal Action v. Union of India, AIR (1996)            D
    SC 1446 and Ve/lore Citizens' Welfare Forum v. Union of India, AIR (1996)
    SC 2715, relied on.

          2. This Court directed a notice to be issued to show cause why pollution
'
    fine be not imposed. However, it is difficult to hold that pollution fine can be
    imposed upon the respondents without there being any trial and without there        E
    being any finding that the respondents were guilty of the offence under the
    Act and are, therefore, liable to be punished with imprisonment or with fine.
    This notice has been issued without reference to any provision of the Act.
                                                                          [400-8-CJ

           3. The contention that the notice should be treated to have been issued      F
    in exercise of power under Article 142 of the Constitution cannot be accepted
    as this Article cannot be pressed into aid in a situation where action under
    that Article would amount to contravention of the specific provisions of the
    Act itself. A fine is to be imposed upon the person who is found guilty of having
    contravened any of the provisions of the Act. He has to be tried for the specific   G
    offence and then on being found guilty, he may be punished either by
    sentencing him to undergo imprisonment for the period contemplated by the
    Act or with fine or with both. But recourse cannot be taken to Article 142 to
    inflict upon him this punishment. (400-D-El

          Supreme Court Bar Assn. v. Union of India, AIR (1998) SC 1895 and             H
    392                       SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A   v.c. Mishra, Re: (1995) 2 sec 584, referred to.
           4.1. In addition to the damages which have to be paid by the respondents,
    as directed in the main Judgment, they cannot be punished with fine unless
    the entire procedure prescribed under the Act is followed and the respondents
    are tried for any of the offences contemplated by the Act and are found guilty.
B   The notice issued to the respondents why pollution fine be not imposed upon
    them, is, therefore, withdrawn. But the matter does not end here. (401-C-D)

          4.2. Pollution is a civil wrong. By its very nature, it is a Tort committed
    against the community as a whole. A person, therefore, who is guilty of causing
C   pollution, has to pay damages (compensation) for restoration of the
    environment and ecology. He has also to pay damages to those who have
    suffered loss on account of the act oftbe offender. The powers of this Court
    under Article 32 are not restricted and it can award damages in a PIL or a
    Writ Petition as has been held in a series of decisions. In addition to damages
    aforesaid, the person guilty of causing pollution can also be held liable to
D   pay exemplary damages so that it may act as a deterrent for others not to
    cause pollution in any manner. Unfortunately, notice for exemplary damages
    was not issued to the respondents although it ought to have been issued. The
    considerations for which "fine" can be imposed upon a person guilty of
    committing an offence, are different from those on the basis of which                   '
    exemplary damages can be awarded. While withdrawing the notice for payment
E   of the pollution fine, it is directed that a fresh notice be issued to the
    respondents to show cause why in addition to damages, exemplary damages
    be not awarded for having committed the acts set out and detailed in the main
    judgment. This question shall be heard at the time of quantification of damages
    under the main judgment. ]401-D-G)
F
            CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 182 of
    1996.

            (Under Article 32 of the Constitution of India).

G           M.C. Mehta, (In person) and Ms. Seema Midha, for the Petitioner.

          Altaf Ahmad, Additional Solicitor General, N.C. Kochar, G.L. Sanghi,
    Naresh K. Sharma, N.S. Vashist, Uday Kumar, Kapil Sharma, Ms. Enakshi
    Kulshrestha, Rajiv Dutta, Vijay Panjwani, Anish Garg In-person for Hotel
    Hilton, B.V. Bairam Das, Devendra Singh, C.P. Pandey, Dr. Sushil Balwada and
H   Atul Singh for the Respondents.                                                     .   .
         M.C. MEHTA v. KAMAL NATH [S. SAGHIR AHMAD, J.)                    393
       The Judgment of the Court was delivered by                                A
      S. SAGHIR AHMAD, J. This case, which was finally decided by this
Court by its Judgment dated December 13, 1996, has been placed before us
for determination of the quantum of pollution fine. It may be stated that the
main case was disposed of with the following directions:-
                                                                                 B
      I. The public trust doctrine, as discussed by us in this judgment, is a
part of the law of the land.

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

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

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

      5. The Motel shall construct a boundary wall at a distance of not more     F
than 4 meters from the cluster ofrooms (main building of the Motel) towards
the river basin. The boundary wall shall be on the area of the Motel which
is covered by the lease dated September 29, 1981. The Motel shall not
encroach/cover/utilise any part of the river basin. The boundary wall shall
separate the Motel building from the river basin. The river bank and the river
basin shall be left open for the public use.                                     G
       6. The Motel shall not discharge untreated effluents into the river. We
direct the Himachal Pradesh Pollution Control Board to inspect the pollution
c_ontrol devices/treatment plants set up by the Motel. If the effluent/waste
discharged by the Motel is not conforming to the prescribed standards,
action in accordance with law be taken against the Motel.                        H
    394                       SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

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

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

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

           Mr. G.L. Sanghi, learned Senior Counsel, appearing for Mis Span Motel
    Private Ltd., has contended that though it is open to the Court, in proceedings
    under Article 32 of the Constitution, to grant compensation to the victims
D   whose Fundamental Rights might have been violated or who are the victims
    of an arbitrary executive action or victims of atrocious behaviour of public
    authorities in violation of public duties cast upon them, it cannot impose any
    fine on those who are guilty of that action. He contended that the fine is a
    component of Criminal Jurisprudence and cannot be utilised in civil
E   proceedings specially under Article 32 or 226 of the Constitution either by
    this Court or the High Court as imposition of fine would be contrary to the
    provisions contained in Articles 20 and 21 of the Constitution. It is contended
    that fine can be imposed upon a person only if it is provided by a statute
    and gives jurisdiction to the Court to inflict or impose that fine after giving
    a fair trial to that person but in the absence of any statutory provision, a
F   person cannot be penalised and no fine can be imposed upon him.

          Mr. M.C. Mehta, who has been pursuing this case with the usual vigour
    and vehemence, has contended that if a person disturbs the ecological balance
    and tinkers with the natural conditions of rivers, forests, air and water, ,which
    are the gifts of nature, he would be guilty of violating not only the
G   Fundamental Rights, guaranteed under Article 21 of the Constitution, but also
    be violating the fundamental duties to protect environment under Article
    51 A(g) which provides that it shall be the duty of every citizen to protect and
    improve the nan:iral environment including forests, lakes, rivers and wildlife
    and to show compassion for living creatures.

H         The planet Earth which is inhabited by human beings and other living
         M.C. MEHTA v. KAMAL NATH [S. SAGHIR AHMAD, J.)                    395

creatures, including animals and birds, has been so created as to cater to the    A
basic needs of all the living creatures. Living creatures do not necessarily
mean the human beings, the animals, the birds, the fish, the worms, the
serpents, the hydras, but also the plants of different varieties, the creepers,
the grass and the vast forests. They survive on fresh air, fresh water and the
sacred soil. They constitute the essential elements for survival of "life" on
this planet. The living creatures, including human beings, lived peacefully all   B
along. But when the human beings started acting inhumanly, the era of
distress began which in its wake brought new problems for survival.

       The industrial revolution brought an awakening among the men
 inhabiting this Earth that the Nature, with all its resources was not unlimited C
 and forever renewable. The uncontrolled industrial development generating
tonnes of industrial waste disturbed the ecological balance by polluting the
air and water which in turn, had a devastating effect on the wildlife and,
therefore, the early efforts to protect the environment related to the protection
of wildlife. But then the two world wars, the first world war (1914-1918) and
the second world war ( 1939 - 1945) during which atomic bombs were exploded D
resulting in the loss of thousands of lives and burning down of vast expanses
of forests, made the man realise that if the environmental disturbances were
not controlled, his own survival on this planet would become impossible. The
United Nations, therefore, held a conference on human environment at
Stockholm in 1972. In the wake of the resolutions adopted at that conference, E
different countries at different stages enacted laws to protect the deteriorating
conditions of environment. Here in India, the Legislature enacted three Acts,
namely, The Water (Prevention & Control of Pollution) Act, 1974; the Air
(Prevention & Control of Pollution) Act, 1981 and The Environment (Protection)
Act, 1986. It also enacted the Water (Prevention & Control of Pollution) Cess
Act, 1977. Under these Acts, Rules have been framed to give effect to the F
provisions thereof. They are : The Water (Prevention and Control of Pollution)
Rules, 1975; The Water (Prevention & Control of Pollution) Cess Rules, 1978;
The Air (Prevention and Control of Pollution) Rules, 1982; The Air (Prevention
& Control of Pollution) (Union Territories) Rules, 1983; The Environment
(Protection) Rules, 1986; The Hazardous Wastes (Management and Handling) G
Rules, 1989; The Manufacture, Storage and Import of Hazardous Chemicals
Rules, 1989; The Chemical Accidents (Emergency Planning, Preparedness and
Response) Rules, 1996 and hosts of other Rules and Notifications.

      In addition to these Acts and Rules, there are, on the Statute Book,
other Acts dealing, in a way, with the Environmental laws, for example, the       H
    396                       SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A   Indian Forest Act, 1927; The Forest (Conservation) Act, 1980; The Wildlife
    (Protection) Act, 1972 and the Rules framed under these Acts. Various States
    in India have also made their Environmental laws and rules for the protection
    of environment.

           Apart from the above Statutes and the Rules made thereunder, Article
B   48A of the Constitution provides that the State shall endeavour to protect
    and improve the environment and to safeguard the forests and wildlife of the
    country. One of the fundamental duties of every citizen as set out in Article
    51 A(g) is to protect and improve the natural environment, including forests,
    lakes, rivers and wildlife and to have compassion for living creatures. These
C   two Articles have to be considered in the light of Article 21 of the Constitution
    which provides that no person shall be deprived of his life and liberty except
    in accordance with the procedure established by law. Any disturbance of the
    basic environmental elements, namely air, water and soil, which are necessary
    for "life", would be hazardous to "life" within the meaning of Article 21 of
    the Constitution.
D
           In the matter of enforcement of rights under Article 21 of the Constitution,
    this Court, besides enforcing the provisions of the Acts referred to above,
    has also given effect to Fundamental Rights under Articles 14 and 21 of the
    Constitution and has held that if those rights are violated by disturbing the
E   environment, it can award damages not only for the restoration of the ecological
    balance, but also for the victims who have suffered due to that disturbance.
     In order to protect the "life", in order to protect "environment" and in order
    to protect "air, water and soil" from pollution, this Court, through its various
    judgments, has given effect to the rights, available to the citizens and persons
    alike, under Article 21 of the Constitution. The judgment for removal of
F   hazardous and obnoxious industries from the residential areas, the directions
    for closure of certain hazardous industries, the directions for closure of
    slaughter-house and its relocation, the various directions issued for the
    protection of the Ridge area in Delhi, the directions for setting up effluent
    treatment plants to the Industries located in Delhi, the directions to Tanneries
G   etc., are alkjudgments which seek to protect environment.

          In the matter of enforcement of Fundamental Rights under Article 21,
    under Public Law domain, the Court, in exercise of its powers under Article
    32 of the Constitution, has awarded damages against those who have been
    responsible for disturbing the ecological balance either by running the
H   industries or any other activity which 'has the effect of causing pollution in
         M.C. MEHTA v. KAMAL NATH [S. SAGHIR AHMAD, J.]                       397

the environment. The Court, while awarding damages, also enforces the                A
"POLLUTER PAYS PRINCIPLE" which is widely accepted as a means of
paying for the cost of pollution and control. To put in other words, the
wrongdoer, the polluter, is under an obligation to make good the damages
caused to the environment.

       The recognition of the vice of pollution and its impact on future resources   B
was realised during the early part of 1970. The United Nations Economic
Commission for Europe, during a panel discussion in 1971, concluded that the
total environmental expenditure required for improvement of the environment
was overestimated but could be reduced by increased environmental awareness
and control. In 1972, the Organisation for Economic Cooperation and                  C
Development adopted the "POLLUTER PAYS PRINCIPLE" as a recommendable
method for pollution cost allocation. This principle was also discussed during
the 1972 Paris Summit. In 1974, the European Community recommended the
application of the principle by its member States so that the costs associated
with environmental protection against pollution, may be allocated according
to uniform principles throughout the Community. In 1989, the Organisation for        D
Economic Cooperation and Development reaffirmed its use and extended its
application to include costs of accidental pollution. In 1987, the principle was
acknowledged as a binding principle of law as it was incorporated in European
Community Law through the enactment of the Single European Act, 1987.
Article 130r.2 of the 1992 Maastricht Treaty provides that Community
Environment Policy "shall be based on the principle that the polluter should         E
pay."

       "POLLUTER PAYS PRINCIPLE" has also been applied by this Court in
various decisions. In Indian Council for Enviro Legal Action v. Union of
India, AIR (1996) SC 1446 = [1996] 2 SCR 503 = [1996] 3 SCC 212 = JT 1996 F
2 SC 196, it was held that once the activity carried on was hazardous or
inherently dangerous, the person carrying on that activity was liable to make
good the loss caused to any other person by that activity. This principle was
also followed in Ve/lore Citizens Welfare Forum v. Union ofIndia & Ors., AIR
(1996) SC 2715 = [1996] 5 SCC 647= JT (1996) 7 SC 375 which has also been
discussed in the present case in the main judgment. It was for this reason that G
the Motel was directed to pay compensation by way of cost for the restitution
of the environmental ecology of the area. But it is the further direction why
pollution fine, in addition, be not imposed which is the subject matter of the
present discussion.

     Chapter VII of the Water (Prevention and Control of Pollution) Act, 1974        H
    398                       SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A contains the provisions dealing with penalties and procedure. This Chapter
    consists of Sections 41 to 50. Sub-sections (2) and (3) of Section 41 provide
    for the punishment and imposition of fine. They are quoted below:-

            "41. (2) Whoever fails to comply with any order issued under clause
            (e) of sub-section ( 1) of Section 32 or any direction issued by a Court
B           under sub-section (2) of Section 33 or any direction issued under
            Section 33A, shall, in respect of each failure and on conviction, be
            punishable with imprisonment for a term which shall not be less than
            one year and six months but which may extend to six years and fine,
            and in case the failure continues, with an additional fine which may
            extend to five thousand rupees for every day during which such
c           failure continues after the conviction for the first such failure.

            (3) If the failure referred to in sub-section (2) continues beyond a
            period of one year after the date of conviction, the offender shall, on
            conviction, be punishable with imprisonment for a term which shall
            not be less than two years but which may extend to seven years and
D
            with fine."

           Similarly, Section 42 provides that a person shall be liable to be punished
    with imprisonment for a term which may extend to three months or with fine
    which may extend to ten thousand rupees or with both. Sub-section (2) of
E   Section 42 also contemplates imprisonment for a term which may extend to
    three months or with fine which may extend to ten thousand rupees or with
    both. Section 43 contemplates penalty for contravention of the provisions of
    Section 24. Section 44 contemplates penalty for contravention of Section 25
    or Section 26. They also contemplate imposition of fine. Section 45 provides
    that if a person who has been convicted of any offence under Section 24 or
F   Section 25 or Section 26, is again found guilty of an offence involving a
    contravention of the same provision, he shall, on the second and on every
    subsequent conviction, be punishable with imprisonment for a term which
    shall not be less than two years but which may extend to seven years and
    with fine. Section 45A provides that whoever contravenes any of the provisions
G   of this Act or fails to comply with any order or direction given under this Act,
    for which no penalty has been elsewhere provided in this Act, shall be
    punishable with imprisonment which may extend to three months or with fine
    which may extend to ten thousand rupees or with both and in the case of
    continuing contravention or failure, he may be punished with an additional
    fine. Section 47 contemplates offences by Companies while Section 48
H   contemplates offences by Government Departments.
         M.C. MEHTA v. KAMAL NATH [S. SAGHIR AHMAD, J.]                    399
       Section 15 of the Environment (Protection) Act, 1986 provides for penalty   A
for contravention of the provisions of the Act and the rules, orders and
directions made thereunder. Sub-section (I) of Section 15 speaks of
imprisonment for a term which may extend to five years or with fine which
may extend to one lakh rupees, or with both, and in case the failure or
contravention continues, with additional fme which may extend to five thousand     B
rupees for every day during which such failure or contravention continues
after the conviction for the first such failure or contravention. Section 16 of
the Act contemplates offences by the Companies while Section 17
contemplates offences by Government Departments.

      Chapter VI of the Air (Prevention and Control of Pollution) Act, 1981        C
contains the provisions for penalties and procedure.
       This Chapter consists of Sections 37 to 46. Section 37 provides penalties
for failure to comply with the provisions of Section 21 or Section 22 or with
the directions issued under Section 3 lA. It provides that the person shall be
punishable with imprisonment for a term which shall not be less than one year D
and six months but which may extend to six years and with fine, and in case
the failure continues, with an additional fine which may extend to five thousand
rupees for every day. Sub-section (2) of this Section provides that if the
failure continues beyond the period of one year after the date of conviction,
the offender shall be punishable with imprisonment for a term which shall not
be less than two years but which may extend to seven years and with fine. E
Section 38 also provides penalties for certain acts and it provides that for
such acts as are referred to in that Section, a person shall be punishable with
imprisonment for a term which may extend to three months or with fine which
may extend to ten thousand rupees or with both. Section 39 contemplates
penalty for contravention of certain provisions of the Act and it provides for F
imprisonment for a term which may extend to three months or with fine which
may extend to ten thousand rupees or with both, and in the case of continuing
contravention, with an additional fine which may extend to five thousand
rupees for every day during which such contravention continues after
conviction for the first such contravention. Section 40 speaks of offences by
Companies while Section 41 speaks of offences by Government Departments. G

      All the three Acts, referred to above, also contemplate the taking of the
cognizance of the offences by the Court. Thus, a person guilty of contravention
of provisions of any of the three Acts which constitutes an offence, has to
be prosecuted for such offence and in case the offence is found proved, then
alone he can be punished with imprisonment and fine or with both. The sine H
    400                       SUPREME COURT REPORTS [2000) SUPP. ~ S.C.R.

A qua non for punishment of imprisonment and fine is a fair trial in a competent
    court. The punishment of imprisonment or fine can be imposed only after the
    person is found guilty.

          In the instant case, a finding has been recorded that Mis Span Motel
    had interfered with the natural flow of river and thus disturbed the environment
B   and ecology of the area. It has been held liable to pay damages. The quantum
    of damages is under the process of being determined. The Court directed a
    notice to be issued to show cause why pollution fine be not imposed. In view
    of the above, it is difficult for us to hold that the pollution fine can be imposed
    upon Mis. Span Motel without there being any trial and without there being
C   any finding that Mis. Span Motel was guilty of the offence under the Act
    and are, therefore, liable to be punished with imprisonment or with fine. This
    notice has been issued without reference to any provision of the Act.

         The contention that the notice should be treated to have been issued
  in exercise of power under Article 142 of the Constitution, cannot be accepted
D as this Article cannot be pressed into aid in a situation where action under
  that. Article would amount to contravention of the specific provisions of the
  Act itself. A fine is to be imposed upon the person who is found guilty of
  having contravened any of the provisions of the Act. He has to be tried for
  the specific offence and then on being found guilty, he may be punished
E either by sentencing him to undergo imprisonment for the period contemplated
  by the Act or with fine or with both. But recourse cannot be taken to Article
  142 to inflict upon him this punishment.

         The scope of Article 142 was considered in several decisions and
  recently in Supreme Court Bar Association v. Union of India, AIR (1998) SC
F 1895 = [1998] 4 sec 409, by which the decision of this Court in v.c. Mishra,
  Re, [1995] 2 SCC 584, was partly overruled, it was held that the plenary powers
  of this Court under Article 142 of the Constitution are inherent in the Court
  and are "COMPLEMENTARY" to those powers which are specifically
  conferred on the Court by various statutes. This power exists as a separate
G and independent basis of jurisdiction apart from the statutes. The Court
  further observed that though the powers conferred on the Court by Article
  142 are curative in nature, they cannot be construed as powers which authorise
  the Court to ignore the substantive rights of a litigant. The Court further
  observed that this power cannot be used to "supplant" substantive law
  applicable to the case or cause under consideration of the Court. Article 142,
H even with the width of its amplitude, cannot be used to build a new edifice
           M.C. MEHTA v. KAMAL NATH (S. SAGHIR AHMAD, J.]                  401

where none existed earlier, by ignoring express statutory provisions dealing      A
with a subject and thereby achieve something indirectly which cannot be
achieved directly.

         Similarly, in MS. Ahlawat v. Union ofIndia & Anr., AIR (2000) SC 168
= [2000] l SCC 278, it was held that under Article 142 of the Constitution, the
Supreme Court cannot altogether ignore the substantive provisions of a            B
statute and pass orders concerning an issue which can be settled only
through a mechanism prescribed in another statute.

      Thus, in addition to the damages which have to be paid by Mis Span
Motel, as directed in the main Judgment, it cannot be punished with fine          C
unless the entire procedure prescribed under the Act is followed and Mis
Span Motel are tried for any of the offences contemplated by the Act and
is found guilty.

     The notice issued to Mis Span Motel why pollution fine be not imposed
upon them is, therefore, withdrawn. But the matter does not end here.             D

       Pollution is a civil wrong. By its very nature, it is a Tort committed
against the community as a whole. A person, therefore, who is guilty of
causing pollution, has to pay damages (compensation) for restoration of the
environment and ecology. He has also to pay damages to those who have E
suffered loss on account of the act of the offender. The powers of this Court
under Article 32 are not restricted and it can award damages in a PIL or a Writ
Petition as has been held in a series of decisions. In addition to damages
aforesaid, the person guilty of causing pollution can also be held liable to pay
exemplary damages so that it may act as a deterrent for others not to cause
pollution in any manner. Unfortunately, notice for exmeplary damages was not F
issued to Mis Span Motel although it ought to have been issued. The
considerations for which "fine" can be imposed upon a person guilty of
committing an offence, are different from those on the basis of which exemplary
damages can be awarded. While withdrawing the notice for payment of
pollution fine, we direct a fresh notice be issued to Mis Span Motel to show G
cause why in addition to damages, exemplary damages be not awarded for
having committed the acts set out and detailed in the main judgment. This
notice shall be returnable within six weeks. This question shall be heard at
the time of quantification of damages under the main judgment.

v.s.s.                                                Matter is still pending.    H