VINEET KUMAR MATHUR

UNION OF INDIA AND ORS.

JANUARY 23, 1996

[B.P. JEEVAN REDDY AND G.T. NANAVATI, JJ.]

Contempt of Court :

Supreme Court's order for closure of Mohan Meakin's plant for not C conforming to anti-pollution standards-Operating the plant in contravention of the orders-Subsequently running the plant with the "consent" obtained from Uttar Pradesh Pollution Control Board, also in contravention of the orders-Plea that as per advice of technical experts if the plant remained closed for more than seven days, process of destabilisation would set in which would be very harmful to the general public-Subsequent 1unning of the plant D with "consent" from UP Pollution Control Board was with stipulation that the plant should achieve the prescribed standards by a crtain dat~'Consent" by the Board also violative of the order of Supreme Court-{Jnconditional apology tendered by contemnors rejected-Guilty of contempt not merely in a technical sense but in real sense-Compensatory fine of Rs. 5 /akhs to be E deposited in Court within four weeks-On the deposit being made contempt proceedings would stand dropped-in default each contemnor to undergo simple imprisonment for a period of one montlt--Amount if deposited to be utilised for purposes connected with cleaning of Gomti Rivei-fndustrial Pollution.

F CIVIL ORIGINAL JURISDICTION : Writ Petition (c) No. 327 of 1990.

(Under Article 32 of the Constitution of India.)

F.S. Nariman, M.C. Bhandare, A.B. Rohtagi, D.A. Dave, P.H.

G Parekh, Ms. Bina Madhvan, Sandeep Parekh, Lalit Bhasin, Ms. Nina

Gupta, Neeraj Sharma, Ms. Kiran Bhardwaj, Ms. Geetanjali Mohan, K.K. " Mohan, A.K. Srivastava, P. Misra. Arun K. Sharma for S.K. Jain, S. Wasim, A. Qadri for Ms. Anil Katiyar, Sri Narain, Arvind Minocha, R.

Ramachandran, AK. Sil, Mrs. L. Kaushik, R.P. Singh, K. Vasdev, Shakeel H Ahmad, Vmay Garg, R.B. Misra, S.K. Misra and Shakil Ahmed Syed for

the appearing parties.

The following Order of the Court was delivered :

This Order may be read in continuation of our Order dated November 8, 1995.

Two contempt notices have been issued to the respondents herein, Brig. Kapil Mohan and Sri Yogesh Kumar, Managing Director and Chief Executive Officer respectively of Mohan Meakins Limited. The first pertains to their operating the plant between 7th and 11th April in contravention of the orders of this Court dated January 15, 1993 while the second notice concerns their obtaining the "consent" from the Utter Pradesh Pollution Control Board [U.P.P.C.B.] on April 21, 1993 and operating their plant on that basis in contravention of the said order dated January 15,

1993. The arguments on the first notice were heard on the previous day

of hearing when the contempt case against the ex-officio Chairman and Member-Secretary of U.P.P.C.B. was heard. On the second notice, we have D now heard Sri F.S. Nariman for the contemnors. Sri P.H. Parekh again assisted us as anticus curiae .

We shall deal with the first notice in the first instance. In terms of the order dated January 15, 1993, Mohan Meakin's plant was closed on and with effect from April 1, 1993 since the P.C.B. refused to certify that E the said plant has attained the prescribed level of anti-pollution standards.

There was no order from this Court or from the P. C.B. permitting the said plant to operate. It is an admitted fact that the said plant was operated between 7th and 11th April, 1993. The explanation offered by the contemnors for it is contained in the affidavit filed by Sri Y ogesh Kumar on April F 27, 1993 and the affidavit filed by Brig. Kapil Mohan on May 1, 1993. Their case is that the running of the plant between the said two dates was necessary to avoid danger to public health and safety. It is stated that according to the advice of the technical experts, if the plant had remained closed for more than seven days, process of de-stabilisation would set in which could have been very harmful to the general public. It is in view of G the said advice, they stated, they started the plant just to avoid the process of de-stabilisation from setting in. They also asserted that before starting the plant, Sri Yogesh Kumar filed an affidavit in this Court stating the correct facts and the compulsions under which the unit had to work for a short period. Brig. Kapil Mohan, Managing Director, stated in addition H

A that he is not directly concerned with the functioning and working of Mohan Meakin's plant which, according to him, is in the hands of Sri Y ogesh Kumar and other officials. He has however, accepted his overall responsibility as the Managing Director for what has been done. He fully supported and reiterated the reason assigned by Sri Y ogesh Kumar for

running the plant between the said two dates.

The reason given by the respondents for operating the plant on those days is not acceptable for more than one reason. Firstly, the correctness of the reason assigned by them is disputed by P.C.B. Secondly, in their application dated April 2, 1993 addressed to the P.C.B., Mohan Meakins did !'ever say that it is necessary to run the plant for the aforesaid reasons nor was any permission sought for operating the plant for a few days. It was regular application for grant of consent on the ground that they have since attained the prescribed level of anti-pollution measures. Thirdly, no application was made to this Court for according such permission. Filing D of a mere affidavit on 6th and 7th April, 1993, stating the said reason, did not by itself amount to granting such permission by this Court, nor could it operate to suspend the operation of the Order dated January 15, 1993.

More important is the fact that according to the Order of this Court dated January 15, 1993 the industries which did not remove the deficiencies by 21st March, 1993 had to close down with effect from March 31, 1993. The E Mohan Meakin's plant was inspected by the P.C.B. officials sometime in March, 1993 who found that the plant had not achieved the required level of antipollution standards. A formal order of closure was served upon Mohan Meakins on March 31,1993 to close down the plant. If the reason

given by Mohan Meakins is really true, one would expect Mohan Meakins to approach the P.C.B. immediately for permission to run the plant for a few days to eliminate the alleged causes of de-stabilisation of the plant.

Indeed, once Mohan Meakins could not achieve the prescribed level of anti-pollution measures by March 21, 1993, they should have known that will have to close down the plant with effect from March 31, 1993 in terms of the Order dated January 15, 1993. As prudent persons managing such G a plant, they ought to have started winding down operations so as to close it altogether on and with effect from March 31, 1993. If they had done so, the alleged hazard from a sudden closure would not have arisen. The contemnors cannot say that until the formal order of closure was served upon them by the P.C.B. on December 31, 1993 they did not know that H they would have to close down with effect form March 31, 1993, for the

P.C.B's. order was only in terms of the Order of this Court. For all the A above reasons, we are unable to accept the reasons put forward by the contemnors for running the plant between 7th and 11th April, 1993. We are of the opinion that the said act on their part is in clear violation of the order dated January 15, 1993. They are guilty of violating the said Order of this Court.

Now, coming to the second charge of contempt comprised in obtaining of consent on April 21, 1993 and running the plant on and with effect from 21st/23rd April, 1993, the case against the contemnors is that they obtained "consent" from the P.C.B. on April 21, 1993 and started operating their plant on that basis in violation of the Order dated January 15, 1993.

Apart from reiterating the apology tendered by them, the main contention of Sri F.S. Nariman is : Mohan Meakin's plant was closed on and with effect from April 1, 1993 pursuant to the Order of this Court dated January 15, 1993; the said Order did not, however, preclude or bar D Mohan Meakins from applying afresh for consent and from running their plant if they attained the desired level of anti-pollution standards ; when their plant was inspected by the Pollution Control Board (P.C.B.) officials in March, 1993, the pollution levels were said to be slightly higher than those prescribed by the rules ; that was rectified by April 2, 1993; accordingly they applied to the P.C.B. for grant of consent stating that they have E now attained the desired standards of anti-pollution ; in response to the said application, the P.C.B. granted consent on April 21, 1993; it is true that P.C.B. stipulated in their order of consent that Mohan Meakin's plant shall attain the prescribed level of anti-pollution standards by December 31, 1993 but for that Mohan Meakins cannot be held responsible since they F themselves never applied for consent subject to such a condition nor does the order of "consent" say that they had not achieved the desired level of effluent treatment. Sri Nariman contended that in the above circumstances, Mohan Meakins or its officials cannot be said to have disobeyed or acted in violation of this Court's Order dated January 15, 1993. Learned counsel G further contended that so far as the last para of the order of "consent" dated April 21, 1993 is concerned, it was in Hindi and they bonafide understood the word

11adheen 11 to mean

11under 11 • Even if the said word is construed as

11subject tot!, even then the officials of Mohan Meakins cannot be held guilty of violating this Court's Order though it is possible to suggest that it would have been desirable for Mohan Meakins to apply to this Court H

A for appropriate directions before starting their plant under and in pursuance of the aforesaid consent. This argument, no doubt, appears attractive at first sight but it does not stand a closer scrutiny. We may elaborate.

The Order dated January 15, 1993 was not passed abruptly. It was the culmination of a series of orders made by this Court. On the basis of a letter written by Sri Vineet Kumar, this Court had issued notice to concerned industries including Mohan Meakins. In response to the notice, Mohan Meakins filed an affidavit on July 17, 1990 stating that they have installed an effective effluent treatment plant and that they are not polluting the river Gomti in any manner. However, according to the affidavit filed C by P.C.B., Mohan Meakins was also responsible for seriously polluting the water in the river. They stated [affidavit filed on July 31, 1990] that according to the latest analysis, Mohan Meakins has not achieved the prescribed standards. On 6th February, 1991 this Court passed an Order

asking the P.C.B. to verify all the relevant facts and file a fresh affidavit.

D On 20th March, 1991 the Board filed an affidavit stating that the samples taken from Mohan Meakin's plant were sent for analysis to Central Laboratories, Lucknow and that their report is awaited. On 2nd November, 1992 the Board filed an affidavit stating that though Mohan Meakins along with certain other industries has been discharged from prosecution on

account of their installing an effluent treatment plant, analysis of their discharge established that they have not achieved the prescribed standards.

For that reason, it was stated, the consent applied for by Mohan Meakins was refused. On 11th January, 1993 the Board filed a further affidavit stating that inspite of the fact that the Board has refused consent to Mohan Meakins, they are continuing to operate their plant and are discharging effluents into Gomti river in utter violation of the pollution control laws. [On 14th January, 1993 Mohan Meakins filed an affidavit stating inter alia that the revised standards prescribed by the Pollution Control Board are unrealistic and impracticable and that even so they are making every effort to reach those standards.] It is in the context of the above circumstances that the Order dated January 15, 1993 was passed. (The order has been G re-produced in the Order dated November 8, 1995 and need not be repeated over again here.)

The facts aforestated indicate that notwithstanding the refusal of consent by the P.C.B., Mohan Meakins has been running their plant and H discharging effluents into Gomti river in a brazen manner. They also

disclose that Mohan Meakins has not achieved the prescribed level of A anti-pollution standards - not even by March 21, 1993, though they were given time till 21st March, 1993 avowedly to enable them to achieve the prescribed standards. Since they could not attain the prescribed standards, their plant was ordered to be closed on and with effect from March 31,

1993. Having closed down the plant with effect from 1st April, 1993 they B came forward with an application on the very next day (on April 2, 1993) addressed to the P.C.B. that they have achieved the prescribed standards and must, therefore, be granted the "consent" to enable them to re-start their operations. Curiously enough, the P.C.B. granted the consent on April 21, 1993 with a condition that Mohan Meakins should achieve the prescribed standards by December, 31, 1993. The P.C.B. did not inspect c

or verify the claim of Mohan Meakins that they have already achieved those standards nor did Mohan Meakins protest that since they have already attained the prescribed standards, the said stipulation was meaningless. As pointed out in our Order dated November 8, 1995, this order of "consent" D was in clear and direct violation of the Order dated January 15, 1993 and that the addition of words that the "consent" granted was subject to the Orders of this Court was a mere ploy. Be that as it may, the plea of the contemnors that they understood the word "adheen" in the said order to mean "under" is ex-facie unacceptable. The said consent order with the aforesaid stipulation was in total violation of this Court's Order dated January 15, 1993 (to which Mohan Meakins was also a party). It is inconceivable that the contemnors could understand the said consent order as having been granted under the aforesaid Order of this Court. In the circumstances, the minimum that should have been done by the contemnors was to apply to tills Court for appropriate directions or clarification, as the case may be, in the light of the said "consent" and not to go ahead and re-start plant on the basis of the said consent. If they had applied to this Court for directions, this Court could have immediately pointed out that the grant of "consent" with the stipulation that the plant should achieve

the prescribed standards by December 31, 1993 was plainly opposed to the G Order dated January 15, 1993 and cannot stand. This Court could have also verified the claim of Mohan Meakins (about achieving the prescribed standards by April 2, 1993) by ordering an inspection. Evidently, the contemnors wanted to avoid all this. They did not wish to lose the illegitimate benefit conferred upon them by the P.C.B. This inference H

A becomes re-inforced when we look to the conduct of both the Mohan Meakins and the P.C.B. in trying to keep the fact of grant of "consent" on April 21, 1993 concealed from this Court. The following facts establish the said attempt :

B Sri Y ogesh Kumar and Brig. Kapil Mohan filed their affidavits in this Court on April 27, 1993 and May 1, 1993 respectively. But in neither affidavit was the fact of consent granted by the P.C.B. on April 21, 1993 mentioned. It is interesting to note that on May 4, 1993 an affidavit was filed on behalf of the P.C.B. in reply to the affidavii of Sri Yogesh Kumar.

Jn this affidavit, the Board denied correctness and validity of the reason C given by Sri Yogesh Kumar for running the plant between 7th and 11th of April, 1993, but there was no reference to the order of consent. In view of the lack of clarity in the aforesaid affidavits, Sri P.H. Parekh, Advocate, who was appointed as amicus curiae in this matter, addressed a letter dated May 8, 1993 to the learned advocate for Mohan Meakins asking him to D clarify on what basis Mohan Meakins have re-started the plant and to supply him with the orders, if any, passed by the Board in that behalf.

There was no reply. Hence, Sri Parekh sent a reminder on May 14, 1993.

On October 8, 1993 this Court passed an order noticing the grievance of Sri Parekh that inspite of his two letters, Mohan Meakins have not supplied to him the necessary information and ordering Mohan Meakins to supply E the same. A cost of Rs. 10,000 was also imposed upon the company. It is only then that an affidavit was filed on behalf of the Mohan Meakins on October 24, 1993 disclosing the order of consent dated April 21, 1993. A copy of the "consent" was enclosed to the affidavit. The anxiety to conceal the "consent" from this Court is not without significance. They knew that it F was granted in plain violation of this Court's Order \lated January 15, 1993 and were wary about disclosing it to this Court. Until forced by this Court to come out with it, they did not disclose it.

In all the above circumstances, we cannot accept the plea that Mohan Meakins did not violate the Order dated January 15, 1993 by obtaining the G "consent" on April 21, 1993 and by running their plant on that basis. It is obvious that Mohan Meakins [and some other industries] and U.P.P.C.B. together enacted a charade-one saying within one day of closure that it had achieved the prescribed standards and the other granting the consent with a stipulation that the prescribed standards shall be achieved by the end of H the year 1993. For this purpose, the P.C.B. relied upon a Government

V.K. MA TIIUR v. U.0.1. 855

Order, which it could not, for reasons assigned in our Order dated Novem- A ber 8, 1995. We have already found the ex-officio Chairman and Memher- Secretary of the Board guilty of contempt. In the light of the facts aforesaid,

w~ hold both the contemnors guilty of violation of this Court's Order dated January 15, 1993. We cannot also accept the unconditional apology tendered by the respondents. The violation is a knowing one, deliberate B and pre-planned. It indicates a certain defiant attitude on the part of Mohan Meakins, i.e., contemnors. Accordingly, the unconditional apology tendered by the contemnors is rejected.

Question then arises as to the punishment to be awarded to the respondents-contemnors. While contending that the respondents are not guilty of contempt and that at the most it may be a case of error of judgment, Sri Nariman suggested that even in case the respondents are found technically guilty of contempt of court, this Court may consider directing the respondents to pay an amount of about Rupees one lakh to

a particular charity or for some other public purpose and that the respon- D dents would be glad to do so. We have now found the respondents guilty of contempt of court not merely in a technical sense but in a real sense and on two counts. It may also be noticed that the running of Mohan Meakin's plant after April 21, 1993 pursuant to the consent obtained from the U.P.P.C.B. was a continuing violation of this Court's Order and it continued over a long period - atleast till December 31, 1993, if not beyond.

Invoking this Court's power to punish for contempt under Article 129 of the Constitution and taking into consideration the suggestion, or the offer, as it may be called of Sri Nariman, and keeping in view all the facts and circumstances of the case, we impose a compensatory fine of Rupees five lakhs to be deposited in this Court within a period of four weeks from today. On such deposit being made, the contempt proceedings shall stand dropped. In default of such deposit, each of the respondents shall undergo simple imprisonment for a period of one month. The amount, if deposited, shall be utilised for purposes connected with the cleaning of Gomti river, for which orders will be pdssed by us after the deposit is made.

The contempt notices are accordingly disposed of. The respondents shall pay a sum of Rs. 10,000 by way of costs which shall be paid over into Supreme Court Middle Income Legal Aid Society.

G.N.

Petition disposed of.