Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
CASE NO.:
Writ Petition (civil) 4677 of 1985
PETITIONER:
M.C. Mehta
In the Matter of M/s. Ashok Chhabra & Co.
RESPONDENT:
Union of India & Ors.
By its Sole Proprietor Ashok Chhabra
DATE OF JUDGMENT: 02/04/2003
BENCH:
Y.K. SABHARWAL & H.K. SEMA
JUDGMENT:
J U D G M E N T
With I.A. Nos. 47, 57 and letter No. Nil. Dt. 27.10.1998
SEMA,J
A contempt petition against the respondent Ashok Kumar Chhabra
arises pursuant to the show cause notice of contempt issued by this Court on
25th November, 1999 for willful violation of various orders passed by this
Court. The respondent was running hot mix plant industry located at
village Rangpuri, New Delhi. The hot mix plant was the subject
matter of consideration by an Expert Committee of Central Pollution Control
Board (CPCB) to determine the pollution and hazardous aspects of this
industry. On 13th March, 1996 this Court directed the CPCB to issue notices
to the hot mix plants located in Delhi as to why they be not relocated. The
Board issued notices to the Hot Mix Plants and after considering the
replies/objections filed by them, the Expert Committee of the Board arrived
at the following conclusion:
"The process emissions from Hot Mix Plants contain particulate
matter and sulphur dioxide besides Poly Aromatic
Hydrocarbons most of which are proven carcinogens.
Therefore, the Expert Committee of CPCB has categorised Hot
Mix Plants as hazardous industry (’Ha’ category). As per
Master Plan 2001, all hazardous/noxious industries should be
shifted out of the U.T. of Delhi."
Basing on the aforesaid report, this Court on 10th October, 1996 inter-
alia directed the 43 hot mix plants to stop functioning and operating in the
city of Delhi w.e.f. February 28, 1997. The directions are contained in
paragraph 4 of the order. For the purpose of disposal of this petition
direction nos. 1, 2 and 8 are relevant which read thus:
"(1) The above listed 43 Hot Mix Plants cannot be permitted to
operate and function in Delhi. These Hot Mix Plants may
relocate/shift themselves to any other industrial estate in the
NCR. We direct that the 43 Hot Mix Plants listed above shall
stop functioning and operating in the city of Delhi with effect
from February 28, 1997. These Hot Mix Plants shall close
down and stop functioning in Delhi with effect from the said
date.
(2) The concerned Deputy Commissioner of Police shall, as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
directed by us, effect the closure of the above Hot Mix Plants
with effect from February 28, 1997 and file compliance report
in this Court within 15 days thereafter.
(8) The closure order with effect from February 28, 1997 shall
be unconditional. Even if the re-location of Hot Mix Pants is
not complete they shall stop functioning in Delhi with effect
from February 28, 1997."
Undisputedly, the aforesaid directions were with regard to 43 hot mix
plants in which the unit of the respondent does not figure. Accordingly, the
order dated 10th October, 1996 was clarified by this Court on 5th December,
1997 in which the name of Ashok Kumar Chhabra’s unit has been included.
On noticing that the respondent’s unit has also been closed down which
required to be relocated outside Delhi, this Court also directed that the land
for relocation of 44 hot mix plants (including the respondent) shall be made
available by the State Government concerned within three months from
passing of the order. The draw of lots for the hot mix plants was held in the
office of the NCR Planning Board on 8.2.1998 at 4.00 p.m. pursuant to the
order passed by this Court on 16th January 1998. Master sheet including the
name of the parties and the sites allotted to them was annexed with the order
dated 12th February 1998 of the Chief Regional Planner, in which the
respondent - Ashok Kumar Chhabra has been allotted alternative site at
Dadri. The name of the respondent is shown at Sl.No.36 of the list.
Despite the order of closing down by this Court on 10th October, 1996,
as noticed above, and allotment of the alternative site, respondent was
continued operating his unit at Delhi culminating in the order dated 16th
May, 1997 passed by the Chairman, Delhi Pollution Control Committee,
under Section 31(A) of Air (Prevention and Control of Pollution) Act, 1981
(hereinafter referred to as ‘the Act’). In the said order sequence of events
has been noted. It has an important bearing for proper adjudication of the
case at hand and it is extracted in extenso.
"DELHI POLLUTION CONTROL COMMITTEE
DEPARTMENT OF ENVIRONMENT: GOVT. OF DELHI
4TH FLOOR, ISBT BLDG. KASHMERE GATE, DELHI 6.
No.F.12/G(041)/PCC III/96/790-805 Date:16/5/97
Sub: Directions u/s 31(A) of Air (Prevention and Control of
Pollution ) Act, 1981.
Whereas, the Central Pollution Control Board exercises
the powers and performs the functions under the Air
(Prevention & Control of Pollution) Act, 1981 as a State Board
for Union Territories;
Whereas the Central Pollution Control Board has
delegated all its powers and functions under the Air (Prevention
and Control of Pollution) Act, 1981 in respect of Union
Territory of Delhi to a committee known as Delhi Pollution
Control Committee vide notification No. S.O.198(E) dated
15.3.1991;
Whereas, the whole of the Union Territory of Delhi is
declared as an air pollution control area under sub-section (1) of
Section 19 of the Air (Prevention & Control of Pollution) Act,
1981 vide notification no. GSR 106(E) dated 20.2.1987;
Whereas, you M/s Ashok Kumar Chhabra Constructions
alias Sh. Ashok Kumar Chhabra, Civil Engineers and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
Contractors, Village Rangpuri, N.Delhi 110037 are operating
hot mix plant;
Whereas, the Hon’ble Supreme Court of India in the
matter of IA No. 22/94 in CWP No. 4677/85 have interalia
observed in their order dated 10.10.1996 that ’The Hot Mix
Plant’ having been categorised hazardous industries (Ha) under
the Master Plan 2001 have to be relocated’ and that these plants
’cannot operate in the city of Delhi;’
Whereas, all the 43 hot mix plants whose records were
placed before the Hon’ble Supreme Court in the
aforementioned matter by the Central Pollution Control Board,
were directed to stop functioning and operating in the city of
Delhi w.e.f. 28.2.97;
Whereas, you M/s Ashok Kumar Chabra Constructions
alias Sh. Ashok Kumar Chhabra, Civil Engineers &
Contractors, were issued notice No.12/6/641)/PCC
111/96/10223 dated 6.3.97 to show cause as to why the said hot
mix plant falling in H(a) category of Master Plan 2001 should
not be ordered to be closed down immediately;
Whereas, you have submitted a reply dated 15.3.97
pointing interalia that the order of the Hon’ble Supreme Court
referred to above does not include your name in the list of 43
hot-mix plants and thus that order is not binding on you; and
that your unit is neither hazardous nor air polluting;
Whereas, the hot-mix plants have been categorised in
H(a) category under the Master Plan 2001 as per order of
Hon’ble Supreme Court;
Whereas, the units falling under H(a) category cannot
operate in the city of Delhi as per Master Plan-2001;
And whereas, your unit was found operating by the
inspection team of Delhi Pollution Control Committee on
12.05.1997;
Now, therefore, in exercise of the powers conferred u/s
31(A) of the Air (Prevention and Control of Pollution) Act,
1981 and the rules made thereunder the competent authority in
Delhi Pollution Control Committee, after careful consideration
of your reply to the said show cause notice and all other
relevant records, hereby direct you M/s Ashok Kuma Chabra
Constructions alias Sh.Ashok Kumar Chhabra Engineer &
Contractors, Village Rangpuri, New Delhi-37 as follows:-
"That you M/s Ashok Kumar Chabra Construction alias
Shri Ashok Kumar Chhabra, Civil Engineers & Contractors
Village Rangpuri, New Delhi 37 shall stop functioning and
operating the hot mix plant in the city of Delhi with immediate
effect.
(D.S. NEGI)
CHAIRMAN, (DPCC)"
In consequence of order dated 16th May, 1997 the unit of the
respondent was also sealed by the order dated 10th December, 1997. The
order dated 16th May 1997 and 10th December 1997 were challenged by the
respondent before the Appellate Authority under Section 31 of the Act. The
same was dismissed by the Joint Secretary to the Government of India and
the Appellate Authority, Ministry of Environment and Forests, by its order
dated 20th March, 1998. The relevant portion reads:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
"The appeals were heard on 10.3.98. The arguments advanced
by the parties were heard at length and the material placed on
record was duly considered. It emerges that the hot mix plants
as a category of industry/activity was categorised as an activity
falling in ’H’ category as per the Master Plan of Delhi (MPD)
2001 and is to be relocated outside of NCT of Delhi with effect
from 1.3.1997. The Supreme Court has made no exception in
its order dated 10.10.1996 and directed the hot mix plants
closed/functioning and operating in the city of Delhi falling in
NCT to be closed and relocated/shifted to any other industrial
estates in NCR. There is no evidence of the Applicant having
been specifically declared as non-hazardous unit. The date
fixed by the Supreme Court for closure of hot mix plants of
Delhi has already expired on 28.2.1997. The Hon’ble Supreme
Court vide its order dated 5.12.1997 and 16.1.1998 has further
directed and made it clear that the Appellant unit be also
included for the allotment of site outside NCT of Delhi. The
National Capital Region Planning Board has already allotted
sites for the hot mix plant in compliance of the Supreme Court
order. The Appellant has been allocated site at Dadri. The
Appellant has committed a violation of Section 21 of the Air
(Prevention & Control of Pollution) Act, 1981 as it is
mandatory to obtain consent under the Air Act. The Appellant
had failed to comply with the directions of the DPCC. This
Authority, therefore, directs the unit to stop all its operation in
the National Capital Region of Delhi. The Supreme Court has
already directed closure of hot mix plants operating in the city
of Delhi including their relocation outside the city of Delhi in
any other industrial estates of NCR. M/s. Ashok Chhabra has
been allotted a fresh site in terms of the Hon’ble Supreme
Court’s order above mentioned. The Appellant’s hot mix plant
can not be allowed to be reopened. The submission of the
appellant made for vacating the order of sealing the appellant
unit, made by the Delhi Pollution Control Committee is also
rejected. The appeals are accordingly dismissed.
Ordered accordingly."
Aggrieved by the said order, the respondent preferred a Writ Petition
before the High Court of Delhi being CW No. 2319 & CM No.5759 of 1998.
The High Court of Delhi on 29th May, 1998 passed the following ad-interim
order:
"For what has been observed by me above, the operation of the
order sealing the premises is stayed till further orders. In case
any seal has been applied, the same shall be removed forthwith.
I am making it clear that this in no way would affect the order
of closure. Dasti also."
(Emphasis supplied)
At this stage, we may dispose of one argument of the respondent that
he was allowed to continue to run the unit on the strength of the order passed
by the High Court, which is belied by the order as noticed above.
When the pendency of the Writ Petition was brought to the notice of
this Court on 9th September 1999, this Court observed in paragraphs 2, 3 and
4 of its order as under:
"It is brought to our notice that M/s. Ashok Chhabra & Co. has
filed a Writ Petition in the High Court of Delhi which is
pending for hearing since 1998. Since the question of
desirability of not having Hot Mix Plants in Delhi City was in
seision of this Court and orders have been passed therein, we do
not know under what circumstances, the High Court has
entertained the Writ Petition.
Be that as it may, since the said writ petition is pending before
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
the High Court, the Chief Justice, High Court of Delhi is
requested to see that the writ petition in question is heard and
disposed of within two months from today. The order passed
by it be communicated to this Court. Put up this after two
months.
It is also further alleged that taking advantage of pendency of
the writ petition in the High Court, the said Company is
continuing to operate its Hot Mix Plants. In view of earlier
orders of this Court, we direct that the said Hot Mix Plants must
be closed down, if operating and appropriate steps must be
taken by the Delhi Pollution Control Board (DPCB) with
necessary help from the Delhi Police."
The respondent also filed C.W.No.2746 of 1997 in Delhi High Court
questioning the validity of various orders passed by the Competent
Authority, which was dismissed by the High Court on 2nd March, 1998.
The question now for consideration is whether the respondent
continued functioning of hot mix plant unit, which has been declared as
hazardous industry (Ha Category) by the Expert Committee. As noticed
above, in defiance of various orders passed by this Court and orders passed
by the competent authority, the respondent continued operating his unit.
The unit operated by the respondent is in perfect tandem and in line with the
categorisation of HMPs by the Expert Committee of C.P.C.B. pursuant to
which order dated 10th October, 1996 was passed by this Court holding the
HMPs as hazardous and noxious industries.
The respondent, in CWP NO. 2319/98 and CM No. 5759/98, had
admitted that he was still operating the factory. This is what the High Court
has noticed in its order dated 24th November 1998, which is as under:
"On query learned counsel for the petitioners states that the
petitioners are still operating the factory. From reading of the
order dated May 29, 1998 it appears that there is an order
passed by the Competent Authority directing closure of the
petitioner’s factory. In the circumstances, I am not allowing the
petitioners to withdraw the writ petition.
List the matter for hearing on November 26, 1998."
This Court issued contempt notice dated 25th November, 1999 to the
respondent. The notice reads:
"So far as the Delhi Hot Mix Plant Owners Association is
concerned, the grievance appears to have been settled by
allotting lands to it after closing down the Hot Mix Plants. But,
from the affidavits filed by the D.P.C.C. it appears that Messrs
Ashok Kumar Chhabra & Co., was continuing the business
notwithstanding the order of this Court and the fact that
alternative site has been allotted in its favour.
Issue notice to the Managing Director/Proprietor of
Ashok Kumar Chhabra & Co to appear in person to show cause
as to why he should not be duly punished for having
deliberately violated the Court’s orders regarding closing down
of the Hot Mix Plants.
Letter No. Nil of 27th October, 1998 be tagged on with
I.A. Nos. 47 and 57."
After issuance of show cause notice, the respondent filed I.A. No.
1203 with a prayer to recall and/or modify the order dated 9th September,
1999. He also filed a detailed reply on 6th March, 2000 to the show cause
notice. In paragraph 4 of the reply he denied that his unit was operational
when the DPCC carried out surprise inspection of the plant on 27/28th
September, 1999. He stated that the plant was operating in the earlier
periods pursuant to the orders of the Hon’ble High Court passed from time
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
to time. He also submits that he has not been in contempt of any order of
this Court in the matter of operating the plant. He also found fault with this
Court in passing the orders dated 9th September, 1999 and 25th November,
1999 without the complete facts being brought to the notice of this Court.
A cursory reading of paragraph 4 shows that he has not made any
specific denial with regard to the functioning of the plant. At the same time
his plea that the plant was operating in earlier periods pursuant to the order
of the High Court has been falsified by various orders of the High Court, as
noticed above. In paragraph 7 of the reply he has categorically stated that
he has not committed any contempt of the order of this Court. The reply in
paragraph 7 is interesting. It reads:
"I respectfully say that I have not committed any contempt of
the orders of this Hon’ble Court as alleged or otherwise. I say
that orders have been passed at the instance of interested
persons and at the behest of the D.P.C.C. which had by itself
removed the deponent’s plant from the list of hazardous
industry in proceedings before this Hon’ble Court. I state that
the D.P.C.C. has been taking different stands from time to time
in the different proceedings in the matter of the hot mix plant of
the deponent for ulterior motives and to create self-serving
evidence."
The statement made in paragraph 7 is all the more contemptuous. He
is not only defending his action but to say that all the orders passed by this
Court were at the behest of D.P.C.C. and not in public interest is by itself
contumacious. Reading the entire paragraphs of the reply, it is in the tone of
defiant posture. There is not even a whisper of the apology, muchless
unconditional apology, not to speak of remorse and contrition.
In contrast of what has been stated in reply to contempt notice, in the
rejoinder affidavit filed by him dated 31st January, 1998 in CM No. 10898 in
CWP No. 2746 of 1998, before the High Court, he has stated in clause V
thus:
"The petitioners have executed Government contracts
for Rs.360.42 lacs and are still having orders for execution of
work from Government, Governmental agencies for a sum of
Rs.228.00 lacs. Apart from this the petitioners have been found
first lowest in various tenders quoted by the petitioners
approximately for a sum of Rs. 200 lacs which are also likely to
be awarded to the petitioners within the validity period of 3 to 6
months from the date of opening of tenders.."
In paragraph 5 it is stated as follows:
"Till date, petitioner has completed various works and is
placing on record as Annexure ’A’ documents to show that
petitioner’s unit is functional and is in operation even till today.
It has not been closed down as has been falsely submitted
before Hon’ble Supreme Court of India. It may be submitted
that petitioners are operating their plant from ’Rangpuri Pahar’
which neither reserved forest area nor residential area. "
In paragraph 11 it is stated as under:
"It is submitted that petitioner’s unit was never closed down
execution of contract award by various Governmental Agencies
during night time from 9 p.m. to 8 a.m. as permission from
Deputy Commissioner of Police (Traffic) was not given to the
petitioner due to heavy flow of the traffic on roads during day
time."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
The respondent-contemner, in his own admission, has continued the
functioning of the plant which is treated to be as hazardous and noxious
industry in total disregard and consistent defiance of the orders passed by
this Court with impunity. Mr. Kailash Vasdev, learned Senior counsel’s
contention, that in the order of 10th October, 1996 the unit of the contemner
is excluded inasmuch as the said order covered only 43 hot mix plants and as
such the respondent has not committed any contempt, deserves out-right
rejection. Firstly, the order dated 10th October, 1996 is of general direction
ordering the closer of all industries (HMP) which are hazardous and noxious
industries. As already noticed, the plant of the respondent is one of such
units, which has been categorized as hazardous and noxious industry by
Expert Committee. Secondly, this Court by the order dated 5th December,
1997 included the hot mix plant of the contemner and directed the State
government concerned to make available the land for relocation of 44 hot
mix plants within three months of the passing of the order. Consequent
upon the orders of 5th December, 1997 and 16th January, 1998, the draw of
lots was held on 8th February, 1998 at 4.00 p.m. in the office of NCR Board
and the respondent had been allotted an alternative site at Dadri. His name
appeared at Sl.No.36 of the list.
In the facts and circumstances as adumbrated above and taking into
account the entire course of conduct of the contemner, it is apparent that the
contemner was taking the Court for a ride by raiding one Court or the other
deliberately with oblique motive to circumvent the Court’s orders thereby
salvaging himself by feigning ignorance of this Court’s order which was in
the knowledge of the contemner.
APOLOGY TENDERED BY THE RESPONDENT
It is significant to note that in reply to the contempt notice dated 25th
November, 1999, a detailed reply was filed by the respondent on 6th March,
2000. No apology, muchless unconditional apology, was tendered by the
respondent. In fact, as already noticed the respondent defended his action
and also found fault with the orders passed by this Court on 10th October,
1996 and 9th September, 1999. The last affidavit filed by the respondent was
on 28th January, 2003. In paragraph 6 of the said affidavit the respondent-
contemner categorically stated that he has not committed any contempt of
any order passed by this Court. This is what he has stated in para 6:
"I most respectfully state that I have not committed any
contempt of any Order passed by this Hon’ble Court. I state
that no order passed by this Hon’ble Court prior to 9.9.1999
was available to me and I was not a party to this proceeding in
this Hon’ble Court. Further I state that to my knowledge no
alternative land had been allotted to me."
In the background of the facts, as noticed above, the statement of the
contemner in paragraph 6 of the affidavit is false to the knowledge of the
contemner. Filing false affidavit/statement has been held to be Criminal
Contempt. [See Murray & Co. v. Ashok Kr. Newatia & Anr. (2000) 2
SCC 367; Bank of India v. Vijay Transport and Ors. (2000) 8 SCC 512;
and Dhananjay Sharma v. State of Haryana & Ors. (1995) 3 SCC 757.]
However, in paragraph 9 of the said affidavit the respondent tendered
apology, which is as under:
"I tender an unconditional and unqualified apology to this
Hon’ble Court for any of my actions which might be deemed to
be in contempt of the orders of this Hon’ble Court and pray that
the said apology be accepted. I state that I hold this Hon’ble
Court in highest esteem and have no intention whatsoever to be
in breach of any order passed by this Hon’ble Court. I most
respectfully pray that this Hon’ble Court may be pleased to
recall the notice to show cause as to why proceedings for
alleged contempt of Court issued to me and the said proceeding
be dropped."
The conduct of the contemner, as recited above, is beyond condonable
limit. It is now well-settled principle that an apology is not a weapon of
defence to purge the guilt of the contemner. At the same time, the apology
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
must be sought at the earliest opportunity. The apology tendered by the
respondent is at a belated stage to escape punishment of the Court.
Furthermore, as already noticed, in paragraph 6 of the affidavit he has stated
that he has not committed any contempt and defended his action. In
paragraph 9 of the affidavit, as quoted above, though it is stated that he
tenders unconditional apology, it is not really so, as in paragraph 6 of the
affidavit he has defended his action. Therefore, the apology so tendered by
the contemner is not a product of remorse or contrition.
In Delhi Development Authority vs. Skipper Construction,
(1995) 3 SCC 507 at page 523 it was pointed out as under:
"In considering whether the action of the contemners
amounted to contempt of court we take into account the entire
course of conduct of the contemners. As our order dated
25.1.1995 would disclose, the contemners have indulged in
judicial adventurism by raiding one court or the other. Each of
such raids is a clear abuse of process of court calculated to
obstruct the due course of judicial proceeding and the
administration of justice. Thus, we conclude that the
contemners are guilty of contempt of court. No doubt, the
contemners have tendered apology. This apology is coming
forth after sensing that the adventures have turned out to be
misadventures, realising that the contemners have ended up in a
cul-de-sac. An apology is not a weapon of defence forged to
purge the guilt of the offences nor is it intended to operate as a
panacea. It is intended to be evidence of real contriteness, the
manly consciousness of a wrong done, of an injury inflicted,
and the earnest desire to make such reparation as lies in the
wrongdoer’s power. We do not find the apology to be so in this
case. The conduct of contemners is highly reprehensible."
In the facts and circumstances aforesaid, we reject the apology
tendered by the contemner and hold that Ashok Kumar Chhabra is guilty of
contempt of Court.
This takes us to consider the quantum of punishment. In the last
affidavit filed, the contemner has stated that he is 53 years old. The
gravamen of contemptuous act of the respondent is of superlative dimension
as this relates to the violation of not only the Court’s orders but also of the
Air (Prevention and Control of Pollution) Act, 1981. The pollution of air is
causing deleterious affect on the health of the entire society. We have also
considered the larger interest of the society and orders passed by this Court
for the interest of the society at large. Liberty of an individual which is so
dear to every citizen of this country must necessarily be balanced with his
duties and obligations towards his fellow citizens. Every citizen of this
country has freedom to breathe unpolluted air. In air pollution related
matter or in any matter relating to environmental hazard, if the orders of the
highest court are disobeyed as sought to be done in this case, the health
hazard of the entire society is at great risk. We are, therefore, convinced to
send strong signal by imposing exemplary punishment so that like minded
people would not repeat and such recurrence is thwarted. Keeping this
background in mind, we are of the view, that the ends of justice would be
served, if the contemner is sentenced to one-week simple imprisonment. We
order accordingly. In addition, he is saddled with costs, which we quantify
at Rs.one lakh. The costs shall be deposited in the Registry of this Court
within two weeks from today and on the costs being deposited, the Registry
shall pay 50 per cent to Delhi Pollution Control Board and 50 per cent to
Mr. Ranjit Kumar, amicus curiae, who assisted the Court.
The petitions are disposed of in the above terms.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9