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TMI Blog2011 (7) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... he apex court can be circumvented for more than a decade and a half. This is indeed a very serious matter concerning the sanctity and credibility of the judicial system in general and of the apex court in particular. 2. An environmentalist organisation brought to light the sufferings and woes of people living in the vicinity of chemical industrial plants in India. This petition relates to the suffering of people of village Bichhri in Udaipur District of Rajasthan. In the Writ Petition No.967 of 1989, it was demonstrated how the conditions of a peaceful, nice and small village of Rajasthan were dramatically changed after respondent no. 4 Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum (concentrated form of sulphuric acid) and Single Super Phosphate. Respondent numbers 4 to 8 are controlled by the same group and they were known as chemical industries. The entire chemical industrial complex is located within the limits of Bichhri village, Udaipur, Rajasthan. Pursuit of profit of entrepreneurs has absolutely drained them of any feeling for fellow human beings living in that village. 3. The basic facts of this case are taken from the judgment delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, which is the main source of livelihood for the villagers. The resulting misery to the villagers needs no emphasis. It spreads disease, death and disaster in the village and the surrounding areas. This sudden degradation of earth and water had an echo in Parliament too and the concerned Minister said that action was being taken, but nothing meaningful was done on the spot. The villagers then rose in virtual revolt leading to the imposition of Section 144 of the Criminal Procedure Code by the District Magistrate in the area and the closure of Silver Chemicals in January, 1989. It is averred by the respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped manufacturing 'H' acid since January, 1989 and are closed. We may assume it to be so, yet the consequences of their action remain - the sludge, the long-lasting damage to earth, to underground water, to human beings, to cattle and the village econom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for consent under the Water and Air Acts. When notice dated February 20, 1989 was served upon this unit, the Management replied that this unit was closed for a long time. (e) Re.: Jyoti Chemicals [R-8]: This unit applied for 'No-Objection Certificate' for producing ferric alum. 'No-Objection Certificate' was issued imposing various conditions on April 8, 1988. The 'No-Objection Certificate' was withdrawn on May 30, 1988 on account of non-compliance with its conditions. The consent applied for under Water and Air Acts by this unit was also refused. Subsequently, on February 9, 1989, the unit applied for fresh consent for manufacturing 'H' acid. The consent was refused on May 30, 1989. The Board has been keeping an eye upon this unit to ensure that it does not start the manufacture of 'H' acid. On October 2, 1989, when the unit was inspected, it was found closed. 8. The Government of Rajasthan filed counter-affidavit on January 20, 1990. The Para 3 of the affidavit reads as under:- That the State Government is now aware of the pollution of under-ground water being caused by liquid effluents from the firms arrayed as Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atering crop irrigation and other beneficial uses, and it has also caused human illness and even death, degradation of land and damage to fruit, trees and other vegetation. There are serious apprehensions that the pollution and its harmful effects will spread further after the onset of the monsoon as the water percolating from the higher parts of the basin moves down carrying the pollutants lying on the slopes - in the holding pond and those already underground. 11. This court passed number of orders during the period 1989-1992. 12. On February 17, 1992, this Court passed a fairly elaborate order observing that respondent nos. 5 to 8 are responsible for discharging the hazardous industrial wastes; that the manufacture of 'H' acid has given rise to huge quantities of iron sludge and gypsum sludge - approximately 2268 MT of gypsum-based sludge and about 189 mt. of iron- based sludge; that while the other respondents blamed respondent no.9 as the main culprit but respondent no. 9 denied any responsibility, therefore, according to the Courts, the immediate concern was the appropriate remedial action. The report of the R.S.P.C.B. presented a disturbing picture. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires to be examined further. 16. The work of entombment of sludge again faced several difficulties. While the respondents blamed the Government officers for the delay, the Government officials blamed the said respondents of non-cooperation. Several Orders were passed by this Court in that behalf and ultimately, the work commenced. Orders passed in 1993, filing of Writ Petition (C) No. 76 of 1994 by Respondent No. 4 and the orders passed therein: 17. With a view to find out the connection between the wastes and sludge resulting from the production of 'H' acid and the pollution in the underground water, the Court directed on 20th August, 1993 that samples should be taken of the entombed sludge and also of the water from the affected wells and sent for analysis. Environment experts of the MOEF were asked to find out whether the pollution in the well water was on account of the said sludge or not. Accordingly, analysis was conducted and the experts submitted the Report on November 1, 1993. Under the heading Conclusion , the report stated: 5.0 Conclusion 5.1 On the basis of the observations and analysis results, it is concluded beyond doubt that the sludge inside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming out of the heap. Soil in the area was sampled for analysis. 2.3 M/s. HACL has a number of other industrial units which are operating within the same premises without valid consents from the R.S.P.C.B. These plants are sulphuric acid (H2SO4), fertilizer (SSP) and vegetable oil extraction. The effluents of these units are not properly treated and the untreated effluent particularly from the acid plant is passing through the sludge dump area playing havoc (Photograph was placed on record). The final effluent was collected at the outlet of the factory premises during operation of these units, at the time of groundwater monitoring in September 1993, by the RSPCB. Its quality was observed to be highly acidic (pH : 1.08, Conductivity : 37,100 mg/1, SO4 : 21,000 mg/1, Fe : 392 mg/1, COD : 167 mg/1) which was also revealed in the earlier visits of the Central teams. However, these units were not in operation during the present visit. Under Para 4.2.1, the report stated inter alia: The sludge samples from the surroundings of the (presently nonexistent) solar evaporation and the contaminated soil due to seepage from the newly raised dump site also exhibited very high values o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construction work of storage tank for storing and retaining ten days effluents from the Sulphuric Acid Plant. The construction of temporary tank was supposed to be an interim measure pending the construction of an E.T.P. on permanent basis. The Order dated April 28, 1994 noted the Report of the R.S.P.C.B. stating that the construction of temporary tank was completed on April 26, 1994 under its supervision. The industry was directed to comply with such other requirements as may be pointed out by R.S.P.C.B. for prevention and control of pollution and undertake any works required in that behalf forthwith. Thereafter, the matter went into a slumber until October 13, 1995. NEERI REPORT: 27. At this juncture, it would be appropriate to refer to the Report submitted by NEERI on the subject of Restoration of Environmental Quality of the affected area surrounding Village Bichhri due to past Waste Disposal Activities . This Report was submitted in April, 1994 and it states that it is based upon the study conducted by it during the period November, 1992 to February, 1994. Having regard to its technical competence and reputation as an expert body on the subject, we may be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Only the units of the respondents have been picked upon by the Central and Sate authorities while taking no action against the other units. Even in the matter of disposal of sludge, the directions given for its disposal in the case of other units are not as stringent as have been prescribed in the case of respondents. The decision of the Gujarat High Court in Pravinbhai Jashbhai Patel case shows that the method of disposal prescribed there is different and less elaborate than the one prescribed in this case. (5) The Reports submitted by the various so-called expert committees that sludge is still lying around within and outside the respondents' complex and/or that the toxic wastes from the Sulphuric Acid Plant are flowing through and leaching the sludge and creating a highly dangerous situation is untrue and incorrect. The R.S.P.C.B. itself had constructed a temporary E.T.P. for the Sulphuric Acid Plant pursuant to the Orders of 1994. Subsequently, a permanent E.T.P. has also been constructed. There is no question of untreated toxic discharges from this plant leaching with sludge. There is no sludge and there is no toxic discharge from the Sulphuric Acid Plant. (6) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently. dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury Laws of England, Vol. 45 para 1305. Considerable case law has developed in England as to what is natural and what is non-natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry out part of the developmental programme, this rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den of the pollution incident to the taxpayer. The 'polluter pays' principle was promoted by the Organisation for Economic Co- operation and Development [OECD] during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialised society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed. 24. After hearing the learned counsel for the parties at length, this Court gave the following directions: 1. The Central Government shall determine the amount required for carrying out the remedial measures including the removal of sludge lying in and around the complex of Respondents 4 to 8, in the area affected in village Bichhri and other adjacent villages, on account of the production of 'H' acid and the discharges from the Sulphuric Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for any consideration by this Court. Accordingly, we herewith order the closure of all the plants and factories of Respondents 4 to 8 located in Bichhri village. The R.S.P.C.B. is directed to seal all the factories/ units/plants of the said respondents forthwith. So far as the Sulphuric Acid Plant is concerned, it will be closed at the end of one week from today, within which period Respondent No. 4 shall wind down its operations so as to avoid risk of any untoward consequences, as asserted by Respondent No. 4 in Writ Petition (C) No. 76 of 1994. It is the responsibility of Respondent No. 4 to take necessary steps in this behalf. The R.S.P.C.B. shall seal this unit too at the end of one week from today. The re-opening of these plants shall depend upon their compliance with the directions made and obtaining of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can apply for directions in this behalf after such compliance. 3. So far as the claim for damages for the loss suffered by the villagers in the affected area is concerned, it is open to them or any organisation on their behalf to institute suits in the appropriate civil court. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders are granted meanwhile which effectively disable the authorities from ensuring the implementation of their orders. All this points to the need for creating environment courts which alone should be empowered to deal with all matters, civil and criminal, relating to environment. These courts should be manned by legally trained persons/judicial officers and should be allowed to adopt summary procedures. This issue, no doubt, requires to be studied and examined indepth from all angles before taking any action. 7. The Central Government may also consider the advisability of strengthening the environment protection machinery both at the Center and the States and provide them more teeth. The heads of several units and agencies should be made personally accountable for any lapses and/or negligence on the part of their units and agencies. The idea of an environmental audit by specialist bodies created on a permanent basis with power to inspect, check and take necessary action not only against erring industries but also against erring officers may be considered. The idea of an environmental audit conducted periodically and certified annually, by specialists in the field, duly recognis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was dismissed with costs. IA NO.36 IN WRIT PETITION (C) No.967 OF 1989 28. This Interlocutory Application has been filed on behalf of M/s Hindustan Agro Chemical Ltd. (for short HACL ) whose industrial units situated in Udaipur were directed to be closed down by this Court on the premise that the said units had caused pollution in village Bichhri. This Court while directing for closure of the industrial units of HACL vide its order dated 13.2.1996 had further held that the units be not permitted to run until they deposit the remediation costs for restoring the environment in the area. The Court accordingly directed for the attachment of the properties of HACL. 29. There is a serious attempt to reopen the entire concluded case which stands fully concluded by the judgment of this Court delivered on 13th February, 1996. It may be pertinent to mention that even the review and curative petitions have also been dismissed. By this application, the applicant has also made an attempt to introduce before this Court the opinion of various experts, such as, Dr. M.S. Govil, Mr. S.K. Gupta, Dr. P.S. Bhatt and Ms. Smita Jain who visited the Bichhri village at the instance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut as to whether any remediation is necessary or whether with passage of time nature on its own has taken care of the pollution in the area and because of the same no further remediation is required to be done in the area. This submission is being made without prejudice to the right of the applicant to contend that the applicant had not caused any pollution in the area but the applicant for the limited purpose of this application is ready to assume for the sake of arguments that the applicant had caused pollution in the area and that the nature in the last so many years has taken care of the pollution and on that basis there is no pollution existing in the area at present. 35. One of the issues that came up for consideration before this Court was the liability of the Union of India to take remediation measures in the area even if the applicant were not to pay the remediation costs as determined by the Secretary, MOEF. In these proceedings the counsel on behalf of the applicant made a suggestion to the Court that a fresh team be sent to the units of the applicant to find out whether there is still any pollution existing in the area and also whether any remediation as of today is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where applicant's units are located. This Court had further directed that the units of the applicant would be permitted to operate only after depositing necessary costs for taking measures to restore the environment of the areas. The judgment of this Court was based upon a report dated 5.4.1994 of the NEERI which was filed by the R.S.P.C.B. on 6.1.1996. 40. The applicant questioned the credibility of the NEERI's report. It is submitted that the remediation cost for restoring the environmental quality of the area was only ₹ 3 crores whereas in the report submitted in this Court the remediation cost was stated to be ₹ 37.385 crores. 41. The applicant prayed that in the interest of justice the report dated 25.1.2005 submitted by the expert group to the MOEF be ignored and either accept the reports prepared at the instance of the applicant or fresh direction be issued for constitution of an independent expert group not having any association with NEERI to carry out investigation with relation to the environment in the village Bichhri. 42. According to the applicant, the report of NEERI relied upon by this Court was not the authentic report which was offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Board vide its letter dated 24.7.1992 refused consent to respondent no.4 under the provisions of section 25, 26 of the Water Act for discharging trade effluent from its Solvent Extraction Plant. (iii) That the State Board issued directions, vide order dated 26.11.1993, for closure of Solvent Extraction Plant under the provisions of section 33A of the Water Act, as it was discharging trade effluent without proper treatment and in excess of the prescribed standards. The District Collector Udaipur implemented the directions of closure of Solvent Extraction Plant passed by the State Board. 5 (i) That respondent no.4 preferred a petition before this Court being Writ Petition (C) No.76 of 1994 Hindustan Agro Chemical Ltd. Anr. v. State of Rajasthan Ors. challenging the directions dated 26.11.1993 of the State Board closing down Sulphuric Acid Plant and Solvent Extraction Plant under the provisions of section 33A of the Water Act, 1974. It was alleged that the action of the State Board closing down Sulphuric Acid Plant and Solvent Extraction Plant was arbitrary and highhanded. (ii) That this Court during hearing in the matter on 7.3.94, in WP (C) No.76/94 passed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 33A of the Water Act and 31A of Air Act. The District Collector Udaipur implemented the directions of closure of Chlorosulphonic Acid Plant passed by the State Board. (iii) That respondent no.4 preferred a petition before this Court being Writ Petition (C) No.824 of 1993, Hindustan Agro Chemical Ltd. Anr. v. State of Rajasthan Ors., challenging the directions dated 30.12.1992 of the State Board closing down Chlorosulphonic Acid Plant under the provisions of Section 33A of the Water Act, and 31A of the Air Act. It was alleged that the action of the State Board closing down Chlorosulphonic Acid Plant was arbitration and highhanded. (iv) That this Court dismissed the above mentioned writ petition by judgment dated 13.2.96 in W.P. (Civil) No.824 of 1993 in view of the decision in Writ Petition (Civil) 967 of 1989. 7(i) That M/s Silver Chemicals, Village Bichhri, Tehsil Girva, District Udaipur Rajasthan, respondent no.5 came into existence in February 1988 to manufacture H-Acid and continued its operations upto March 1989 without obtaining prior consent of the State Board under the provisions of section 25 and 26 of the Water Act and Section 21 of the Air Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of section 25, 26 of the Water Act and section 21 of the Air Act. (ii) That the State Board on 20.2.89 issued a notice and directed respondent no.6 to obtain consent of the State Board under the provision of the Water Act for discharging trade effluent from its plant. 9(i) That M/s. Phosphate India, Vilalge Bichhri, Tehsil Girva, District Udaipur, Rajasthan, respondent no.7 established Single Super Phosphate Plant at the site, without obtaining previous consent of the State Board under the provisions of section 25, 26 of the Water Act and section 21 of the Air Act. (ii) That the State Board on 20.2.89 issued a show cause notice and directed respondent no.7 to obtain consent of the State Board under the provisions of the Water Act for discharging trade effluent from its plant. 10(i) That M/s Jyoti Chemicals, Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.8 established its plant, at the site, in the year 1987, to manufacture Ferric Alum without obtaining previous consent of the State Board under the provisions of section 25 and 26 of the Water Act and section 21 of the Air Act. (ii) That the State Board vide its letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant site with highest H-acid contamination. 7 Remediation of contaminated soil and sludge management within the plant site. Second Priority: Phase-II: Hot Spots Remediation (Medium Term) 7 Clean up of ground water at hot spots. Third Priority: Phase-III: Residual Contamination Remediation (Long Term) 7 Clean up of residual contaminated water. Fourth Priority: Phase-IV (long-term): 7 Clean up of contaminated soil outside plant boundary. 3. While dealing with the first phase called as short- term remedies, it has been divided in two parts namely:- (i) Clean up of water near the plant site with highest H-acid contamination. (ii) Soil and Sludge management within the plant site. 46. The said recommendation given in the SENES/NEERI report further suggests as follows: Considering the available water quality data the following alternatives were evaluated in the preliminary review: 7 Lime soda process plus Fe coagulation 7 Reverse osmosis (RO) 7 Electro-dialysis 7 Ion exchange 7 Activated carbon Sorption and 7 Activated carbon filtration Similarly, for the second short-term measures namely, the remediation of soil and sludge management many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve judgment of this Court about fifteen years ago. This application has been filed to avoid liability to pay the amount for remediation and costs imposed by the Court on the settled legal principle that polluter pays principle. In other words, the applicant through this application is seriously making an effort to avoid compliance of the order/judgment of this Court delivered fifteen years ago. The tendency must be effectively curbed. The applicant cannot be permitted to avoid compliance of the final order of this court by abusing the legal process and keep the litigation alive. 48. The applicant is in business where sole motto of most businessmen is to earn money and increase profits. If by filing repeated applications he can delay in making payment of huge remediation costs then it makes business sense as far as the applicant is concerned but the Court must discourage such business tactics and ensure effective compliance of the Court's order. It is also the obligation and bounden duty of the court to pass such order where litigants are prevented from abusing the system. I.A. NO. 44 IN W.P.(C)No.967 OF 1989 49. In this matter the final judgment of the court was del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court had been unwittingly dragged by the officers of the RSPCB and the NEERI to destroy several industries and the livelihood of about 1700 persons and it has been prayed that this court to direct an investigation into the report of April, 1994 prepared by the NEERI at the instance of the RSPCB to examine whether it was false or malafide. 54. A reply has been filed on behalf of the RSPCB. At the outset it has been mentioned that similar challenge by the respondent Nos. 4 to 8 regarding the factum of pollution in village Bichhri and it being attributed to the said respondents had been dismissed by this court on many occasions. This court conclusively reached the finding that the respondent Nos. 4 to 8, by indiscriminate discharge of their polluted trade effluent is in utter disregard and violation of the provisions of the Pollution Control and Environmental Protection Laws had caused intense severe pollution of underground water and of soil in village Bichhri. The veracity of the report of the NEERI has already been upheld by this court. This court on 4.11.1997 passed the following order: ... ... ...In the affidavit of Progress Report, the Government of India has proposed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that they are in a position to deposit ₹ 5.00 lakhs only. In these circumstances, the only alternative left is to direct that the Ministry of Environment and Forests shall take the necessary steps to implement the directions contained in the judgment of this Court. All that we will say at this stage is that the decision regarding remedial measures taken on the basis of the NEERI Report shall be treated as final. The I.As. are disposed of accordingly. 55. In the reply of RSPCB it is mentioned that respondent No. 4 had preferred a Contempt Petition (Criminal) No. 7/1999 entitled Hindustan Agro Chemical v. Alka Kala and others and this court dismissed the contempt petition with the costs computed at ₹ 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 without any merit. 56. In the reply it is also mentioned that the respondent Nos. 4 to 8 had been operating their industrial plants without obtaining consent from the State Board, as required under the provisions of the Water (Prevention Control of Pollution) Act, 1974 and the Air (Prevention Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the report submitted by National Environmental Engineering Research Institute in April 1994 was incorrect. It is further submitted that the experts of Union of India have also not gone into an examined the merits of the earlier reports. 15. It is seen from paras 46-47 of the judgment of this Hon'ble Court reported in the order dated 13.2.1996 (reported at (1996) 3 SCC 212 at 227- 231) that a challenge was already attempted by the respondents on the reports of NEERI before this Hon'ble Court at the time of hearing. 58. It may be pertinent to mention here that on 22.8.1990 this court had appointed Mr. Mohinder Vyas as Commissioner to inspect the wells and assess the degree of pollution created by the operation of H-acid plant and the nature and extent of the remedial operations. In pursuance of the directions, the Commissioner visited the site from 31st August to 4th September, 1990, conducted detailed survey and also collected samples from a number of wells and drains. The Commissioner in his report dated 20.7.1991 indicated that the overall quality of ground water in the area had become highly polluted, the water had become unfit for consumption by man or ani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contaminated soul leachates as shown in the photographs and also supported by the results. The analysis results revealed good correlation between the colour of well water and H-acid content in it. The analysis results show high degree of impurities in sludge/soil and also in well water which is a clear indication of contamination of soil and ground water due to disposal of H-acid waste. 62. The report which was based upon the inspection of the area in September, 1993 revealed many other alarming features. In para 2, under the heading Site Observations and Collection of Sludge/Contaminated Soil Samples , the following facts were stated: 2.1 The Central team, during inspection of the premises of M/s. HACL observed that H-acid sludge (iron/gypsum) and contaminated soil are still lying at different places, as shown in Fig.1, within the industrial premises (photograph 1) which are the leftovers. The area, where the solar evaporation pond was existing with H-acid sludge dumped here and there, was observed to have been leveled with borrowed soil (photograph 2). It was difficult to ascertain whether the sludge had been removed before filling. However, there are visual evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounding village Bichhri, severally affected due to discharge of trade effluent and other industrial wasters by respondent Nos. 4 to 8. The report was submitted before this court in pursuance of its directions in the matter. The report states that the studies were carried out by the NEERI between September, 1992 and February, 1994. The report had been considered by this court at length on its own merits and the observations of the court on the report are contained in the judgment pronounced by it on 13.2.1996. 65. In the reply it is also stated that this court besides considering the report of the NEERI also looked into a number of reports pertaining to inspections, surveys, studies and analysis of wastes and waste waters carried out by the experts of the MOEF, Central Pollution Control Board (for short `CPCB') and the R.S.P.C.B on various occasions, while hearing the matter and pronouncing the judgment therein on 13.2.1996. Therefore, it is totally incorrect and erroneous to contend that the order dated 13.2.1996 was solely based upon the report submitted by the NEERI. Para IV of the conclusions of the judgment dated 13.2.1996 observed as follows: ... ... ...this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner will give their responses, if any, to this I.A. The Government of India may depute an expert and be along with the expert nominated by the Rajasthan State Pollution Control Board and the nominee of the State Rajasthan shall visit the spot after giving intimation to the Petitioner-Indian Council for Enviro Legal Action and verify the facts stated in the affidavit and report the latest position to the Court by the next date of hearing... ... ... 68. An additional affidavit was also filed on behalf of MOEF on the same lines and graphic description of existence of the pollution has affected the ground water to an extent that the entire aquifer may be affected due to the pollution caused by the industry. The report further reveals that the problem in relation to the area in question is basically the contamination of water and the major factor contributing to the cause has been the improper disposal of sludge and liquid wastes from the unit. It has been recommended by the expert team that due to leachable components of the sludge the industry should prepare a double line pit containing impervious liners comprising impervious clay and polyethylene sheets. The sludge should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the earlier reports given by the other experts. 74. In the written submissions it is mentioned that M/s Hindustan Zinc Limited was responsible for discharging noxious and polluting effluents. 75. According to the applicant-industry, the RSPCB has not taken a consistent stand. 76. In the supplementary submissions filed by Mr. K.B. Rohatagi, the learned counsel appearing on behalf of R.S.P.C.B., it is mentioned that in Interlocutory Application Nos. 36 and 44 the applicant-industry has resurrected the same grounds which have previously been settled by this court in Indian Council for Enviro-Legal Action and others v. Union of India and Others (1996) 3 SCC 212. 77. Mr. Rohatagi also submitted in the supplementary submissions that the question of liability and the amounts payable by the applicants based on the NEERI report has been decided by the judgment in the writ petition. The review petition against the said judgment was also dismissed by this court. On 4.11.1997 the applicants had even given an undertaking that they would not dispute any fresh estimate for remedial measures as prepared by the NEERI. The question of fraud and tampering of the NEERI report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. 81. It is also submitted in the supplementary submissions of RSPCB that this court in para 70 of the said judgment also observed that the applicants have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water resources and their entire environment, all in pursuance of their private profit. They have forfeited all claims for any consideration by this court. 82. In the supplementary submissions filed by Mr. Rohatagi it is also mentioned that the court even settled the issue of the alleged hostility of the RSPCB towards the applicants and felt no reason to suspect the veracity of the reports submitted by the RSPCB. This court in para 39 of the said judgment observed as under: If the respondents establish and operate their pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the District Collector at 642 hectares was also accepted by this court vide its order dated 3.8.2005. 86. It may be pertinent to mention that this court had accepted the affidavit of Mr. S.N. Kaul, Acting Director, NEERI regarding tampering with the report and this court by its order dated 1.10.1999 observed as under: It appears that two scientists appointed by the petitioner had inspected a report in the office of NEERI and then observed that there has been a fabrication carried out by the Pollution Control Board. From what has been stated hereinabove, the charge of fabrication is clearly unfounded. It is possible that these two scientists may have seen the draft report which would be with the NEERI but the original report when prepared would be one which was, ultimately, submitted to the sponsoring agency, namely the Rajasthan Pollution Control Board and it is only a copy of the same which could have been retained by the NEERI. Be that as it may, it is clear that what has been filed in this Court as being the final report of NEERI was the copy of the final report which was received by it. There is no basis for contending that any of the respondents have been guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been documented in all the wells (W7, W9, W1, W13 and W16) from time to time. Similar trend could be observed with respect to sulphate and chloride in well water samples collected from these five wells. Comparison of the results obtained in the present study with that of earlier studies establish that the ground water plume contaminated by H-acid and its derivatives is still moving in the direction of ground water flow thereby contamination area being larger than that earlier. This was predicted in the joint report prepared by SENES and the NEERI (SENES and the NEERI, 2002). 89. This report was submitted to the court along with the affidavit dated 8.3.2007 filed by the Union of India. 90. In the supplementary submissions it is also submitted that due to some alleged variations, the Director of ITRC (Indian Toxicological Research Centre) was asked to make a rapid assessment on 6.5.2006. In response, the Director of ITRC stated that there may be a variation due to a lapse of time between the 2002 and 2005 reports. Based on this, MOEF asked the National Chemical Laboratory, Pune to undertake a study, the results of which (placed before the Court in affidavits of 22.1.07 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of 2005 also dealt with three private reports which were rejected on the basis that they were superficial. 94. Mr. Rohatagi further submitted that the liability of the applicants-industries has been fixed far back in 1996. Merely because there may be a diminution in respect of some pollutants due to the passage of time does not, in any way, take away from the responsibility on the applicant to undertake remedial measures for the past and continuing damage to the people and the environment caused by the applicants-industries. The individual claims of farmers may be dealt within individual cases, which would not obviate the need for restoration of the area. This flows from a joint reading of directions of the court in para 71 of the judgment reported in Indian Council for Enviro-Legal Action (supra). 95. According to the RSPCB Interlocutory Application Nos.36 and 44 are blatant examples of vexatious litigation indulged in to avoid the responsibility fixed by this court. These applications should be dismissed with heavy costs on the applicants. 96. Mr. M.C. Mehta, Advocate has filed written submissions on behalf of Indian Council for Enviro Legal Action. It is reitera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 101. Mr. Mehta submitted that even if it was possible to accept that all H-acid traces have been removed, the presence of other contaminants in the affected area (including highly toxic wastes emanating from the Sulphuric Acid Plant and other plants) would necessitate remediation. The amount can be deposited in a Fund and utilized for remediation, providing potable water, tree plantat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took place over a substantial period of time and the respondents did not exhibit any contrition. 105. Mr. Mehta also submitted that the present case would warrant a severe penalty because the respondents carried out their activities without even possessing any appropriate licenses. Respondents must be required to pay exemplary damages so as to act as a deterrent for others, as also to remedy the harm they have caused to the environment and the villagers of Bichhri. 106. Mr. Mehta has also placed reliance on the famous Love Canal Case United States v. Hooker Chems and Plastics Corp., 722 F. Supp 960 (W.D.N.Y. 1989). This case was initiated after it was discovered that a school, homes and rental units were built over approximately 21,000 tonnes of chemical waste at Niagara Falls, New York. The Federal Court of New York allowed a claim against the defendants based on public nuisance. This case was ultimately settled with the defendant agreeing to pay $129 million to the Environment Protection Authority. This case led to the development of the Comprehensive Response Compensation and Environmental Liability Act, 1980, more commonly referred to as the Superfund , into which poll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of this court. Mr. Mehta prayed for dismissal of Interlocutory Application Nos. 36 of 2004 and 44 of 2007 with heavy costs and direct the respondents to deposit ₹ 37.385 crores with the MOEF as per the judgment of this court. 112. This case raises many substantial questions of law. We would briefly deal with some of them. 113. We would also like to discuss the concept of Finality of the Judgment passed by the Apex Court. FINALITY OF JUDGMENT 114. The maxim `interest Republicae ut sit finis litium' says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights. 115. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and held that the writ petition under article 32 of the Constitution assailing the correctness of a decision of the Supreme Court on merits or claiming reconsideration is not maintainable. 121. In Khoday Distilleries Ltd. and Another v. Registrar General, Supreme Court of India (1996) 3 SCC 114, the Court held the reconsideration of the final decision of the Supreme Court after review petition is dismissed by way of writ petition under article 32 of the Constitution cannot be sustained. 122. In Gurbachan Singh Another v. Union of India Another (1996) 3 SCC 117, the Court held that the judgment order of this court passed under Article 136 is not amenable to judicial review under Article 32 of the Constitution. 123. Similar view was taken in Babu Singh Bains and others v. Union of India and Others (1996) 6 SCC 565, a three-Judge bench of this Court held that a writ petition under Article 32 of the Constitution against the order under Article 136 of the Constitution is not maintainable. 124. Another three-Judge bench of this Court in P. Ashokan v. Union of India Another (1998) 3 SCC 56, relying upon the earlier cases held that the challenge to the correctness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Naresh Shridhar Mirajkar (supra) and also in A.R. Antulay v. R.S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper.... 129. In Rupa Ashok Hurra (supra), this Court observed thus: 24. ... when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. 33. In Maganlal Chhaganlal (1974) 2 SCC 402 case a Bench of seven learned Judges of this Court considered, inter alia, the question: whether a judgment of the Supreme Court in Northern India Caterers case (1967) 3 SCR 399 was required to be overruled. Khanna, J. observed: (SCC p. 425, para 22) At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of such remedy and filing in that garb a second review petition as a matter of course, the Constitution Bench said that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of review petition. In this view, strict conditions including filing of certificate by a Senior Advocate were provided in Rupa Ashok Hurra (supra). Despite it, the apprehension of the Constitution Bench that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from filing of large number of curative petitions. It was expected that the curative petitions will be filed in exceptional and in rarest of rare case but, in practice, it has just been opposite. This Court, observing that neither it is advisable nor possible to enumerate all the grounds on which curative petition may be entertained, said that nevertheless the petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. 133. In order to discourage a litigation which reopens the final judgment of this court, while dismissing the petition imposed costs of rupees 10 lakhs. 134. We find full corroboration of this principle from the cases of other countries. We deem it appropriate to mention some of these relevant cases in the succeeding paragraphs. ENGLAND 135. The England cases have consistently taken the view that the judgments of final court must be considered final and conclusive. There must be certainty in the administration. Uncertainty can lead to injustice. Unless there are very exceptional or compelling reasons the judgment of apex courts should not be reopened. 136. In Regina v. Gough, [1993] 1 A.C. 646, with regards to setting aside judgments due to judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Hoffman, one of the majority judges, was a director of Amnesty International Charitable Trust, an organization controlled by Amnesty International, and Lady Hoffman had been working at AI's international secretariat since 1977. The respondent was not aware of Lord Hoffman's relationship to AI during the initial trial. In this case, the House of Lords cited with approval the respondents' concession acknowledging the House of Lords' jurisdiction to review its decisions - In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. 138. According to the English law, the judgment of the Apex Court can be reviewed in exceptional circumstances particularly when the judge associated with any of the organizations to be a good ground for reviewing the judgment. 139. In Pinochet test in Regina (Edwards) v Environment Agency and others [2010] UKSC 57, the Supreme Court of the United Kingdom overruled an earlier order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter realistically and practically, and having thought the matter through, conclude; (iv) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly; (v) the test requires demonstration of serious grounds on which to base the apprehension; (vi) each case must be examined contextually and the inquiry is fact-specific (at para 7). 143. Cases from Australia also support the proposition that a final judgment cannot ordinarily be reopened, and that such steps can be taken only in exceptional circumstances. 144. In State Rail Authority of New South Wales v. Codelfa Constructions Propriety Limited (1982) 150 CLR 29, the High Court of Australia observed: ... it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court of Australia has inherent jurisdiction to vacate its orders in cases where there would otherwise be an irremediable injustice.... 148. American courts also follows a similar pattern. In United States of America v. Ohio Power Company 353 US 98 (1957), the U.S. Supreme Court vacated its earlier order denying a timely petition for rehearing, on the ground that the interest in finality of litigation must yield where interests of justice would make unfair, strict application of Supreme Court's Rules. 149. In Raymond G. Cahill v. The New York, New Haven and Hartford Railroad Company 351 US 183, the Supreme Court observed: ...There are strong arguments for allowing a second petition for rehearing where a rigid application of this rule would cause manifest injustice. FIJI 150. The Supreme Court of Fiji Islands incorporating Australian and British case law summarized the law applicable to review of its judgments. It has been held that the Supreme Court can review its judgments pronounced or orders made by it. The power of the appellate courts to re- open and review their orders is to be exercised with great caution. 151. The cases establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved party filing a review or curative petition was not a party to the lis but the judgment adversely affected his interest or he was party to the lis was not served with notice of the proceedings and the matter proceeded as if he had notice. This court in State of M.P. v. Sugar Singh Others on 9th March, 2010 passed the following order in a curative petition : Though there were eight accused persons, only four accused were arrayed as party respondents in the said appeals namely, Sughar, Laxman, Onkar and Ramesh. Other accused, namely,Bhoja, Raghubir, Puran and Balbir were not impleaded as respondents in these Criminal Appeals and consequently notices were not issued to them. This Court, by judgment on 7th November, 2008 in the aforesaid Criminal Appeals, reversed the acquittal of the accused by the High Court and found them guilty of the offences punishable under Section 304 Part-II read with Section 149 of the I.P.C. and sentenced them to undergo imprisonment for a period of six years. The conviction of the accused for the offences punishable under Section 148 as also Section 326 read with the Section 149 of the I.P.C. and the sentence imposed by the Sessions Court in regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich need elucidation are regarding unjust enrichment, restitution and compound inte rests. 158. Dr. Arun Mohan, Senior Advocate of this court in a recently published book with the title Justice, Courts and Delays analytically, lucidly while taking in view pragmatic realities elucidated concepts of unjust enrichment, restitution and compound interest. 159. By the judgment dated 13.02.1996 this court fixed the liability but did not fix any specific amount, which was ordered to be ascertained. It was on the lines of a preliminary decree in a suit which determines the liability, but leaves the precise amount to be ascertained in further proceedings and upon the process of ascertainment being completed, a final decree for payment of the precise amount is passed. 160. By judgment dated 4.11.1997 this Court, accepting the ascertainment, fixed the amount. The order reads as under: ... ... ...remedial measures taken on the basis of the NEERI report shall be treated as final. We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is the bounden duty and obligation of the court. 168. In fact, it has to be looked from the position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the un-restituted amount. UNJUST ENRICHMENT 169. Unjust enrichment has been defined as: A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. See Black's Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573. 170. A claim for unjust enrichment arises where there has been an unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. 171. `Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation. 178. While Section (') 3 (Unjust Enrichment) reads as under: The phrase unjust enrichment is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court's own process, along with time delay, to do injustice. 184 . For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether. 185. This view of law as propounded by the author Graham Virgo in his celebrated book on The Principle of Law of Restitution has been accepted by a later decision of the House of Lords (now the UK Supreme Court) reported as Sempra Metals Ltd (formerly Metallgesellschaft Limited) v Her Majesty's Commissioners of Inland Revenue and Another [2007] UKHL 34 = [2007] 3 WLR 354 = [2008] 1 AC 561 = [2007] All ER (D) 294. 186. In similar strain, across the Altantic Ocean, a nine judge Bench of the Supreme Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this is a separate issue. 192. In the point under consideration, which does not arise from a suit for recovery under the Code of Civil Procedure, the inherent powers in the court and the principles of justice and equity are each sufficient to enable an order directing payment of compound interest. The power to order compound interest as part of restitution cannot be disputed, otherwise there can never be restitution. PRECEDENTS ON EXERCISE OF POWERS BY THE COURT TOMAKE THE BENEFICIARY WHOLE - RESTITUTION 193. This court in Grindlays Bank Limited vs Income Tax Officer, Calcutta (1980) 2 SCC 191 observed as under :- ...When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. ... 194. In Ram Krishna Verma and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ltd. and Another (1999) 2 SCC 325 observed as under :- From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts. 200. Against this judgment, Special Leave to Appeal (Civil) No 29197/2008 was preferred to the this Court. The Court passed the following order: We have heard learned counsel appearing for the parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed. Interest on interest 201. This court in Alok Shanker Pandey vs Union of India Others (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously accumulated interest.' It is a method of arriving at a figure which nears the time value of money submitted under Head-2 earlier. 206. As noted, compound interest is a norm for all commercial transactions. 207. Graham Virgo in his important book on `The Principles of the Law of Restitution at pp26-27 has stated and relevant portion is reproduced as under: In Westdeutsche Landesbank Girozentrale v London Borough Council 1996 A.C. 669 the issue for the House of Lords was whether compound interest was available in respect of all restitutionary claims. By a majority it was decided that, since the jurisdiction to award compound interest was equitable, compound interest could only be awarded in respect of equitable restitutionary claims. Consequently, where the claim was for money had and received the claimant could only obtain simple interest because this was a common law claim. The majority supported their conclusion by reference to a number of different arguments. In particular, they asserted that, since Parliament had decided in 1981 that simple interest should be awarded on claims at common law, it was not for the House of Lords to award compound interest in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation. ... 209. In Ouseph Mathai and others v. M. Abdul Khadir (2002) 1 SCC 319 this court reiterated the legal position that the stay granted by the court does not confer a right upon a party and it is granted always subject to the final result of the matter in the court and at the risk and costs of the party obtaining the stay. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978. 213. In a relatively recent judgment of this court in Amarjeet Singh and others v. Devi Ratan and others (2010) 1 SCC 417 the court in para 17 of the judgment observed as under: No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation. 217. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 218. This court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under: While imposing costs we have to take into consideration pragmatic r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the proceedings the concerned judge failed to disclose the connection with the subject matter or the parties giving scope of an apprehension of bias and the judgment adversely affected the petitioner. iii) The other exception to the rule is the circumstances incorporated in the review or curative petition are such that they must inevitably shake public confidence in the integrity of the administration of justice if the judgment or order is allowed to stand. 222. These categories are illustrative and not exhaustive but only in such extremely exceptional circumstances the order can be recalled in order to avoid irremedial injustice. 223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view. 1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. 2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der by keeping the litigation alive. 227. Both these interlocutory applications being totally devoid of any merit are accordingly dismissed with costs. Consequently, the applicant-industry is directed to pay ₹ 37.385 crores along with compound interest @ 12% per annum from 4.11.1997 till the amount is paid or recovered. 228. The applicant-industry is also directed to pay costs of litigation. Even after final judgment of this Court, the litigation has been kept alive for almost 15 years. The respondents have been compelled to defend this litigation for all these years. Enormous court's time has been wasted for all these years. 229. On consideration of the totality of the facts and circumstances of this case, we direct the applicant-industry to pay costs of ₹ 10 lakhs in both the Interlocutory Applications. The amount of costs would also be utilized for carrying out remedial measure in village Bichhri and surrounding areas in Udaipur District of Rajasthan on the direction of the concerned authorities. 230. In case the amount as directed by this Court and costs imposed by this Court are not paid within two months, the same would be recovered as arrears o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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