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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 ..... ants 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 delivered in the Writ Petition No.967 of 1989. In the beginning of the judgment of this court delivered on February 13, 1996, it is observed as under: "It highlights the disregard, nay, contempt for law and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, as they do, of the country's need for industrialisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 economy. 7. The Rajasthan State Pollution Control Board (for short "R.S.P.C.B.") in pursuance of the show cause notice filed a counter affidavit and stated the following averments: (a) Re.: Hindustan Agro Chemicals Limited (respondent for short) [R-4]: The unit obtained 'No-Objection Certificate' from the R.S.P.C.B. for manufacturing sulphuric acid and Alum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 Respondent Nos. 4 to 8 in the writ petition. Therefore, the State Government has initiated action through the Pollution Control Board to check further spread of pollution." 9. The State Government stated that the water in certain wells in Bichhri village and some other surrounding villages has become unfit for drinking for human beings and cattle, though in some other wells, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. It stated that the respondents have deliberately spread the hazardous material/sludge all over the place which has only heightened the problem of its removal and that they have failed to carry out the orders of this Court dated April 4, 1990. Accordingly, this Court directed the MOEF to depute its experts immediately to inspect the area to ascertain the existence and extent of gypsum-bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94 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 the emoted pit is the contaminated one as evident from the number of parameters analysed. 5.2 The ground water is also contaminated due to discharge of H- acid plant effluent as well as H-acid sludge/contaminated soil leachiest as shown in the photographs and also supported by the results. The analysis result revealed good correlation between the colour of well water and H-acid content in it. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 of the above mentioned parameters. This revealed that the contaminated soil is buried under the new dump found by the team. 25. So much for the waste disposal by the respondents and their continuing good conduct. To the same effect is the Report of the R.S.P.C.B. which is dated October 30, 1993. 26. In view of the aforesaid Reports, all of which unanimously point out the consequences of the 'H' acid pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 to refer to its Report at some length: 18. The judgment also dealt with damaging of crops and fields. The finding of the Court was that the entire contaminated area comprising of 350 hectares of contaminated land and six abandoned dump sites outside the industrial premises has been found to be ecologically fragile due to reckless past disposal activities practised by M/s.Silver Chemicals Ltd. and M/s. Jyoti Chemicals Ltd. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed 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) The case put forward by the R.S.P.C.B. that the respondents' units do not have the requisite permits/ consents required by the Water Act, Air Act and the Environment [Protection] Act is again unsustainable in law and incorrect as a fact. The respondents' units were established before the amendment of Section 25 of the Water Act and, therefore did not require any prior consent for their establishment. (7) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not....We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in escape of toxic gas the enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llution 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 Acid Plant of Respondents 4 to 8. Chapters-VI and VII in NEERI Report [submitted in 1994] shall be deemed to be the show-cause notice issued by the Central Government proposing the determination of the said amount. Within six weeks from this day, Respondents 4 to 8 shall submit their explanation, along with such material as they think appropriate in support of their case, to the Secretary, Ministry of Environment and Forests, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 they file the suit or suits in forma pauperis, the State of Rajasthan shall not oppose their applications for leave to sue in forma pauperis. 4. The Central Government shall consider whether it would not be appropriate, in the light of the experience gained, that chemical industries are treated as a category apart. Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 recognised, can also be considered. The ultimate idea is to integrate and balance the concern for environment with the need for industrialisation and technological progress." 25. The orders of this Court have not been implemented till date because by filing of number of interlocutory applications the respondent nos.4 to 8 have kept the litigation alive. These respondents have been successful in avoiding compliance of the judgment of this Court for more than fifteen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 the applicant in the year 2004 to provide a different picture regarding the conditions of water and soil in the area. These experts submitted reports to demonstrate that now hardly any remediation measures are required in Bichhri village or adjoining areas. 30. The applicant in this application is seeking a declaration that as of now there is no pollution existing in the area which may have been caused by HACL and accordingly there is no necessity for this Court to sell the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 required to be done or not. It was suggested during the course of hearing that the remediation cost being sought to be recovered from the applicant is not some kind of a decree in which the applicant is a judgment debtor but is merely a cost which the applicant is being made liable to pay on the "Polluter Pays" principle and there is no necessity of payment if there is no pollution existing. Till date there is no working out as to how the cost of remediation has been worked out by NEERI whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal quality of the area was only Rs. 3 crores whereas in the report submitted in this Court the remediation cost was stated to be Rs. 37.385 crores. 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 officially prepared. Even the copy which was actually filed in this matter was without any supporting affidavit and the same was merely handed over to this Court at the time of hearing. The applicant made his own enquiry and was officially given the report of NEERI. After comparing the report made available to the applicant from the one filed in this matter it came to light that the report actually filed in this Court was not bearing any resemblance to the conclusion and findings mentioned in the actual report. 43. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plemented 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 the following direction inter-alia:- "We thought of having the complaints of the petitioner as to harassment, examined by an independent Commissioner to ascertain the bona fides of the action taken by the officers of the Pollution Control Board and also to fix their responsibility. But we thought that at this stage it would be appropriate to ask the learned Advocate-General, who appears for the State of Rajasthan, to have the matter examined at his instance and direct the Pollution Control Board to act more co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. (ii) That the State Board vide its letter dated 9.1.1989 refused consent application submitted by M/s. Silver Chemicals under the provisions of Section 25/26 of the Water Act as the unit was discharging trade effluent beyond the prescribed standard and without having installed a plant for the treatment of trade effluent. The State Board under the provisions of section 25(5) of the Water Act also imposed several conditions on the industry and informed it that failure to make compliance of the conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 4.8.1988 issued N.O.C. to respondent no.8 for adequacy of pollution control measures for Ferric Alum Plant. The respondent No.8, however, started manufacturing H-Acid and continued its operation till March, 1989. (iii) That the State Board vide letter dated 30.5.88 withdrew the NOC for the reason that respondent no.8 violated the conditions of the NOC. (iv) That the State Board vide its letter dated 30.5.89 also refused application filed by respondent no.8 for discharging trade effluent under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 alternative suggestions have been made. The said report has suggested the following four alternatives for clean up of soil: 7 Excavation and relocation in a capped landfill. 7 Ex-situ remediation (soil washing) 7 Phyto-remediation 7 Natural attenuation 4. That out of the aforesaid alternative technologies, the most suitable alternative with regard to the human habitation, plantation and vegetation etc., will have to be decided keeping in view the local conditions and priority requirement. This job will have to be don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 delivered on 13.2.1996. A Review Petition filed was also dismissed. Thereafter, a Curative Petition was filed and that was also dismissed on 18.7.2002. The applicant did not comply with the orders passed by this court even after dismissal of curative petition and has filed this application. 50. This application has been filed by respondent No. 4, Hindustan Agro Chemicals Limited. By this application respondent No. 4 sought an investigation into the reports of April, 1994 prepared by the NEERI, which was employed by the R.S.P.C.B. in September, 1992 to evaluate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 that for the purpose of undertaking the work relating to remedial measures for the National Productivity Council (NPC) may be appointed as the Project Management Consultants and on the basis of the feasibility report submitted by the NPC, tenders may be invited for entrusting the remedial work. It is also proposed that a High Level Advisory Committee would be constituted consisting of the representatives from (1) Ministry of Environment & Forests (2) National Productivity Council (3) Central Pollution Control Board (4) NEERI and (5) Rajasthan State Pollution Control Board to review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical v. Alka Kala and others and this court dismissed the contempt petition with the costs computed at Rs. 10,000/- while observing that there was no basis for contending that any of the respondents have been guilty of fabrication and the whole contempt application was 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 & Control of Pollution) Act, 1981 and discharging polluted trade effluent indiscriminately without providing any treatment so as to bring it in conformity to the prescribed standards. Discharge of this trade effluent by the respondent Nos. 4 to 8 resulted into severe pollution of underground water and of soil. For the above violation, the State Pollution Control Board filed a Criminal complaint No. 176/1999, under the provisions of Section 43 read with Sections 24 and 44 read with Sections 25/26 of the Water Act before the Court of Chief Judicial Magistrate, Udaipur. The learned Chief Judicial Magistrate, Udaipur by its o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inder 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 animal and was not even fit for irrigation. 59. This Court by its order dated 17.2.1992 further directed that the MOEF to inspect the area and ascertain about the existence and extent of Gypsum and Iron based sludge over there. In pursuance of the above directions, a team of experts of MOEF visited the site on 6.3.1992 and assessed the position in regard to storage of sludge collected from various sites and presence of sludge in the factory premises. Samples of water of wells around the factory were also collected for analysis. The Union of India in an affidavit filed before this court in pursuance of the said directions stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 of contaminated soil in the area. 2.2 As reported by the Rajasthan State Pollution Control Board (RSPCB) representatives, about 720 tonne out of the total contaminates soil and sludge scraped from the sludge dump sites id disposed in six lined entombed pits covered by lime/fly ash mix, brick soling and concrete (photographs 3 and 4). The remaining scrapped sludge and contaminated soil was lying near the entombed pits for want of additional disposal facility. However, during the visit, the left over sludge and contaminated soil could not be traced at site. Inspection of the surrounding area revealed that a huge heap of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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 has repeatedly found and has recorded in the orders that it is respondents who have caused the said damage. The analysis reports obtained pursuant to the directions of the court clearly establish that the pollution of the wells is on account of the wastes discharged by respondent Nos. 4 to 8 i.e. production of `H' Acid... ... ..." 66. In its reply the RSPCB further stated that the respondent Nos. 4 to 8 filed a Writ Petition No. 338/2000 challenging the judgment of this court dated 13.2.1996. This court dismissed the petition, by order dated 18.7.2002, having regard to the principles laid down in Rupa Ashok Hurra v. Ashok Hurra & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire 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 be placed in this lined pit and covered with water proof layering to such extent that no water can percolate through the stored sludge. The soil in the premises of the industry has also been contaminated by the disposal of liquid effluents as well as the sludge on the ground. The contaminated soil needs to be removed and the entire area should be revamped. All industrial activities going on in the premises should be stopped to enable the revamping process. 69. Mr. Shanti Bhushan and Mr. Prashant Bhushan, learned senior counsel in the written submissions filed by the respondent Nos. 4 to 8 have quoted this court's direction. The same is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) 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 of 1994 has been dealt with by this court while dismissing the contempt petition filed by the applicants against the R.S.P.C.B. Even the Curative Petition filed by the applicants was also dismissed by this court on 18.7.2002. 78. In the supplementary submissions it is also mentioned that through Interlocutory Application Nos. 36 and 44 the applicants are merely trying to evade paying the amounts to be paid as remedial measures by reopening issues already settled by this court. In the submissions Mr. Rohatagi has drawn our attention to para 66 of the said judgment regarding the applicant's liability, which reads as under: "66. Once the law in Oleum Gas Leak case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire 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 plants contrary to law, flouting all safety norms provided by law, the RSPCB was bound to act. On that account, it cannot be said to be acting out of animus or adopting a hostile attitude. Repeated and persistent violations call for repeated orders. That is no proof of hostility. Moreover, the reports of RSPCB officials are fully corroborated and affirmed by the reports of the Central team of experts and of NEERI. We are also not prepared to agree with Shri Bhat that since the report of NEERI was prepared at the instance of RSPCB, it is suspect." 83. It is further submitted in the supplementary submissions that in para 55 of the said judgment this court specifically held that Hindus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be with the NEERI but the original report when prepared would be one which was, ultimately, submitted to the sponsoring agency, namely the Rajasthan Pollution Control Board and it is only a copy of the same which could have been retained by the NEERI. Be that as it may, it is clear that what has been filed in this Court as being the final report of NEERI was the copy of the final report which was received by it. There is no basis for contending that any of the respondents have been guilty of fabrication. The whole application to our mind is without any merit." 87. It is further submitted in his supplementary submissions that this court in para 54 of its order dated 13.2.1996 had upheld the integrity of the reports submitted by the NEERI. Para 54 of order dated 13.2.1996 reads as under: "Moreover, the reports of RSPCB officials are fully corroborated and affirmed by the reports of the central team of experts and of the NEERI. We are also not prepared to agree with Shri Bhat that since the report of the NEERI was prepared at the instance of RSPCB, it is suspect. This criticism is not only unfair but is also uncharitable to the officials of NEERI who have no reason to be inimica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and 8.3.2007) showed that no aspersions can be cast on the NEERI report of 1994. Further, it would be incorrect to suggest that the remedial measures as imposed on the applicants were limited to neutralizing the presence of H-acid in the soil alone, in fact it is clear from the judgment of 1996 and subsequent reports that what has to be done is: a) removal of sludge which has also percolated down in the soil; and b) restoration of the area including perforce, making it possible for farmers and others to return to the natural uses of the affected land. 91. It is further submitted in the supplementary submissions of RSPCB that the Interlocutory Applications Nos. 36 and 44 are just another example of obstr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 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 reiterated in the submissions that these applications are blatant disregard towards complying with the directions of this court. They have made mockery with the environmental justice delivery system by filing these applications. They have shown no contrition for causing irreparable damage to the life, health and property of the people affected by their commercial activities. The applicants are trying to delay the payment of Rs. 37.385 crores for carrying out remedial measures. This court in para 70 of the judgment reported in Indian Council for Enviro-Legal Action (supra) observed as under: "On account of (the respondents) continuous, persistent and insolent violations of the law....and their non-implementation of the orders of this.... ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrounding 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 plantation, and such other measures which would be helpful to the environment of the area apart from paying damages to the people. 102. Mr. Mehta has further submitted that this court may impose upon the errant industries as exemplary punitive damages apart from the amount required for eco-restoration by way of remediation of the land, water and the environment. This may be considered in the light of the continuing public nuisance and suffering due to pollution, severely degraded environment, loss to the property, irreparable damage to the ecology and precious natural resources - land, air, aquifers, surface water, flora and fauna - for over twenty years since the original petition was filed. The implications of failing to remediate the affected land, wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aste 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 polluters contribute monies to enable clean-up of toxic sites. 107. In the written submissions filed by Mr. Mehta he has also mentioned about principle of accountability and it is the duty and obligation of the court to protect the fundamental rights of the citizens under Article 32 of the Indian constitution. Pollution and public nuisance resulting from mis-regulation infringes on the fundamental rights, including the right to life under Article 21 of the Indian constitution. Mr. Mehta also submitted that applicants are liable for causing continuous suffering to the people in Bichhri and surrounding villages. 108. Mr. Mehta also submitted in his written submissions that in several cases of environmental pollution the courts have ordered the payment of damages by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice. 116. In Manganese Ore (India) Ltd. v. The Regional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a decision on merits after it has become final cannot be questioned by invoking Article 32 of the Constitution. In the instant case the petitioner wants to reopen the case by filing the interlocutory application. 125. In Ajit Kumar Barat v. Secretary, Indian Tea Association & Others (2001) 5 SCC 42, the Court placed reliance on the judgment of a nine-judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra and another AIR 1967 SC 1 and the Court observed as under: "It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself.... In view of this decision in Mirajkar case it must be taken as concluded that judicial proceedings in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in The London Street Tramways Co. Ltd. v. London County Council (1898 AC 375) the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament. 26. ...This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be reopened and reheard: "There is a salutary maxim which ought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law." 42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. "We are faced with competing principles -- ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. To restrict filing of the curative petitions only in genuine cases, Rupa Ashok Hurra (supra) provided that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment." 131. In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi & Others (2009)10 SCC 501, this Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 judicial bias, the House of Lords held that there "is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal , (1852) 3 H.L. Cases 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category." Lord Goff of Chievely stated that "I wish to draw attention to the fact that there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 costs made by the erstwhile apex court, the House of Lords, on the grounds that the House of Lords had made a substantive error in the original adjudication. However, this appeal was lodged under Rule 53 of the The (U.K.) Supreme Court Rules, 2009, 2009 No. 1603 (L. 17). Rule 53 provides as follows: 53. (1) A party who is dissatisfied with the assessment of costs made at an oral hearing may apply for that decision to be reviewed by a single Justice and any application under this rule must be made in the appropriate form and be filed within 14 days of the decision. (2) The single Justice may (without an oral hearing) affirm the decision made on the assessment or may, where it appears appropriate, refer the matter to a panel of Justices to be decided with or without an oral hearing. (3) An application may be made under this rule only on a question of principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 litigation. The circumstances that will justify a rehearing must be quite exceptional. ..." 145. In Bailey v. Marinoff (1971) 125 CLR 529, Judge Gibbs of the High Court of Australia observed in a dissenting opinion: "It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. .. ....The rule tests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 the power of appellate courts to re-open and review their orders is to be exercised with great caution. The power, and the occasions for its exercise were considered in In Re Transferred Civil Servants (Ireland) Compensation (1929) AC 242, 248-52; and State Rail Authority NSW v Codelfa Construction Pty Ltd (1982) HCA 51 : (1982) 150 CLR 29, 38-9, 45-6, where earlier Privy Council cases are referred to. The principles were summarised in Smith v NSW Bar Association (1992) 176 CLR 252, 265 where the High Court of Australia said: "The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review ... these considerations may tend against the re-opening of a case, but they are not ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenced 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 to the said offences was upheld by this Court. We have heard learned counsel for the petitioners. The respondent State, though served with a notice through standing counsel, has not chosen to enter appearance. These Curative Petitions have been filed by accused No.2 (Raghubir) and by accused no.4 and 5 (Sughar Singh and Laxman) on the ground that acquittal of Bhoja, Raghubir, Puran and Balbir have been reversed without affording an opportunity of being heard. We see that there is serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this Court and the others were not heard. We are, therefore, constrained to recall the 3 judgment passed by this Court in Criminal Appeal Nos.1362-1363 of 2004 on 7th November, 2008. Consequently, the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport 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 the Ministry of Environment and Forests, Government of India has rightly made a demand for Rs. 37.385 crores." 161. The exact liability was quantified which the applicant- M/s Hindustan Agro Chemical Ltd. was under an obligation to pay. The liability to pay arose on that particular date i.e. 4.11.1997. In other words, this was in the lines of a final decree pursuant to a preliminary decree. 162. On that judgment being passed, the position of the applicant in Application No.44 was that of `judgment-debtor' and the applicant became liable to pay forthwith. 163. Admittedly, the amount has not been paid. Instead, that payment they sought to postpone by raising various challenges in this court and in the meantime `utilised' that money, i.e., benefitted. As a consequence, the non-applicants (respondents-states herein) were `deprived' of the use of that money for taking remedial measures. The challenge has now - nearly 14 years later - been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 172. Unjust enrichment is "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 defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) 173. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. 174. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus : "....(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 involves no violation or frustration of law or opposition to public policy, either directly or indirectly." 179. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined 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. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 180. While th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = [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 of Canada in Bank of America Canada vs Mutual Trust Co. [2002] 2 SCR 601 = 2002 SCC 43 (both Canadian Reports) took the view : "There seems in principle no reason why compound interest should not be awarded. Had prompt recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the plaintiff would have received interest on it at regular intervals and would have invested those sums also. By the same token the defendant will have had the benefit of compound interest. Although not historically available, compound interest is well suited to compensate a plaintiff for the interval between when damages initially arise and when they are finally paid." 187. This view seems to be correct and in consonance with the principles of equity and justice. 188. Another way of looking at it is suppose the judgment- debtor had borrowed the money from the nationalised bank as a clean loan and paid the money into this court. What would be the bank's demand. 189. In other words, if payment of an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by itself should not be permitted to confer an advantage on the party responsible for it. ..." 194. In Ram Krishna Verma and Others vs State of U.P. and Others (1992) 2 SCC 620 this court observed as under :- "The 50 operators including the appellants/ private operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeevan Nath Bahl's case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative. However, by sheer abuse of the process of law they are continuing to ply their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. vs Income-tax Officer - [1990] 2 SCC 191 held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint 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 decree is passed and to protect the property including further alienation." 197. In Padmawati vs Harijan Sewak Sangh - CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:- "The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, dismissed." Interest on interest 201. This court in Alok Shanker Pandey vs Union of India & Others (2007) 3 SCC 545 observed as under:- "We are of the opinion that there is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of the each case. We are of the opinion that the grant of interest of 12% per annum is appropriate in the facts of this particular case. However, we are also of the opinion that since interest was not granted to the appellant along with the principal amount the respondent should then in addition to the interest at the rate of 12% per annum also pay to appellant interest at the same rate on the aforesaid interest from the date of payment of instalments by the appellant to the respondent till the date of refund on this amount, and the entire amount mentioned above must be paid to the appellant within two months from the date of this judgment. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital." Compound Interest 202. To do complete justice, prevent wrongs, remove incentive for wrongdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awarded on claims at common law, it was not for the House of Lords to award compound interest in respect of such claims. But the Supreme Court Act 1981 does not specifically exclude the award of compound interest in respect of common law claims. Rather, it recognizes that the court can award simple interest for such claims. The equitable jurisdiction to award compound interest is still available in appropriate cases. In two very strong dissenting judgments, Lords Goff and Woolf rejected the argument of the majority. They asserted that, since the policy of the law of restitution was to remove benefits from the defendant, compound interest should be available in respect of all restitutionary claims, regardless of whether they arise at law or in equity. This argument can be illustrated by the following example. In the straightforward case where the claimant pays money to the defendant by mistake and defendant is liable to repay that money, the liability arises from the moment the money is received by the defendant, who has the use of it and so should pay the claimant for the value of that benefit. This was accepted by all the judges in the case. The difficulty relates to the valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult of the matter in the court and at the risk and costs of the party obtaining the stay. After the dismissal, of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection. 210. This court in South Eastern Coalfields Limited v. State of M.P. and others (2003) 8 SCC 648 on examining the principle of restitution in para 26 of the judgment observed as under: "In our opinion, the principle of restitution takes care of this submission. The word "restitution" in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P - (1984) Supp SCC 505) In law, the term "restitution" is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. ... ..." 214. In another recent judgment of this court in Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 this court in para 15 observed as under: "No litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, 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 situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years." 219. We reiterate that the finality of the judgment of the Apex Court has great sanctity and unless there are extremely compelling or exceptional circumstances, the judgments of the Apex Court should not be disturbed particularly in a case where review and curative petitions have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. 3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. 5. No litigant can derive benefit from the mere pendency of a case in a court of law. 6. A party cannot be allowed to take any benefit of his own wrongs. 7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. 8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts. 224. It may be pertinent to mention that even after dismissal of review petition and of the curative petition on 18.7.2002, the applicants (respondent Nos. 4 to 8) have been repeatedly filing one petition or the other in order to keep the litigation alive. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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