WITH
WRIT PETITION (CRL) NO. 592 OF 1987

J U D G M E N T

DR. ANAND, J.

The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and India express dated 17th August, 1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the new items submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for attrocities and death caused in police custody and to provide for accountability of the efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and “flourishes”. It was requested that the letter alongwith the new items be treated as a writ petition under “public interest litigation” category.

Considering the importance of the issue raised in the letter being concerned by frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents.

In response to the notice, the State of West Bengal filed a counter. It was maintained that the police was no hushing up any matter of lock-up death and that whereever police personnel were found to be responsible for such death, action was being initiated against them. The respondents characterised the writ petition as misconceived, misleading and untenable in law.

While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon’ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed alongwith the writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the following order :

“In almost every states there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issues notices to all the State Governments to find out whether they are desire to say anything in the matter. Let notices issue to all the State Governments. Let notice also issue to the Law Commission of India with a request that suitable suggestions may be returnable in two months from today.”

In response to the notice, affidavits have been filed on behalf of the States of West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Harayana, Tamil Nadu, Meghalaya , Maharashtra and Manipur. Affidavits have also been filed on behalf of Union Territory of Chandigarh and the Law Commission of India.
During the course of hearing of the writ petitions, the Court felt necessity of having assistance from the Bar and Dr. A.M. Singhvi, senior advocate was requested to assist the Court as amicus curiae.

Learned counsel appearing for different States and Dr. Singhvi, as a friend of the court. presented the case ably and though the effort on the part of the States initially was to show that “everything was well” within their respective States, learned counsel for the parties, as was expected of them in view of the importance of the issue involved, rose above their respective briefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to minimise, if not prevent, custodial violence and kith and kin of those who die in custody on account of torture.

The Law Commission of India also in response to the notice issued by this Court forwarded a copy of the 113th Report regarding “injuries in police custody and suggested incorporation of Section 114-B in the India Evidence Act.”

The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society.

These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.

“Torture” has not been defined in Constitution or in other penal laws. ’Torture’ of a human being by another human being is essentially an instrument to impose the will of the ’strong’ over the ’weak’ by suffering. The word torture today has become synonymous wit the darker side of human civilisation.

“Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is not way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”

Adriana P. Bartow No violation of any one of the human rights has been the subject of so many Conventions and Declarations as ’torture’- all aiming at total banning of it in all forms, but inspite of the commitments made to eliminate torture, the fact remains that torture is more widespread not that ever before, “Custodial torture” is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality. IT is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast.
In all custodial crimes that is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.
“Custodial violence” and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1984, which market the emergency of worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that “No one shall be subjected to torture or to curel, inhuman or degrading treatment or punishment.” Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.

In England, torture was once regarded as a normal practice to ger information regarding the crime, the accomplices and the case property or to extract confessions, but with the development of common law and more radical ideas imbibing human though and approach, such inhuman practices were initially discouraged and eventually almost done away with , certain aberrations here and there notwithstanding. The police powers of arrest, detention and interrogation in England were examined in depth by Sir Cyril Philips Committee- ’Report of a Royal Commission on Criminal Procedure’ (command – Paper 8092 of 1981). The report of the Royal Commission is, instructive. In regard to the power of arrest, the Report recommended that the power to arrest without a warrant must be related to and limited by the object to be served by the arrest, namely, to prevent the suspect from destroying evidence or interfering with witnesses or warning accomplices who have not yet been arrested or where there is a good reason to suspect the repetition of the offence and not to every case irrespective of the object sought to be achieved.

The Royal Commission suggested certain restrictions on the power of arrest on the basis of the ‘necessity principle’. The Royal commission said :

“…. We recommend that detention upon arrest for a offence should continue only on one or more of the following criteria :

(a) the person‘s‘s unwillingness to identify himself so that summons may be served upon him;

(b) the need to prevent the continuation or repetition of that offence;

(c) the need to protect the arrested person‘s himself or other persons or property;

(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and

(e) the likelihood of the person‘s failing to appear at court to answer anycharge made against him.” The Royal Commission also suggested:

“To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be finger printed or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case. ”

The power of arrest, interrogation and detention has now been streamlined in England on the basis of the suggestions made by the Royal Commission and incorporated in police and Criminal Evidence Act, 1984 and the incidence of custodial violence has been minimised there to a very great extent.

Fundamental rights occupy a place of pride in the India Constitution. Article 21 provides “no person shall be deprived of his life or personal liberty expect according to procedure established by law”. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression “life of personal liberty” has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and the shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguard provided to a person with a view to protect his personal liberty against and unjustified assault by the State, In tune with the constitutional guarantee a number statutory provisions also seek to project personal liberty, dignity and basic human rights of the citizens. Chapter V. of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguard which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes Clause (2) of Article 22 of the Constituion of India. There are some other provisions also like Section 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold and enquiry into the cause of death.

However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder.

The Third Report of the National Police Commission in India expressed its deep concern with custodial demoralising effect with custodial torture was creating on the society as a whole. It made some very useful suggestions. It suggested:

“…….An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:-

(1) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines. ”

The recommendations of the Police Commission (supra) reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. These recommendations, however, have not acquired any statutory status so far.

This Court in Joginder Kumar Vs. State [1994 (4) SCC, 260] (to which one of us, namely, Anand, J. was a party) considered the dynamics of misuse of police power of arrest and opined :

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another…No. arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying person his liberty is a serious matter.”

Joginder Kumar’s case (supra) involved arrest of a practising lawyer who had bee called to the police station in connection with a case under inquiry on 7.1.94. On not receiving any satisfactory account of his whereabouts, the family member of the detained lawyer preferred a petition in the nature of habeas corpus before this Court on 11.1.94 and in compliance with the notice, the lawyer was produced on 14.1.94 before this court the police version was that during 7.1.94 and 14.1.94 the lawyer was not in detention at all but was only assisting the police to detect some cases. The detenue asserted otherwise. This Court was not satisfied with the police version. It was noticed that though as on that day the relief in habeas corpus petition could not be granted but the questions whether there had been any need to detain the lawyer for 5 days and if at all he was not in detention then why was this Court not informed. Were important questions which required an answer. Besides, if there was detention for 5 days, for what reason was he detained. The Court’ therefore, directed the District Judge, Ghaziabad to make a detailed enquiry and submit his report within 4 weeks. The Court voiced its concern regarding complaints of violations of human rights during and after arrest. It said:

“The horizon of human rights is expanding. at the same time, the crime rate is also increasing, Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
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A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations weighing and balancing the rights, liberties and privileges of he single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding with comes first-the criminal or society, the law violator or the abider. ”

This Court then set down certain procedural “requirements” in cases of arrest. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that tp happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic ’No’. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.

In Neelabati Bahera Vs. State of Orissa [1993 (2) SCC, 746], (to which Anand, J. was a party) this Court pointed out that prisoners and detenues are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. It was observed :

“It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and its is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen o life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, expect according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law.

Instances have come to out notice were the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrest person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. The torture and injury caused on the body of the arrestee has sometime resulted into his death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock-up where generally torture or injury is caused is away from the public gaze and the witnesses are either police men or co- prisoners who are highly reluctant to appear as prosecution witness due to fear of letaliation by the superior officers of the police. It is often seen that when a complaint is made against torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are incharge of police station records which they do not find difficult to manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. [ 1995 (3) Scale, 343 =] is an apt case illustrative of the observations made by us above. In that case, Nathu Bnjara was tortured at police station, Rampura during the interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The defence set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10.30 p.m. after interrogation 13.10.1986 itself vide entry EX. P/22A in the Roznamcha and that at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the police station, Rampura, at the instance of Ramesh respondent No. 6, to the effect that he had found “one unknown person” near a tree by the side of the tank riggling with pain in his chest and that as a soon as respondent No. 6 reached near him, the said person died. The further case set up by SI Trivedi, respondent No. 1, incharge of the police station was that after making a Roznamcha entry at 7.00 a.m. about his departure from the police station he (respondent No. 1- Shyamsunder Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for conducting investigation under Section 174 Cr.P.C. He summoned Ramesh Chandra and Goverdhan respondents to the spot and in their presence prepared a panchnama EX. P/27 of the dead body recording the opinion therein to the effect that no definite cause of death was known.

The First Additional Sessions Judge acquitted all the respondents of all the charges holding that there was no direct evidence to connect the respondents with the crime. The State of Madhya Pradesh went up in appeal against the order of acquittal and the High Court maintained the acquittal of respondents 2 to 7 but set aside the acquittal of respondent No. 1, Shyamsunder Trivedi for offences under Section 218, 201 and 342 IPC. His acquittal for the offences under Section 302/149 and 147 IPC was, however, maintained. The State filed an appeal in this court by special leave. This Court found that the following circumstances have been established by the prosecution beyond every reasonable doubt and coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 those circumstances were consistent only with the hypothesis of the quilt of the respondents and were inconsistent with their innocence:

(a) that the deceased had been brought alive to the police station ad was last seen alive there on 13.10.81;

(b) That the dead body of the deceased was taken out of the police station on 14.1.81 at about 2 p.m. for being removed to the hospital;

(c) that SI Trivedi respondent No. 1, Ram Naresh shukla, Respondent No. 3, Raja Ram, respondent No. 4 and Ganiuddin respondent No. 5 were present at the police station and had all joined hands to dispose of the dead body of Nathu-Banjara:

(d) That SI Trivedi, respondent No. 1 created false evidence and fabricated false clues in the shape of documentary evidence with a view to screen the offence and for that matter, the offender:

(e) SI Trivedi respondent in connivance with some of his subordinates, respondents herein had taken steps to cremate the dead body in haste describing the deceased as a ’lavaris’ though the identity of the deceased, when they had interrogated for a sufficient long time was well known to them. and opined that:

“The observations of the High Court that the presence and participation of these respondents in the crime is doubtful are not borne out from the evidence on the record and appear to be an unrealistic over simplification of the tell tale circumstances established by the prosecution.”
One of us (namely, Anand, J.) speaking for the Court went on to observe :

“The trial court and the High Court, if we may say so with respect, exhibited a total lack of sensitivity and a ’could not careless’ attitude in appreciating the evidence on the record and thereby condoning the barbarous there degree methods which are still being used, at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them if an odd prisoner dies in the lock-up, because there would hardly be and evidence available to the prosecution to directly implicate them with the torture. The Courts, must not loose sight of the fact that death in police custody is perhaps on of the worst kind of crime in a a civilised society, governed by the rule of law and poses a serious thereat to an orderly civilised society.”
This Court then suggested :

“The Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the case of custodial crime so that as far as possible within their powers, the guilty should not escape so that the victim of crime has the satisfaction that ultimately the Majesty of Law has prevailed.”
The State appeal was allowed and the acquittal of respondents 1, 3, 4 and 5 was set aside. The respondents were convicted for various offences including the offence under Section 304 Part II/34 IPC and sentenced to various terms of imprisonment and fine ranging from Rs. 20,000/- to Rs.. 50,000/-. The fine was directed to be paid to the heirs of Nathu Banjara by way of compensation. It was further directed :

“The Trial Court shall ensure, in case the fine is deposited by the accused respondents, that the payment of the same is made to the heirs of deceased Nathu Banjara, and the Court shall take all such precautions as are necessary to see that the money is not allowed to fall into wrong hands and is utilised for the benefit of the members of the family of the deceased Nathu Banjara, and if found practical by deposit in nationalised Bank or post office on such terms as the Trial Court may in consultation with the heirs for the deceased consider fit and proper.”

It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. It was considering these aspects that the Law Commission in its 113th Report recommended the insertion of Section 114B in the Indian Evidence Act. The Law Commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having the custody of the person during that period. The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody statement made by the victim, medical evidence and the evidence with the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In sham Sunder Trivedi’s case (supra) this Court also expressed the hope that the Government and the legislature would give serious thought to the recommendation of the Law Commission. Unfortunately, the suggested amendment, has not been incorporated in the statute so far. The need of amendment requires no emphasis – sharp rise i custodial violence, torture and death in custody, justifies the urgency for the amendment and we invite Parliament’s attention to it.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of a an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with that view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purpose full to make the investigation effective. By torturing a person and using their degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No. society can permit it.

How do we check the abuse of police power? Transparency of action and accountability perhaps are tow possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.

Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Costal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A.W, Central Bureau of Investigation (CBI) , CID, Tariff Police, Mounted Police and ITBP which have the power to detain a person and to interrogated him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act. Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well, In re Death of Sawinder Singh Grover [1995 Supp (4) SCC, 450], (to which Kuldip Singh, j. was a party) this Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceeding against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay sum of Rs. 2 lacs to the widow of the deceased by was of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need.

There is one other aspect also which needs out consideration, We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals, Many hard core criminals like extremist, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay to much of emphasis on protection of their fundamental rights and human rights such criminals may go scot-free without exposing any element or iota or criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself.

The response of the American supreme Court to such an issue in Miranda Vs. Arizona, 384 US 436 is instructive. The Court said :
“A recurrent argument, made in these cases is that society’s need for interrogation out-weighs the privilege. This argument is not unfamiliar to this Court. See. e.g. Chambers v. Florida, 309 US 227, 240-41, 84 L ed 716, 724, 60 S Ct 472 (1940). The whose thrust of out foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of Government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. ”
(Emphasis ours)

There can be no gain saying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. The latin maxim salus populi est supreme lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist an dare not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ’right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated – indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eleminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met wit innovative ideas and approach. State terrorism is not answer to combat terrorism. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to ’terrorism’. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. that the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of this human rights expect in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.

In addition to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest on witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in The memo which must also be counter signed by The arrestee.

We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every Stare/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in out opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.

PUNITIVE MEASURESUBI JUS IBI REMEDIUM – There is no wrong without a remedy. The law will that in every case where man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.

Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

Article 9(5) of the International convent on civil and Political Rights, 1966 (ICCPR) provides that “anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation”. of course, the Government of India as the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become party to the Convent. That reservation, however, has now lost its relevance in view of the law laid down by this Court in number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudal Shah Vs. State of Bihar [ 1983 (4) SCC, 141 ]: Sebastian M. Hongrey Vs. Union of India [ 1984 (3) SCC, 339] and 1984 (3) SCC, 82]; Bhim Singh Vs State of J & K [1984 (Supp) SCC, 504 and 1985 (4) SCC, 677] Saheli Vs. Commissioner of Police. Delhi [1990 (1) SCC 422]}.

There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right o compensation in cases of established unconstitutional deprivation of person liberty or life. [See : Nilabati Bahara Vs. State (Supra)] Till about tow decades ago the liability of the government for tortious act of its public servants as generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious act of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera Vs. State (supra) the decision of this Court in Kasturi Lal Ralia Ram Jain Vs. State of U.P. [1965 (1) SCR, 375] wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus:

“In this Context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State’s plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this court in Rudul Sah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy upon Articles 32 and 226 of the Constitution, On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of government Servants, the claim being of damages of the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal is, therefore, inapplicable in this context and distinguishable.”

The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitutions is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the court and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damage is a long drawn and cumber some judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim. Who may have been the bread winner of the family.

In Nilabati Bahera’s case (supra), it was held: “Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the constitution cannot be told that for the established violation of the fundamental right to life he cannot get any relief under the public law by the courts exercising Writ jurisdiction, The primary source of the public law proceedings stems from the prerogative writs and the courts have therefore, to evolve ’ new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title “freedom under the Law” Lord Denning in his own style warned :

No one ca suppose that the executive will never be guilty the of the sins that are common to all of us. Your may be sure that they will sometimes to things which they ought to do : and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, out procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning or freedom in the new age. They must be replaced by new and up-to date machinery by declarations, injunctions and actions for negligence… This is not the task of Parliament… the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state : but abused they lead to a totalitarian state. None such must ever be allowed in this country.”

A similar approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy for the infringement of those rights. That has, however, not prevented the Court in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself.

The informative and educative observations of O’ Dalaigh CJ in The State (At the Prosecution of Quinn) v. Ryan [1965] IR 70 (122) deserve special notice. The Learned Chief Justice said:

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substances were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought of circumvent them, and that the Court’s powers in this regard are as ample as the defence of the Constitution require.”

(Emphasis supplied)

In Byrne v. Ireland [1972] IR 241, Walsh J opined at p264:

“In several parts in the Constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed toe have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State. It is against the State that the remedy must be sought it there has been a failure to discharge the constitutional obligation impose”
(Emphasis supplied)

In Maharaj Vs. Attorney General of Trinidad and Tobago [(1978) 2 All E.R. 670]. The Privy Council while interpreting Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein, it permitted an order for monetary compensation, by way of ’redress’ for contravention of the basic human rights and fundamental freedoms. Lord Diplock speaking for the majority said:

“It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney General of Guyana. Reliance was placed on the reference in the sub- section to ’enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections’ as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships’ view of order for payment of compensation when a right protected under Section 1 ’has been’ contravened is clearly a form of ’redress’ which a person is entitled to claim under Section 6(1) and may well be any only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by para (a) of Section 6(2), viz. jurisdiction ’to here and determine any application made by any person in pursuance of sub-section (1) of this section’. The very wide power to make orders, issue writs and give directions are ancillary to this.”

Lord diplock then went on to observe ( at page 680) : “Finally, their Lordships would say something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant’s constitutional rights consists of deprivation of liberty otherwise that by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. IT is a claim in public law for compensation for deprivation of liberty alone.”

In Simpson was, Attorney General [ Baigent’s case ] (1994 NZLR, 667) the Court of Appeal in NewZealand dealt with the issue in a very elaborate manner by reference to a catena of authorities from different jurisdictions. It considered the applicability of the doctrine of vicarious liability for torts, like unlawful search, committed by the police officials which violate the New Zealand Bill of Rights Act, 1990. While dealing with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for which no specific remedy was provided. Hardie Boys, J. observed :

“The New Zealand Bill of Rights Act, unless it is to be no more that an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will observe the rights hat the Bill affirms. it is I consider implicit in that commitment, indeed essential to its worth, that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate ad effective remedies where rights have been infringed. I see no reason to think that this should depend on the terms of a written constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their protection the obligation of every civilised state. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared. the reasoning that has led the Privy Council and the Courts of Ireland and India to the conclusions reached in the cases to which I have referred (and they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and meaning.” (Emphasis supplied)

The Court of appeal relied upon the judgment of the Irish Courts, the Privy Council and referred to the law laid down in Nilabati Behera Vs. State (supra) thus:

“Another valuable authority comes from India, Where the constitution empowers the Supreme Court to enforce rights guaranteed under it. In Nilabati Bahera V. State of Orissa (1993) Cri. LJ 2899, the Supreme Court awarded damages against the Stare to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to “forge new tools”, of which compensation was an appropriate on where that was the only mode of redress available. This Was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. These observations of Anand, J. at P 2912 may be noted.

The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. The purpose of public law is not only to civilize public that they live under a legal system which aims to protect their interest and preserve their rights.”

Each the five members of the Court of Appeal in Simpson’s case (supra) delivered a separate judgment but there was unanimity of opinion regarding the grant of pecuniary compensation to the victim, for the contravention of his rights guaranteed under the Bill of Rights Act, notwithstanding the absence of an express provision in that behalf in the Bill of Rights Act.

Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will. of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under he public law jurisdiction is, in addition to the traditional remedies and not it derrogation of them. The amount of compensation as awarded by the Court and paid by the State to redress The wrong done, may in a given case , be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

Before parting with this judgment we wish to place on record our appreciation for the learned counsel appearing for the States in general and Dr. A.M. Singhvi, learned senior counsel who assisted the Court amicus curiae in particular for the valuable assistances rendered by them.

The post Shri D.K. Basu,Ashok K. Johri Vs. State of West Bengal,State of U.P appeared first on B&B Associates LLP.

J U D G M E N T

S. SAGHIR AHMAD

“Similia Similibus Curantur” (Like Cures Like) is the basis of a system of therapeutics known popularly as Homoeopathy. It is based on the premise that most effective way to treat disease is to use drugs or other agents that produce the symptoms of the disease in healthy persons. This theory had its origin in or about 460 B.C. when the Greek physician, Hippocrates, noted the similarity between the effect of some drugs and the symptoms of the diseases they seemed to relieve. It was, however, in the late 18th Cantury that this theory was tested and popularised by German Physician, Christian Friedrich Samuel Hahnemann as a new form of therapeutic treatment after six years test study of scores of drugs on himself and others. Ultimately, in 1796, he published his findings in a leading Medical journal under the caption “On a New Principle for Ascertaining the Curative Power of Drugs which set in motion a process of continued research in all directions including its Pharmacology with the result that Homoeopathy is taught today as a positive science in various Medical Colleges all over the country.

2. Respondent No. 1 pursued a 4 years’ course in Homoeopathic Medicine and Surgery and after being declared successful in the Examination conducted by the Homoeopathic Medical College, Anand, Gujarat, he was awarded a Diploma in Homoeopathic Medicine and Surgery on the basis of which he was registered as a Medical Practitioner in 1983. Initially, he joined a private nursing home at Bombay where he worked, as he claims, as Chief Medical Officer from 1983 till he opened his own private clinic in 1989 and took up private practice.

3. Pramod Verma, husband of the appellant, was Sales Manager in M/s Encore Marketing P. Ltd. where the last salary drawn by him is said to be Rs.5,700/- out of which he maintained his family comprising of himself, his wife and two children besides supporting the aged parents.

4. On 4th of July, 1992, Pramod Verma, who complained of fever was examined at his residence by Respondent No.1 (Dr. Ashwin Patel) who kept him on allopathic drugs for viral fever up to 6th July, 1992 and, thereafter, for typhoid fever. When condition of Pramod Verma deteriorated, he was shifted to Sanjeevani Maternity and General Nursing Home of Dr. Rajeev Warty (Respondent No.2) as an indoor patient on 12th July, 1992. This was done on the advice of Respondent No. 1. Verma received treatment there till the evening of 14th July, 1992 when he was transferred to the Hinduja Hospital in an unconscious state where, after about four and a half hour of admission, he died.

5. Appellant, thereafter, filed (on 14.8.92) Original Petition No. 184 of 1992 before the National Consumer Disputes Redressal Commission (for short, ’commission’), at New Delhi praying for compensation and damages being awarded to her by Respondents 1 and 2 for their negligence and carelessness in treating her husband (Pramod Verma) but the Commission by its judgment and order dated 8.11.1994 dismissed the petition. It is this judgment which is challenged in this appeal.

6. It appears that in the claim lodged before the Commission it was set out by the appellant that Respondent No. 1 was negligent in administering strong antibiotics to Pramod Verma initially for the treatment of Viral Fever and subsequently for Typhoid Fever without confirming the diagnosis by Blood Test or Urine Examination. It was also set out that Respondent No. 1 was not qualified or even authorised to practise in Allopathic System of Medicine and prescribe allopathic drugs and, therefore, his lack of expertise in the Allopathic System of Medicine was responsible for deficiency in the treatment administered by him.

7. Negligence imputed to Respondent No. 2 is that Pramod Verma, immediately on his admission in the Nursing Home, was put on intravenous Glucose (Dextrose) drip without ascertaining the level of Blood Sugar by a simple Blood Test. This was said to be primarily responsible for constant and steady deterioration of Pramod Verma’s condition, but Respondent No. 2 continued to assure the appellant that Pramod Verma would soon recover and there was no need to shift him to a better equipped Hospital. It was, however, in the evening of 14th July, 1992, that Pramod Verma who was already in an unconscious state, was shifted to Hinduja Hospital on the advice of Respondent No. 2.

8. Both the Respondents filed separate counter-affidavits in which they denied the allegation of negligence made against them and contended that they had taken all due and reasonable care to cure Mr. Verma or the ailment from which he suffered. They contended that there was no deficiency in service nor was there any negligence on their part.

9. The exact pleas raised in defence by Respondent No.1 which have been set out by the Commission in its judgment under appeal, are given below:

“It has been submitted by opposite party no. 1 that he has undergone an integrated course of study in both the Homeopathic and Allopathic systems of medicine and was awarded the D.H.M.S. Diploma after his having passed the final examination at the end of a four year course conducted by the Homeopathic Medical College, Anand, Gujarat. Exhibit Annexure R-1 is a copy of the said diploma and it shows that the said diploma had been awarded after the candidate had been examined inter alia in the following subjects: Anatomy Physiology, Pathology, Forensic Medicine, surgery, Practice of Medicine, Hygiene, Midwifery and Gynaecology. Opposite party no. 1 has stated in his counter affidavit that during the final year of the study in the Homeopathic Medical collage, Anand he had been given training in the Anand Municipal Hospital and also another private nursing home in Anand for a period of six months. Opposite party no. I was thereafter enrolled as a Registered Medical Practitioner in the states of Gujarat and Maharashtra with Registration numbers G649 (Gujarat) and 10197 (Maharashtra). Opposite party no. 1 has denied the allegations of the complainant that he is not qualified, competent and authorised to practice the Allopathic system of Medicine. He has submitted that he used reasonable degree of skill and knowledge in treating the complainant’s husband and had taken reasonable degree of care of the patient while he was under his treatment.

It is further submitted by opposite party no. 1 in his counter that after the completion of his studies and obtaining the diploma, he had worked as Chief Medical Officer at a well known Allopathic clinic by name, Patel Surgical & Nursing Home, Andheri, Bombay from 1983 to 1990 and he had gained very good experience in examining, diagnosing and treating the patients with complaints of various types of sickness and in prescribing necessary Allopathic medicines. It is also submitted by opposite party no. l that late Mr. Pramod Verma and his family had been taking Allopathic treatment from him for the sickness of the members of the family ever since they moved into the colony about one and a half years prior to July, 1992 and he had been functioning as their family physician.

According to opposite party no. 1, Mrs. Poonam Verma came to his clinic on the evening of 4th July, 1992 and requested him to see her husband at her home. Accordingly, opposite party no.1 made a house visit and examined Mr. Pramod Verma in the evening of 4th July, 1992 and on such examination it was found that Shri Verma had fever. Thereupon he prescribed : 1) cap. Ampicillin (500 mg.- four times a day) 2) Tab. Paracetamol (500 mg. – 3 times a day) 3) Tab. Diavol (2 times a day) and 4) Tab B. Complex (2 times a day) Opposite party no. 1 has stated that he gave the above treatment as he felt it may be a case of viral fever which was then very much prevalent in the locality. Thereafter on 6th July, 1992, Mrs. Verma called opposite party no. 1 again to see her husband and hence he went to examine Mr. Verma at his house on that day in the evening. It was found that Shri Verma had mild fever and since the fever had continued for the third day, opposite party no. l states that he advised Mr.Verma to undergo pathological tests, namely, blood test & urine examination etc. Since enteric fever was prevalent at that time in the locality in question (Asha Nager) and neighbouring localities of Bombay, opposite party no. 1 prescribed Tab. Quintor (500 mg. 2 times a day for 2 days) in the place of Cap. Ampicillin. It is stated in the counter affidavit that Quintor is a broad-spectrum antibiotic which is active against the broad-spectrum, of gram negative and gram positive bacteria including Enterbacter. According to opposite party no. 1, Mr. Verma thereafter came to his clinic on 8th July, 1992 and on examining him, opposite party no. 1 found that the was not having any fever. Since there was no other complaint also, opposite party no. 1 advised Mr. Verma to continue the same treatment for another two days, i.e. upto 10th July, 1992. It is further averred in the counter affidavit that on 10th July, 1932 Mr. Pramod Verma again came to the clinic of opposite party no. 1, he had no fever but complained of back-ache. Thereupon opposite party no. 1 advised him to continue the same treatment as before and added a pain killer Tab. Ibuflamor MX 2 times a day for two days . He also gave him an injection Diclonac (3 cc.1 I/M (Intra-Muscular) to the patient. Subsequently, at about 10.30 p.m. on the night of 11th July, 1992, the complainant requested opposite party no. 1 to visit her residence to see her husband. Opposite party no. 1 thereupon went there and examined late Mr. Verma. It was found that he had again developed mild fever and was complaining of pain in the shoulder. Opposite party no. 1 then prescribed for him Tab. Vovaron 1 twice daily and Tab. Neopan plus Cap. Becosules 1 twice daily in addition to Quintor and Ibuflamor tablets which he was already taking. The Intra-Muscular injection of Diclonac (3 cc.) was also given to the patient. lt is the definite case of Opposite party no. 1 that he once again advised Mr. verma to get pathology investigations done for blood count, E.S.R., urine routine and widal test and told him to meet him with the investigation reports. On the next date – 12th of July, 1992 at about 1 p.m. Mrs. Verma came to the residence of opposite party no. 1 and requested him to see Mr. Verma at their residence. Thereupon opposite party no. 1 visited Mr. Verma at his home and examined him. On clinical examination it was found that he had mild fever and that his blood pressure was 90/70 mm. of Hg. On the patient being asked about the reports of the pathological investigations, opposite party no. l was informed that Mr. Verma had not got them done. Thereupon opposite party no. 1 advised the complainant to get her husband admitted to some physician’s nursing home of their choice for examination, pathological investigations and further management. It is the case of opposite party no. 1 that at that time, Mrs. Verma herself mentioned the name of Dr. Warty (opposite party no. 2) and suggested admission of the patient into his Sanjeevani nursing home saying that she knew Dr. Warty quite well because she had earlier been admitted for her delivery in Dr. (Mrs.) Warty’s Maternity Home. Opposite party no. 1 agreed to the said suggestion and gave a medical note setting out the treatment that he has so far been administering to the patient for being shown to Dr. Warty. The complainant’s allegation that opposite party no. 1 had prescribed strong antibiotics without conducting any pathological investigations is strongly refuted by opposite party no. 1 as incorrect and untrue. He submitted that on the contrary he had specifically advised the deceased Mr. Pramod Verma as early as on 6th July, 1992 to undergo pathological tests and on finding that the tests had not been got done till then this advise was reiterated on the night of 11th July, 1992. But, for reasons best known to himself, Mr. Verma ignored the said suggestion also and did not get the investigations done. When it was found in the after noon of 12th July. 1992 that the patient was not cooperating in getting the investigations done, opposite party no. 1 advised the complainant to get her husband admitted to some physician’s nursing home for pathological investigation and further management as it was felt by opposite party no. 1 that it would not be prudent or correct to proceed with the treatment of the patient without getting the requisite pathological investigation done.

Opposite party no. 1 has submitted that the treatment administered by him to late Pramod Verma was correct in every respect and there was no negligence, carelessness or deficiency of any kind on his part in relation to the said treatment given to the deceased Shri Verma during the period 4th July, 1992 to 12th July, 1992. Respondent No.1 was examined on oath by the Commission,
which was keen to know his qualifications and experience in Allopathic System of Medicine. His statement was recorded in question – answer form and the relevant questions and answers given by Respondent No. 1 are set out below: Mr. Raju Ramacnandran, Advocate for the Opposite Party No.1: Dr. Patel, can you briefly describe your educational qualification, the number of years you have put in practice, your age?
A. I passed my DHMS degree i.e. Diploma in Homoeopatnic Medicines and Surgery in 1983 and thereafter I jointed in Bombay one Private Nursing Home.

Hon’ble President: This DHMS is conducted by?
A. This DHMS is conducted by Gujarat Homeopathic Medical Council and from 1983 to 1989 I was working as a Chief Medical Officer there.

Hon’ble Pr. Where?
A. In Patel Surgical Nursing Home at Bombay.

Hon’ble Pr. That is your own.
A. No that is another Patel. He is himself is a Surgeon.

Mr.Y. Krishnan Is he an Allopathic Surgeon.
A. Yes, he is an Allopathic Surgeon. Upto 1989 I was there, then I started my private practice and opened my clinic in 1989 and another clinic I opened in 1991.

Hon’ble Pr. Do you practice allopathy or homoeopathy?
A. Both, I am practising.

Hon’ble Pr. Are you registered as Allopathic Practitioner?
A. I am registered with the Homeopathic Council.

Hon’ble Pr. How are you entitled to practice allopathy?
A. As and when required in emergency cases.

Hon’ble Pr. Are you permitted in the Medical Council’s Rules to practice allopathy?
A. In Gujarat it is allowed.

Hon’ble Pr. Are you allowed in Maharashtra
A. I have not gone through.

Q. Your age also for the record.
A. I am right now running 35.

Q. Dr. Patel, in the course of your Homeopathic Studies were you also given instructions in Allopathic medicines.
A. Yes.

Q. For how many years is the Homeopathic course,
A. Four years.

Q. And your instructions in Allopathic medicines was tor now long?
A. That is upto second year when we got the subject of Anatomy.

Q. When were you working in Patel Surgical Nursing Home, you have started your career? Did you handle Allopathic cases? Did you prescribe allopathic medicines.
A. Yes, in the absence of Dr. Patel, I have to manage all the emergency cases including medicines.

Q. The decision whether to give Allopathic medicine or Homeopathic medicine is taken by you or at the patients request. .
A. No, I was taking the decision.”

10. The counter-affidavit and the statement of Respondent No.1 recorded by the Commission are self contradictory While in the couter-affidavit, he stated to have studied an integrated course in Allopathic and Homeopathic System of Medicine, in his statement on oath, he categorically stated that he had studied Homoeopathy only and instructions in Allopathic medicines were given only in the second year when he was studying Anatomy. Usually, Pharmacology is taught to students after they have learned Physiology and Anatomy. D.H.M.S. Diploma awarded to Respondent No. 1 though indicates that he had studied Anatomy, Physiology, Pathology, Forensic Medicine, Surgery, Practice of Medicine, Hygiene, Midwifery and Gynaecology, does not mention Pharmacology relating to Allopathic System of Medicine to have been taught to him. He appears to have gained some experience (if at all it can be said to be experience) while he worked as Medical Officer in the private nursing home where he prescribed Allopathic Medicines also. It is admitted by him that he was not registered as a Medical Practitioner in Allopathy under the relevant statutory provisions applicable to the State of Maharashtra to which a detailed reference shall be presently made

11. It will be seen that Respondent No. 1 had all along treated Pramod Verma under Allopathic System prescribing Allopathic Medicines though he himself was registered as Medical Practitioner with the Gujarat Homeopathic Medical Council as he had studied Homoeopathy for 4 years in the medical College at Anand and had, thereafter, obtained a Diploma in Homeopathic Medicine and Surgery. If, therefore, he had not studied Allopathy and had not pursued the prescribed course in Allopathy nor had he obtained any degree or diploma in Allopathy from any recognised Medical College, could he prescribe and administer allopathic medicines, is the question which is to be answered in this appeal with the connected question whether this will amount to actionable negligence.

12. The decision of this Court in Indian Medical Association vs. B.P. Shantha (1995) 6 SCC 651, has settled the dispute regarding applicability of the Act to persons engaged in medical profession either as private practitioners or as Government Doctors working in Hospitals or Govt. Dispensaries. It is also settled that a patient who is a ’consumer within the meaning of the Act has to be awarded compensation for loss or injury suffered by him due to negligence of the Doctor by applying the same tests as are applied in an action for damages for negligence.

13. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do. or doing something which a prudent and reasonable man would not do. (See : Blyth vs. Birmingham Waterworks Co. (1856) 11 Ex 781; Bridges vs. Directors, etc. of N.L. Be. (1873-74) LR 7 HR 213; Governor-General in Council vs. Mt. Saliman (1948) ILR 27 Pat. 207; Winfield and Jolowicz on Tort).

14. The definition involves the following constituents:
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequential damages.

15. The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.

16. So far as persons engaged in Medical Profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a Doctor or a Suregon does not undertake that he will positively cure a patient nor. does he undertake to use the highest possible degree of skills as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the judgment in Bolam vs. Friern Hospital Management Committee. (1957) 2 All ER 118, in which, McNair, J., while addressing the jury summed up the law as under :
The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent.

17. This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL); Maynard vs. West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); Sidaway vs. Bathlem Royal Hospital (1995) 1 All ER 643 (HL); Chin Keo vs. Govt. of Malaysia (1967) 1 WLR 813 (PC).

18. The test pointed out by McNair, J. covers the liability of a Doctor in respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.

19. This Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.

20. The principles were reiterated in A.S.. Mittal vs. State of U.P. AIR 1989 SC 1570, in which wide extracts from that judgment were made and approved.

21. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of Respondent No. 1 in the process of treatment of Pramod Verma.

22. Respondent No. l, at the relevant time, was practicing at Bombay and admittedly he was also registered under the Bombay Homoeopathic Practitioners Act, 1959, in which, ’Homoeopathy’ has been defined under Section 2(8) as under:
“Homoeopathy means the Homoeopathic System of Medicine and includes the use Of Biochemic remedies.”

23. ’Practitioner’ has been defined in Section 2(12) while ’Registered Practitioner’ is defined in section 2(16). ’Recognised Medical Qualification, according to Section (14A) means any of the medical qualifications in Homoeopathy, included in the Second or Third Schedule to the Homoeopathy Central Council Act, 1973.

24. Registration Of Practitioners is dealt with in Chapter IV of the Act. Section 20 provides that the Registrar shall prepare and maintain a register of Homoeopathic Practitioners for the State of Maharashtra in accordance with the provisions of the Act. The particulars which are required to be entered in this register and the persons possessing requisite qualifications, whose names would be entered therein, are indicated in other Sub-sections of this Section.

25. Sub-section 12 (a) of Section 20 provides as under:

“Every registered practitioner shall be given a certificate of registration in the form prescribed by rules and shall practice Homoeopathy only. The registered practitioner shall display the certificate of registration, in a conspicuous place in his dispensary, clinic or place of practice.”

26. On registration, a person gets the right to practice. This Section also provides that it shall be lawful for such person to use, after his name, the words “Registered Homoeopathic Practitioner” in full to indicate that his name has been entered in the register under the Act.

27. Under Section 23. the Maharashtra Council of Homoeopathy has been given the power to remove the name of any registered practitioner if he is found guilty of any misconduct. Explanation appended to Section 23(1) defines misconduct, inter alia, as any conduct Which is infamous in relation to the profession.

28. The rights of Registered Practitioners are indicated in Section 28 which is quoted below:
“28. Notwithstanding anything in any law for the time being in force –
(i) the expression “legally qualified medical practitioner” or “duly qualified medical practitioner” or any word importing a person recognised by law as a medical practitioner or member of the medical profession shall, in all Acts of the Legislature in the State of Maharashtra and in all Central Acts (in their application to the State of Maharashtra)in so far as such Acts relate to any matters specified in List II or List III in the Seventh Schedule to the Constitution of India, include a practitioner whose name is entered in the resister under this Act;
(ii) a certificate required by any Act from any medical practitioner or medical officer Shall be valid if such certificate has been signed by a practitioner whose name is entered in the register under this Act;
(iii) a practitioner- whose name is entered in the register shall be eligible to hold any appointment as physician or other medical officer in any Homoeopathic dispensary, hospital or infirmary supported by or receiving a grant from the State Government and treating patients according to the Homoeopathic system of medicine or in any public establishment, body or institution dealing with such system of medicine;
(iv) every registered practitioner shall be exempt, if he so desires, from serving on an inquest under the Code of Criminal Procedure, 1973.

29. The scheme of the Act, therefore, indicates that a person gets the right to practice in Homoeopathy on being registered as a Medical Practitioner. The certificate of registration issued to such practitioner requires him to practice in HOMOEOPATHY ONLY as is clear from the words ’AND SHALL PRACTICE HOMOEOPATHY ONLY’ used in Sub-section 12(a) of Section 20. Apart from the right to practice, other rights which become immediately available to a person on registration of his name are indicated in Section 28 which, inter alia, includes right to treat patients according to the Homoeopathic System of Medicine.

30. Right to practice in Allopathic System of Medicine as also the right to practice in Ayurvedic or Unani System of Medicine is regulated by separate independent Central and local Acts. Indian Medical Council Act, 1956 deals, inter alia, with the registration of persons possessing requisite qualifications as Medical Practitioner in Allopathic System as also recognition of Medical Qualifications and Examinations by Universities or Medical Institutions in India.

Section 15 of this Act provides that any person possessing any of the qualifications mentioned in the Schedule appended to the Act, may apply for the registration of his name. Sub-sections 2 and 3 of Section 15, which are extremely relevant, are quoted below :
“15(21 Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register-
(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
(b) shall practice medicine in any State;
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed by or authenticated by a duly qualified medical practitioner;
(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of Indian Evidence Act, 1872 on any matter relating to medicine.
(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

31. The impact of the above provisions is that no person can practice medicine in any State unless he Possesses the requisite qualification and is enrolled as a Medical Practitioner on State Medical Register. The consequences for the breach of these provisions are indicated in Sub-section 3. If a person practices medicine without possessing either the requisite qualification or enrollment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine or both.

32. Apart from the Central Act mentioned above, there is the Maharashtra Medical Council Act 7 1965 dealing with the registration of Medical Practitioners and recognition of qualification and medical institutions. Section 2 (d) defines ’Medical Practitioner’ or ’Practitioner’ as under:

“Medical Practitioner or Practitioner means a person who is engaged in the practice of modern scientific medicine in any of its branches including surgery and obstetrics, but not including Veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or Biochemic system of medicine (emphasis supplied)

33. It will be seen that the definition consists of two distinct parts; the first part contains the conclusive nature of phraseology and the latter part is the exclusionary part which specifically excludes Homoeopathic or Biochemic System of Medicine. A register of Medical Practitioners is to be maintained in terms of the mandate contained in Section 16(1) of the Act Under Sub-section (3), a person possessing requisite qualification and on payment of requisite fee can apply for registration of his name in the aforesaid Register.

34. A combined reading of the aforesaid Acts, namely, the Bombay Homoeopathic Practitioners Act, 1959, the Indian Medical Council Act, 1956 and the Maharashtra Medical Council Act, 1965 indicates that a person who is registered under the Bombay Homoeopathic Practitioners Act, 1959 can practice Homoeopathy only and that he cannot be registered under the Indian Medical Council Act, 1956 or under the State Act, namely, the Maharashtra Medical Council, Act, 1965, because of the restriction on registration of persons not possessing the requisite qualification. So also, a person possessing the qualification mentioned in the Schedule appended to the Indian Medical Council Act, 1956 or the Maharashtra Medical Counsel Act, 1965 cannot be registered as a Medical Practitioner under the Bombay Homeopathic Practitioners Act, 1959, as he does not possesse any qualification in Homoeopatnic System of Medicine. The significance of mutual exclusion is relevant inasmuch as the right to practice in any particular system of medicine is dependent upon registration which is permissible only if qualification) and that too, recognised qualification, is possessed by a person in that System.

35. It is true that in all the aforesaid Systems of Medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous System, the Cardio-Vascular System, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, Emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.

36. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one System of Medicine can claim to treat the patient by drugs of another System which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all Systems of Medicines and the students belonging to different Systems of Medicines may be taught physiology and Anatomy together, but so far as the study of drugs is concerned, the pharmacology of all systems is entirely different.

37. an ailment, if it is not surgical, is treated by medicines or drugs. Typhoid Fever, for example, can be treated not only under Allopathic System of medicine, but also under the Ayurvedic, Unani and Homoeopathic Systems of Medicine by drugs prepared and manufactured according to their own formulate and pharmacopoeia . Therefore, a person having studied one particular System of Medicine cannot possibly claim deep and complete knowledge about the drugs of the other System of Medicine.

38. The bane of Allopathic medicine is that it always has a side-effect. A warning to this effect is printed on the trade label for the use of the person (Doctor) having studied that System of Medicine.

39. Since the law, under which Respondent No. 1 was registered as a Medical Practitioner, required him to practice in HOMOEOPATHY ONLY, he was under a statutory duty not to enter the field of any other System of Medicine as, admittedly, he was not qualified in the other system, Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence particularly as the duty of care indicated by this Court in DR. LAXMAN JOSHI’S CASE (SUPRA) WAS BREACHED BY HIM ON ALL THE THREE COUNTS INDICATED THEREIN.

40. Negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se, which is defined in Black’s Law Dictionary as under :

Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”

41. A person who does not have knowledge of a particular System of Medicine but practices in that System is a Quack and a mere pretender to medical knowledge or skill, or to put it differently, a Charlatan.

42. Where a person is guilty of Negligence per se, no further proof is needed. However, we may notice that Respondent No.1 started treatment of Pramod Verma for Viral Fever as it was “very much prevalent in the locality”. Subsequently, he treated Pramod Verma for Typhoid Fever since it was “prevalent at that time in the locality in question and neighbouring localities of Bombay”. On both the occasions, treatment was given for fever which Respondent No.1 thought was prevalent in the locality and, therefore, Pramod Verma would also be suffering from that fever. He did not feel it necessary to confirm the diagnosis by pathological tests which would have positively established whether Pramod Verma was suffering from typhoid Fever Respondent No.1 has given out in his statement on oath, recorded by the Commission,that he had advised Blood test and Urine test but Pramod Verma did not get it done. All the prescriptions of Respondent No.1 have been filed by the appellant but on none of them any advice was written by Respondent No.1 for Blood or Urine Test. We cannot ignore the usual practice of almost all the Doctors that when they want pathological tests to be done, they advise in writing on a prescription setting out all the tests which are required to be done. Admittedly, Respondent No.1 had not done it in writing. He says that he had advised it orally. This cannot be believed as this statement is contrary to the usual code of conduct of medical practitioners.

43. The condition of Pramod Verma while under treatment of Respondent No.1 deteriorated so much so that he had to be shifted to the private nursing home of Respondent No.1 and from that nursing home, he was shifted to the Hinduja Hospital in an unconscious state where he ultimately breathed his last.

44. On 29th of November, 1995, the following Order was passed by us:

“This appeal is sequel to a complaint filed by Ms.Poonam Verma, before the National Consumer Disputes Redressal Commission, New Delhi, (the Commission), alleging negligence and deficiency in service on the part of two doctors of Bombay, namely, Ashwin Patel and Rajeev M.Warty. The Commission recorded the statements of both the doctors. Dr. Ashwin Patel as R.W.1 and Dr. Rajeev M.Warty as R.W.3, appeared before the Commission. Dr. Ashwin Patel produced an Expert, namely, Dr.Jitender V.Patel as R.W.2 in support of his case before the Commission Dr.Ashwin Patel is admittedly a Homeopath Physician. It is also admitted that he prescribed Allopath medicines to the deceased husband of the complainant. Dr. Rajeev M. Warty is an Allopath Practitioner running a Nursingh Home in Bombay. Deceased husband of the complainant was admitted in the Nursing where he stayed for two- three days. Finally the deceased was admitted in Hinduja Hospital, where he passed away within four hours of his admission. No expert was produced by the complainant before the Commission. The Commission finally dismissed the complaint by a speaking order. We are of the view that in order to do complete justice between the parties, it is necessary to have opinion from eminent doctors on the basis of the material which is on the record. We, therefore, request the Director of the All India Institute of Medical Sciences, New Delhi to appoint a Board of doctors/ Specialist in Medicine and other related branches, to examine the material which is being sent along with this order, regarding the correctness, adequency and other relative aspects of the treatment rendered to the deceased. The Board shall give its opinion within two weeks of the receipt of this order. Registry to send a copy of this order to the Director of the All India Institute of Medical Sciences, New Delhi, within 2 days along with the following documents: (1) Copies of the Statements of Dr. Ashwin Patel (R.W.1), Dr. Jitender V.Patel (R.W.2) and Dr.R.M.Warty (R.W.3). These documents are at pages 141 to 201 of the record received from the Commission. (2) Copies of the documents from pages 20 to 48 and 121 to 129 of the above said record. The opinion of the Board of doctors shall be sent to this Court in sealed cover, with in the period indicated by us.

45. In pursuance of the above Order, Dr. J.N. Pande, Prof. & Head, Deptt. of Medicine, Dr. A.K. Mukhopadhya, Prof. & Head, Deptt. of Lab. Medicine, Dr. K. Prasad, Assoc. Prof. of Neurology, Dr. Y.K. Joshi, Assoc. Prof. of Gastroenterology, Dr. Kamal Kishore, Assoc. Prof. of Pharmacology and Dr. Shakti Gupta, Asstt. Prof. of Hosp. Admn. of the All India Institute of Medical Sciences examined the record of this case including all the prescriptions and they gave the following opinion:

“Mr.Parmod Verma suffered from fever on the 3rd of July, 1992 and after a brief period of illness of less than 2 weeks he expired on the 15th of July, 1992 at Hinduja Hospital. It was felt that material available to the Medical Board, it is not possible to arrive at a definitive conclusive diagnosis regarding the deceased. It appears most probably that Mr.Verma had an infection leading to septicemia possibly on a background of hitherto unrecognized diabetes mellitus. He probably suffered from some intracranial complications presumably related to infection and died as a consequence thereof. He received the usual treatment by antipyretics and commonly used antibiotics in the initial stages of his illness as per the usual practice in patients suffering from fever. Mr. Verma’s illness however followed a fulminant course with rapid deterioration in his general condition requiring admission into a private nursing home and subsequently to a large referral hospital. From the available information it appears that the treatment administered to Mr.Verma was in keeping with the usual practice in the management of such problems. It is unfortunate that Mr. Verma had rather fulminant course of his disease and expired before the definitive diagnosis could be established.”

46. The Professors have not been able to give a positive opinion but they do observe that Pramod Verma died before a positive diagnosis could be established. The sad story had its beginning in the hands of a Quack Allopathic Doctor, namely, Respondent No.1 who, having not studied Allopathic System of Medicine, treated Mr. Pramod Verma in that System and gave Broad Spectrum Antibiotics with antipyretics for Viral Fever “which was prevalent” and then for Typhoid Fever “which was also prevalent” together with tablets as also intra-muscular injections of a sodium compound to relieve him of pain without ascertaining the cause for the pain. Since Pramod Verma had already suffered at the hands of Respondent No.1 and his condition had already’ been damaged to an unascertainable extent before he was shifted to the clinic of Respondent No.2, we do not, specially in iew of the report of the Professors of AIIMS, consider it proper to proceed against Respondent No.2.

47. But we are of the positive opinion that Respondent No.1, having practised in Allopathy, without being qualified in that system, was guilty of Negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim Sic Utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence), leaving it to repeat to himself the words of Dr.J.C. Lettsom (On Himself):

’When people’s ill, they comes to I, I physics, bleeds, and sweats em; Sometimes they live, sometimes they die. What’s that to I? I lets ’em.’

48. Pramod Verma was 35 years of age and was getting Rs.5,700/- per month as salary. He died a young death which has deprived his dependants, namely; the widow, two children and parents, of the monetary benefit they were getting. They are entitled under law to be compensated.

49. For the reasons stated above:
(a) The appeal as against Respondent No.1 is allowed and the judgment of the Commission, to that extent, is set aside. The claim of the appellant is decreed as against Respondent No.1 for a sum of Rs.3,00,000/- payable to her within three months from, today failing which it shall be recoverable in accordance with law.

(b) Medical Council of India constituted under the Indian Medical Council Act, 1956 as also the State Medical Council under the Maharashtra Medical Council Act, 1965 to whom a copy of this Judgment shall be sent shall consider the feasibility of initiating appropriate action against Respondent No.1 under Section 15(3) of the Indian Medical Council Act, 1956 for his having practised in Allopathic System of Medicine without being registered with the Medical Council of India or the State Medical Council as also without possessing the requisite qualifications.

(c) The appellant shall be entitled to her costs which are quantified at Rs . 30, 000/-.

The post Poonam Verma Vs. Ashwin Patel & Ors appeared first on B&B Associates LLP.

Mr. Justice S.S. Chadha, Member

This Revision Petition has arisen out of the order dated 30.9.93 of the State Commission, Tamil Nadu at Madras disposing of two appeals against the order dated 16.12.92 of the District Forum, Tirunelveli and confirming the award of compensation of Rs. 2,000/- and costs of Rs. 200/-against the Chairman, Board of Examinations, Department of Technical Education, petitioner herein.

2. The complainant alleged that he studied during 1986-89 for getting Diploma in Electrical Engineering, that he appeared but did not pass III semester examination, that he applied to write the examination in October, 1991 and that he was issued the hall ticket bearing 23244, According to the complainant, he went to the examination hall with his hall ticket on 22.10.91 and took his seat, that the examination supervisor told the complainant that the subject Code No. of the subject was wrong, that the complainant approached the Chief Supervisor, that the hall supervisor was asked by Chief Supervisor, to proceed with the list, that the hall supervisor after perusing the list told the complainant that against the name of the complainant only Code No. 2 was cited but the Code No. of the subject Production Technology which the complainant wished to write is Code No. 1 and that all the persons in charge of conducting examination refused to permit the complainant to write the examination on 22.10.91. The complainant alleged that he was wrongly restrained and prevented from writing the examination on production Technology because of the attitude and negligence of the opposite parties and thus there is a clear case of deficiency in service of the persons engaged by the Petitioner herein. The other parties were sought to be made vicariously liable for the negligence. The complainant claimed a compensation of Rs. 25,000/-.

3. According to the opposite parties when the complainant came to the examination hall on 22.10.91 he informed the invigilator that he wanted to write paper No. 1, Code No. 1, on that day without mentioning the name of the Subject or the correct Code No., that on the said date the examination was held for the subject Production Technology with Code No. 2, that the examination with Code No. 1 was scheduled for 23.10.91 and that the complainant tampered with the entries in the Hall Ticket.

4. Before the District Forum the complainant led oral and documentary evidence and the opposite parties filed affidavits along with documents. On the appreciation of the evidence, it was held that the hall ticket, Exhibit Al, shows that the complainant was appearing for III Semester Examination paper bearing Code Nos. 2 and 3, that on 22.10.91 there was examination in III Semester Production Technology-1 bearing Code No. 2, that the complainant was prevented from writing the examination due to confusion and gross negligence of the invigilator and that it amounts to gross deficiency in service. The District Forum granted a compensation of Rs. 2,000/- and costs of Rs. 200/- against all the opposite parties.

5. The opposite parties filed two separate appeals before the State Commission. The State Commission evaluated afresh the evidence on the record and affirmed the finding of the District Forum. It was held that there was gross deficiency of service on the part of the Invigilator for which the employer, the first opposite party, is vicariously liable. The State Commission then adverted to the contention of the appellants before it that the examinations conducted by the appellants are not services rendered for consideration within the meaning of Section 2(l)(o) of the Consumer Protection Act, 1986 and the complainant is not, therefore, a consumer within the meaning of Section 2(l)(d)(ii) of the Act. The attention of the State Commission was invited to the order of this Commission dated 18th March, 1993, In “Director of Technical Education v. A. Siraj Basha, R.P. No. 372 of 1992; decided on 18.3.93 (NC), wherein it was held that there was no arrangement of service for consideration as between the complainant who was a candidate for an examination and the Director of Technical Education whose department conducted the examination and therefore, the complainant cannot be regarded as a consumer. The State Commission after referring to some decided cases observed :

”While rendering the decision in Director of Technical Education, Madras & Another v. A Siraj Basha (supra) the attention of the National Commission does not seem to have been need to the decisions discussed above, particularly to the decision of the National Commission itself in Manisha Samal v. Sambalpur University & Ors., 1 (1992) CPJ 231 NC, and the decision of the Supreme Court in The Bangalore Water Supply and Sewerage Board Etc. v. A. Rajappa and Others, 1978 SC 481 which lays down the law of the land. Hence the judgment of the National Commission in the Director of Technical Education, Madras & Anr. v. A Siraj Basha (supra) in per-incuriam and does not have the sway of binding precedent, as pointed out by the Supreme Court in Mamleshwar Prasad and Another v. Kanahiya Lal, 1975 (SC) 653.

6. The State Commission then held in the impugned order that Education imparted by the Government, Universities and private institutions and the examination conducted by the Government or Universities are services rendered for consideration and the student who avails of these services is a consumer within the meaning of Section 2(l)(d)(ii) of the Act.

7. It is necessary first to recall the Doctrine of Stare Decises. The binding character of judicial decisions may flow either from a constitutional provision or from a statutory provision or from the conventions which the Courts observe in the administration of justice. Constitutional sanction is given to the binding nature of the judgments of the Supreme Court by Article 141 of the Constitution. A declaration of law by the Supreme Court has a binding effect on all Courts in India. The law initiated by the Supreme Court is binding and absolute. Its correctness cannot be doubted. Rules framed by several High Courts in the country require that Judges must follow the decisions of that Court and when a Judge or Division Bench does not agree with another Bench, he or it should have a reference made to the Full Bench or place the papers before the Chief Justice for constituting a larger Bench to resolve the conflict. Subordinate Courts must follow the decision of the High Courts to which they are judicially subordinate, whatever their own views may be. This is a principle based on judicial comity and requires Judges to follow precedents of Courts of Co-ordinate jurisdiction and of superior jurisdiction. In legal matters some degree of certainty is as valuable as part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which make it important for Judges to abide by them. Innovations can not be unsettling and lead to a loss of confidence. (Dias Jurisprudence). The Supreme Court has spoken on Stare Decises in several cases. In Krishan Kumar v. Union of India, (1990) 4 SCC 207, it was ruled :

“Stare decises at non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of Courts is to stand by precedent and not to disturb settled point. When Court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decisions of long standing and rights have been acquired under it, unless consideration of public policy demand it.”

8. The same principles apply to quasi-judicial Tribunals where there is a hierarchy of Tribunals. Each Tribunal must follow its own earlier decisions and the decisions of the Superior Tribunals to which they are subordinate. A decision of a Tribunal is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.

This Commission has taken the view that the Consumer Disputes Redressal Forums are quasi judicial authorities and are thus governed by the well-established principles of the binding nature of its own earlier decisions. The State Commissions and the District Forums are subordinate to this Commission and are bound to follow the decisions of the superior forums. It is sufficient for invoking rule of Stare Decises that a certain decision was arrived at on a question irrespective of the grounds or reasons of its decision. The doctrine of precedent depends on uniformity in the decision on a question of law. That doctrine is not concerned with concrete issues of facts between the parties. Its effect is to declare law not the facts and to declare it so as to be binding upon all consumers or opposite parties as well as all Fora of inferior jurisdiction and in case of same jurisdiction. Were it to be otherwise, the situation in the well ordered field of a legal system governed by precedent would be rendered chaotic.

9. The State Commissions in several cases have noticed and applied the rule of precedent. The State Commission, Haryana in “S.D.O.A.E.E. City Division, Hisar v. M/s. Hotel Palki, Hisar”, I (1992) CPJ 127 and again in M/s. Wheel World of Ambala Cantt. v. S.P. Verma, 1992 (2) CPR 653. held that the State Commission is bound by its own earlier decisions on pure questions of law. In “Pawan Katial & Ors. v. Ansal Housing and Construction Ltd. 1993 (2) CPR 242=II (1992) CPJ 838. the State Commission, Haryana held that it is well settled on the larger theory of precedent that a judgment of a Court holds the field and is binding on the Court’s below till it is expressly reversed or over-ruled by larger Bench or a superior Court and the mere filing of an appeal or the admission of a Special Leave Petition by their Lordship of the Supreme Court does not ipso facto obliterate its reasoning, at the ratio thereof. In “Vijay Kumar Joshi & Ors. v. Chief Executive Officer-cum-Chief Engineer, Shimla Development Authority, 1994 (1) CPR 188=III (1993) CPJ 1662. the State Commission, Shimla came to the conclusion that the State Commission considers themselves bound by their own decision on pure questions of law.

10. A word about decision per incuriam. A decision is given per incuriam, when the Tribunal has acted in ignorance of a previous decision of its own or of any Tribunal of co-ordinate jurisdiction which covers the case before it or when it acted in ignorance of a decision of the superior Court and if it is a decision given per incuriam ignoring by inadvertence a decision of Supreme Court on the point it is obvious that the decision cannot be a binding precedent as the view taken by the Supreme Court on a question of law binds all Courts and Tribunals under Article 141 of the Constitution. But it must be remembered that it does not belong to the State Commissions or District Forums to disregard a decision of the National Commission by applying to it a label of per incuriam.

11. Section 2(d) of the Act defines “consumer” as meaning any person who (i) buys any goods for consideration etc.; and (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. Hiring any services for consideration is thus one of the essential preconditions before a person can be considered to be a consumer within the meaning of the Act. The word ?hire’ means to acquire the temporary use of a thing or the services of a person in exchange for payment, to engage the temporary use for a fixed sum, to procure the use of services of, at a price, to grant temporary use of for compensation. This is the ordinary, plain, grammatical meaning of the expression and has been so expressed by this Commission in several cases. The Consumer must be one who has hired services for consideration and to be a consumer the nexus of hiring of services for consideration must be established. The definition of Service, is contained in Section 2(l)(o) of the Act:

“Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction) entertainment, amusement or the purveying news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”.

12. The question whether a candidate of examination in the University of Rajasthan is a consumer intended to be covered under the provisions of the Act came up for consideration before the Rajasthan State Commission in “Kumari Seema Bhatia v. Registrar, Rajasthan University, II (1992) CPJ 899, Mr. Justice S.K.M. Lodha, President of the State Commission with the concurrence of other members referred to in detail to the establishment of the University of Rajasthan under the University of Rajasthan Act, 1946 and to the various provisions of statutes and ordinances for conducting the examinations and the detailed procedure for evaluation and re-evaluation of the answer books. It came to the conclusion that examination, evaluation of answer books, declaration of results and re-evaluation of answer books do not Constitute service within the meaning of Section 2(l)(o) of the Act. Payment of the re-evaluation of answer books does not mean that the candidate has hired the service of the opposite party. Reliance was placed by the State Commission on the decision of this Commission in ”Society for Civic Rights v. Union of India & Ors. I (1991) CPJ 199 (N.C) that consumer must be one who has hired the services for consideration and to be a consumer the nexus of hiring of service must be established. So payment of the examination fee by the candidate for re-evaluation of the answer books to the University does not mean that the candidate has hired the services of the opposite party. Hire means payment by contract for the use of thing or for personal service, the engagement on these terms. The complaint in that case was dismissed on this limited ground. This is the earliest decision on the question to which we have come across. An appeal was filed before this Commission against the said order dated 28.10.91 passed by the State Commission Rajasthan, being F.A. No. 133 of 1992 and disposed of by the Order dated 12.4.93 reading as follows :

“The appellant is not present either in person or through authorised representative. We have gone through the records and heard the Counsel for the respondent. We are in complete agreement with the view expressed by the State Commission that in conducting the re-valuation of the answer papers of a candidate who has appeared for an examination held by the respondent. University, the respondent was not rendering any service as defined in the Act for consideration nor there was any arrangement of hiring of service for consideration as contemplated by the Act. Hence the approach made by the complainant to the State Commission seeking relief under the Consumer Protection Act was totally misconceived. The dismissal of the complaint petition by the State Commission on the said ground was absolutely correct. We confirm the order of the State Commission and dismiss this appeal. No costs.”

In a recent decision of the Supreme Court in “S.P. Goel v. Collector of Stamps, Delhi, Civil Appeal No. 11603 of 1995 (SC)=I (1996) CPJ 11 (SC). the question arose whether there is any hiring of service for consideration by a person who pays registration charges and presents a document for registration under the Registration Act, 1908 by payment of stamp duty on documents under the provisions of Indian Stamp Act, 1989. After analyzing the provisions of the Registration Act as well as the Stamp Duty Act the Supreme Court ruled that the person who presents document for registration and pays the stamp duty on it or the registration fee, does not become consumer nor do the officers appointed to implement the provisions of the two acts render any service within the meaning of Consumer Protection Act.

The State Commission, Haryana in “Tilak Raj of Chandigarh v. Haryana School Education Board, Bhiwani, I (1992) CPJ 76 (Haryana), had taken a different view by holding that imparting of Education by the State is not one of its sovereign^ regal functions and is a service. The State Commission held that imparting of education by the State clearly comes within the concept of service under Clause (o) Sub-section (1) Section 2 of the Act and inevitably the conduct of the Matriculation and Primary examinations by the School Board for a prescribed fee is a ?service.? The State Commission upheld on 14.8.92 a similar view in “A.PJ. School v. K.L. Galhotra, II (1992) CPJ 807, Both these rulings were given by the Haryana State Commission prior to the decision of this Commission in F.A, No. 133 of 1992.

The question again came up for consideration before this Commission in “Joint Secretary, Gujarat Secondary Education Board v. Bharat Narottam Thakkar, I (1994) CPJ 187. When it was reiterated that in conducting the Secondary School Board Examinations, evaluating answer papers announcing the results thereof and thereafter conducting a re-checking of the marks of any candidate on application made by the concerned candidate, the Board is not performing any service for hire and there is no arrangement of hiring of service involved in such a situation as is contemplated by Section 2(l)(o) of the Act. The complainant in that case was not therefore a consumer and no relief should have been granted in his favour as against the Board of Secondary Education on the ground put forward by the candidate that there was delay in conducting the re-checking of the marks. The same view was reiterated in “Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay, I (1994) CPJ 146. This view was followed by the Maharashtra State Commission in “Maharashtra State Board of Secondary Education v. Chairman, Grahak Jagruti Sangh, II (1994) CPJ 1, by Andhra Pradesh State Commission in the “Secretary, Board of Intermediate Education v. M. Suresh & Anr., II (1995) CPJ 167 (AP)” Kerala State Commission in “P.M. Noushand & Anr. v. University of Kerala & Ors., II (1995) CPJ 334 (Ker.) and by Delhi State Commission “Ruchika Bhartia v. C.B.S.E. & Anr., II (1995) CPJ 436 and in other cases.

The decision of this Commission in “Manisha Samal v. Sambalpur University, II (1992) CPJ 231 (NC), noticed in the impugned order cannot be regarded as an affirmance of the view taken by the Orissa State Commission in the order under appeal that the appellant there had hired the services of the University on payment of fees for appearing at the examination, but no relief was granted. When that appeal came up for hearing before this Commission, it was found on facts that the apprehension of the complainant that the marks she secured in her examination paper had been awarded to other two students who had been assigned the identical roll number in the examination and vice-versa is not true, as the other two students with the same Roll Numbers did not appear in the examination. The complaint was dismissed and there is a specific note that “it is unnecessary for us to go into other points raised,’. A decision is only an authority for what it actually decides on a question of law, not for what it implies or assumes or narrates. This Commission felt it unnecessary to go into other questions and this could not be construed as a tacit affirmance of the correctness of the view taken by the Orissa State Commission. Education does not find mention in express terms like other activities which have been specifically enumerated, but being inclusive definition the net is very wide. But the Supreme Court has not ruled that whenever Education is imparted for consideration there exists a quid pro quo for the provision of Education and monetary recompense, therefore, and included in the definition of service.

13. We must make it clear that in this case or in the earlier cases this Commission did not consider the general question whether the imparting of education for consideration would come or not within the ambit of the service under the Act. Whether a University or an institution affiliated to it imparting education is within the arena of consumer jurisdiction is a question which this Commission will consider and decide when it directly arises before it. What this Commission has decided in earlier casts is that a University or the Board in conducting public examination, evaluating answer papers, announcing the results thereof and thereafter conducting re-checking of the marks of any candidate on the application made by the concerned candidate is not performing any service for hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by Section 2(l)(o) of the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration.

14. The impugned orders suffer from serious illegalities in the exercise of jurisdiction and are entitled to be set aside. The Revision Petition is accepted and the impugned orders dated 30.9.93 of the State Commission, Tamil Nadu and the orders dated 16.12.92 of the District Forum are hereby set aside and the complaint dismissed leaving the parties to bear their own costs throughout.

(Minority View)

Dr. (Mrs.) R. Thamarajakshi, Member.

15. Revision Petition No. 545 of 1994 has been filed by the Chairman, Board of Examinations, Department of Technical Education, Madras against the order dated 13th December, 1993 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu in Appeal No. 23/93 wherein the Revision Petitioner herein had appealed against the order dated 10th December, 1992 of the Tirunelveli Kattabomman District Consumer Disputes Redressal Forum. Tamil Nadu. The respondent complainant before the State Commission is the respondent before us, while Chairman, Board of Examination, Department of Technical Education, Madras, Principal, S.A. Raja’s Polytechnic, Vadakkankulam and Correspondent, S.A. Raja’s Polytechnic, Vadakkankulam were respectively opposite party No. 1, opposite party No. 2 and opposite party No. 3 before the District Forum.

16. The facts of the case, as available from the records, are briefly as follows : When the complainant, a student of the Diploma course in Electrical Engineering in S.A. Raja’s Polytechnic went to the examination hall on 22nd October, 1991 to write his III Semester Examination in Production Technology-I, the Hall Supervisor told that the Code Number of that examination paper was 1 while the complainant’s shall ticket gave the number as 2 and that he was not eligible to write the examination. He could not, therefor, write the examination. On subsequent verification, however it was found that the Code Number for that paper was only 2 and it had been correctly entered in the hall ticket. It was the complainant’s case that the Invigilator had committed the mistake and the opposite parties were vicariously liable for the negligence; he claimed Rs. 25,000/- as compensation for the same. The contention of the opposite party was as follows:

The complainant was in a confused state of mind in regard to the subject code. Due to this confusion, he had tampered with the hall ticket and he was asked to get the initials of the Chief Superintendent who after warning him made necessary corrections and put his initials. However, when the complainant went to the examination hall, he told the Invigilator that he was going to write paper with Code No. 1 instead of paper with Code No. 2 and the Invigilator told him that there was no examination for paper with Code No. 2 on that day. The case of the opposite parties was that the mistake was due to the confusion on the part of the complainant and that, therefore, there was no deficiency of service and negligence on the part of the Invigilator. On the basis of oral and documentary evidence produced by the complainant and affidavits filed by the opposite parties, the District Forum found that there was deficiency of service and negligence on the part of the Invigilator in refusing to allow the complainant to write the examination on 22nd October, 1991 and granted compensation of Rs. 2,000/- and costs of Rs. 200/- against the opposite parties.

17. Separate appeals against this order of the District Forum were filed before the State Commission by opposite party No. 1 (AP 23/93) and opposite party Nos. 2 & 3 (XP. 52/93). On an examination of the case, the State Commission observed that as far as the corrections / tampering in the hall ticket were concerned, the Chief Superintendent had made the necessary corrections and initialled the same and hence nothing turned upon the corrections made thereon. The State Commission further held that whereas the complainant had examined himself as PW1 and another student who took the examination on that day as PW 2 to show that it was the Invigilator who told the complainant that the examination was paper with Code No. 1 and did not allow the complainant to write his examination because his hall ticket mentioned Code No. 2, the opposite party No. 1 had not chosen to examine the particular Invigilator to substantiate the contention that it was the complainant who was in a state of confusion regarding the code number nor had filed any affidavit from the Invigilator. The State Commission thus concluded that the testimony of PW1 and PW2 that it was the Invigilator who informed the complainant that the examination on that day was for paper bearing Code No. 1 and sent put the complainant stands unrebutted. The State Commission, therefore, confirmed the findings of the District Forum but held that the opposite parties 2 & 3 had absolutely nothing to do with the conducting of examination except placing the college premises at the disposal of the opposite party No. 1 for the conduct of examination and hence were not liable for the negligence on the part of Invigilator who was appointed by the opposite party No. 1. In the result, the State Commission held that there was gross deficiency on the part of opposite party No. 1 and confirmed the award of compensation of Rs. 2,000/- and costs of Rs. 200/- against the opposite party No. 1. While doing so, the State Commission considered in depth the larger issue of whether education is a service maintainable under the Consumer Protection Act, and answered the same in the affirmative.

18. In the Revision Petition before us also, the main contention are: (i) whether a candidate appearing at an examination could be said to hire the services of the examining body for holding an examination; (ii) whether holding an examination in discharge of statutory functions could be said to be rendering service for consideration; and (iii) whether matters relating to the holding of an examination are within the purview of the Consumer Redressal Forum.

19. In my view, these are specific issues and are integral components of the basic issue of whether imparting of education per se is within the purview of Consumer Protection Act; the specific issues and the basic issue are inseparable and, therefore, cannot be delinked. To be able to satisfactorily handle the aforesaid specific contentions in the Revision Petition, the basic issue whether imparting of education is covered under the Act, as a service has to be first dealt with. It is, therefore, proposed to consider the issues in an integrated way.

20. Education is imparted through schools, colleges, institutions and universities, and the educational institution may be private, Government or autonomous bodies. Imparting of education is a composite activity consisting of several components, namely admission to these institutions, teaching and instruction, conducting of examination, evaluation of performance of students in the courses they have under gone, issuance of certificates and diplomas of achievement and mark-sheets etc. Which require payment of prescribed fees (consideration) by the students /candidates to the educational authorities unless specified as “free/,

21. To examine whether imparting of education is a service under the Act, the definitions of “Consumer”, “Service” and “Deficiency” therein are relevant.

Section 2(1)(d) of the Act defines Consumer as meaning :

“(i) any person who buys any goods for a consideration etc; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;”

Section 2(l)(o) of the Act, defines “Service” as meaning :

“Service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

Section 2(l)(g) of the Act, defines ‘deficiency’ as meaning:

“any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

The above definitions of “consumer”, “Service,, and “Deficiency” are seen to be intended to have wide scope of interpretation. The words “any services for a consideration” in the definition of “Consumer” points to the generally non-restrictive nature of the definition in relation to service. The scope of definition of service in the Act has been discussed in extensor by the Supreme Court in Lucknow Development Authority v. M.K. Gupta, 1986-95 Consumer 278 (NS)=III (1993) CPJ 7 (SC). and more recently in Indian Medical Association v. V.P. Shantha & Ors., 1986-95 (Supp. I) Consumer 1569 (NS)=III (1995) CPJ 1 (SC). After pointing out that the definition of ?service? in the Consumer Protection Act, is in three parts, the Supreme Court has observed in the former case :

“The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words ?any? and potential, are significant. Both are of wide amplitude. The word ?any’ dictionarily means “one or some or all”. In Black’s Law Dictionary it is explained this, word ?any’ has a diversity of meaning and may be employed to indicate all, or ?every? as well as ‘some’ or ?one’ and its meaning in a given statute depends upon the context and the subject matter of the statute. “The use of the word ‘any, in the context it has been used in Clause (o) indicates that it has been used in wider sense extending from one to all”.

Referring to the inclusive part of the definition, the Supreme Court in the above said case observed:

“The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a contract of personal service is included in it”.

The Supreme Court also made observations in the same case on the larger issue whether the public authorities under different enactments are amenable to jurisdiction under the Act. Referring to the arguments placed before them in that case that the local authorities or Government bodies develop land and construct houses in the discharge of their statutory functions and that therefore, they could not be subjected to the provisions of Act, the Court observed :

“In fact the act, requires the provider of service to be more objective and care taking. It is still more in public services.

They further observed :

“Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act, and the spirit behind it.,.

The words “avails of, in Section 2(l)(d)(ii) as alternative to “hires” in the same section as also the words “has been undertaken to be performed in pursuance of a contract or otherwise in relation to any service” in Section 2(l)(g) have the effect of bringing under the purview of the consumer forum, services rendered by bodies like Universities which are established for rendering specified services and which services are availed of for a consideration, even in the absence of any arrangement or contract to hire such services.

22. I would also like to discuss the question of the Doctrine of Stare Decises vis-a-vis the instant case. The Doctrine of Stare Decises is defined in Black’s Law Dictionary as follows :

“To abide by, or adhere to decided cases. Policy of Courts to stand by precedent and riot to disturb settled point. Neff v. George, 364 III 306,4 N.E.: 2d 388,390,391. Doctrine that, when Court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. Home V Moody, Tax. Civ. App. 146 S.W. 2d 505,509 and 510. Under doctrine a deliberate or solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the very point is again in controversy. State v. Mallenberger, 163 or 233, 95 P2d, 709, 719, 720. Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed though later found to be not legally sound, but whether previous holding of Court shall be adhered to, modified or over-ruled is within Court’s discretion under circumstances of one before it. Ottar ail Power Co. v. Von Bank, 72N. D 497, 8N.W.2d 599, 607. Under doctrine when point of law has been settled by decision, it forms precedent which is not afterwards departed from, and, while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injuries. The doctrine is not ordinarily departed from where decision is of longstanding and rights have been acquired under it, unless considerations of public policy demand it. Colonial Trust Co. v. Flanagan 344 Pa. 556,25A, 2d, 728,729. The doctrine is limited to actual determination in respect of litigated and necessarily decided questions and is not applicable to dicta or Obiter dicta”, (Black’s Law Dictionary, Sixth Edition, Centennial Edition 1891-1991 Page 1406).

23. The doctrine applies in regard to decided cases. In so far as the National Commission has not decided on the basic question of whether education is a service under the purview of the CPA (from which question the specific questions in the Revision Petition arise), the doctrine is not applicable to the case on hand. A careful reading of the above definition of the doctrine shows that flexibility is given to the adjudicating bodies in dealing with different cases. This is clear from the following relevant extracts from the definition; i.e. “whether previous holding of Court shall be adhered to, modified, or overruled is within Court’s discretion under circumstances of case before it,’. “While it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice”.

24. It may be mentioned that in the recent decision of Supreme Court in Civil Appeal No. 11603/95 S.P. Goel v. Collector of Stamps, Delhi, (supra) the Supreme Court has specifically considered the scope, object and purpose of the Registration Act, 1908 and the Indian Stamps Act, 1899 vis-a-vis the Consumer Protection Act and have held that the former two Acts deal with State Revenue and pointed out that:. 1st

“The Registration Act as also the Stamp Act are meant primarily to augment the State revenue by prescribing the stamp duty on various categories of instruments or documents and the procedure for collection of stamp duty through distress or other means including criminal prosecution as non-payment of stamp duty has been constituted as an offence. Payment of registration fee or registration charges including charges for issuing certified copies of the registered documents or fee for the inspection of various registers or documents kept in the Registrars or sub-Registrars office etc. constitute another component of State revenue.

It this situation, therefore, the person who presents a documents for registration and pays the stamp duty on it or the registration fee, does not become a consumer nor do the officers appointed to implement the provisions of the two Acts render any service within the meaning of Consumer Protection Act. They only perform their statutory duties (some of which, as earlier indicated, are judicial or, at least, quasi-judicial in nature) to raise and collect the State revenue which is a part of the sovereign power of the State.”

The Supreme Court has further observed as under:

“We have already indicated above that under the Registration Act, as also under the Stamp Act, the officers, apart from performing administrative duties, also, at times, perform quasi-judicial functions. The Courts are also involved at some stage in the matter of determination of stamp duty. The Court and the officers are thus component of one and the same set up under these Acts. The Presiding Officers of the Courts are protected under the Judicial Officers (Protection) Act, 1850, read with the Judges (Protection) Act, 1985. But, so far as the officers are concerned the position is a little different.”

Since ‘Collector, has been specifically mentioned along with judges, Magistrates and Justices of Peace in the Judicial Officers (Protection) Act, 1850, it is obvious that immunity from legal action contemplated by this Act, will also be available to him.

25. From the aforesaid, it is obvious that since the fee collected in respect of educational institutions is not in the nature of State revenue and the officers of these institutions cannot, therefore, be equated to the Collector/Registrar under the respective Acts, the decision of the Supreme Court in S.P. Goel v. Collector of Stamps, Delhi. (Supra) is not applicable to the matter on hand.

26. The Consumer Protection Act, (1986) is an important social welfare legislation aiming to provide for the better protection of the interests of consumers, consumer legislation in India is in an evolutionary stage and it is only in November, 1995 that the Supreme Court has said the final word on the applicability of the Act to consumers of medical services. A positive approach is needed in interpreting the provisions of the Act, to capture to a maximum extent the spirit underlying the enactment to render natural justice to consumers and also to make those rendering these services accountable.

27. In the light of the aforesaid discussion, the answer to the basic question whether imparting of education is a service under the purview of the Act, is in the affirmative and therefore the answers to the specific issues in the Revision Petition which are operational aspects of the basic question?are also in the affirmative. It has been seen above that this conclusion based on the integrated examination of the basic and specific issues does not upset the doctrine of Stares Decises. I am, therefore, of the opinion that the order of the State Commission, Tamil Nadu does not suffer from any error of jurisdiction or material irregularity and that it does not call for any interference in the hands of this Commission Revision Petition is accordingly dismissed. No costs.

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JUDGMENT

A.P. SINGH, J.

Present writ petition involves a short but interesting question of law to be decided for the first time. The question is whether with the deletion of Section 47 (3) of Motor Vehicles Act, 1939 in the new Motor Vehicles Act of 1988 power of creation of route no more lies with the Regional or State Transport Authority.

2. For the purposes of proper appreciation of the question which needs to be decided in this case the facts of the case which are not in dispute have to be noticed.

3. Petitioner is an existing operator of stage carriage on Jamuna Bridge Muzaffar- Nagar via-Saharanpur Tapari-Sidki-Rampur-Bajheri-Sarwat Route (hereafter called the old route). Respondents 4 to 21, (hereafter the respondents) applied before Regional Transport Authority, Meerut, opposite-party No. 2 for grant or stage carriage permit on Muzaffar Nagar-Kuteshra-via-Sisauna-Naogaon-Khampur-Rohana- Baheri-Akhlaur-Pauti route, (hereafter called the new route). The new route which overlaps on part of the old route was not in existence (having not been created or classified) and the Regional Transport Authority in its meeting dated 2-6-1995 created the route and granted stage carriage permits to the respondents overlooking, ignoring the objection of petitioner. Petitioner then filed revision before opposite-party No. 1 challenging the power and authority of opposite party No. 2 to create route and grant permit to respondents thereon inter alia on the ground that power to create a new route vests with State Government and not with the Transport Authority; they also placed reliance on some interim orders passed by this Court in pending writ petition wherefrom petitioner tried to impress upon opposite-party No. 1 that since the question was in active consideration in identical matter before this Court therefore decision on the question should have not been made by the Regional Transport Authority, The opposite-party No. 1 after hearing the parties rejected petitioner’s contention that the Regional Transport Authority had no jurisdiction to create route according to it Regional Transport Authority was fully competent for that purpose subject to directions which the State Government could issue under the provisions of the new Act. Opposite-party No. I however, set aside the order of the Regional Transport Authority granting permit to respondents.

4. Petitioner has filed above writ petition against the part of the order of the State Transport Authority (hereafter S. TA.) upholding the power of Regional Transport Authority to create route.

5. In the background of the above facts, now it is necessary to notice the provisions of law having relevance on the point in issue:

Motor Vehicles Act, 1939 was enacted to control and regulate development of Road Transport in the country which was likely to expand with the framing of five years plans. Permit is required to ply a motor vehicle in public place, therefore, different types of permits including stage carriage permit is required for carrying passengers for hire and reward etc. in motor vehicle other than in motor cabs. Grant of permits in 1939 Act was regulated by the provisions in Chapter IV. In Chapter IV occurred section 47 which laid down procedure for considering applications for grant of stage carriage permits by Regional Transport Authorities of respective regions whereas Section 48 provides how such permits are granted. Section 46 lays down the manner of making applications for grant of stage carriage permit. Section 57 provides the procedure for applying and grant of permits of every nature. Similarly Section 45 provides for the general provisions as to applications which are made for grant of permits of every nature.

6. Clauses (1) and (2) of Section 45 provides for the place where the application has to be filed clauses (3) and (4) provide for deposit of security with the application. Section 46 provides for the particulars which are required to be given in the application for grant of stage carriage. First requirement is the mentioned the ‘route’ or ‘routes’ ‘area’ or ‘areas’ in respect whereof the application relates. The word ‘route’ has been defined in Section 2, clause (28-A) exhaustively. It reads as follows:

“it means a line of travel which specifies the highway may be traversed by a motor vehicle between one terminus and the other. ”

The word highway has not been defined in the Act. In English language the word ‘highway’ is known as ‘a passage’ Toad’, or street which every citizen (person) has a right to use. ‘ In its wider sense the word is used for all kinds of ‘public ways’ whether they be carriage ways, bridge ways footways, bridges, turnpike roads, rail roads, canals, ferries or navigable rivers.

7. From the meaning of word ‘route’ therefore it does not appear that an ap plication for permit has to be made only in respect of particular road or highway. Such an application as per Section 46 can be made in respect of a line of travel specifying the highway which applicant would like his motor vehicle to traverse between one point of that highway and another point, from Section 46 (a) it further appears that the application may not necessarily relate to a highway it may relate to” an area or areas. In Section 47 the Regional Transport Authority while considering applications for grant of stage carriage permit is required, inter alia, to have in his consideration, condition of roads which are included in the proposed route or area and interest of existing operators on that route in that area. In clause (3) of Section 47 Regional Transport Authority is empowered to limit the number of stage car riages on a route or in an area. Section 47 (3) read with the proviso of clause (3) of Section 57 empowers the Regional Transport Authority to reject an application for grant of stage carriage permit if he is of the opinion that grant of the permit would result in the increase of number of stage carriage permits already granted in that area or route or the region to which the application relates.

8. Thus overall picture which emerges from the (relevant) provisions of 1939 Act, which now stands repealed by 1988 Act, is that application for grant of stage carriage permit can be filed and permit can be granted in respect of a particular line of travel on a highway or area or areas between one point of travel and another for which no pre-determined area, road or route or highway is required. This clearly postulates that the applicant has to himself decide as to in which area or areas, road or roads highway or highways he wants his motor vehicle to transverse for picking up and setting down passengers for hire and reward etc. The Regional Transport Authority has no power to refuse to entertain an application which has been filed in respect of an area or route which is not known to that authority or

which so far had not been classified by appropriate authority for purposes of payment of tax. The route or the area for which application may relate may not be a route or area which is already being traversed by stage carriages having been granted permits. Now it has to be seen whether with the advent of 1988 Act position in this regard has changed so as to impose restriction on the permit seeker to devise his own route or area where he wants to ply his motor vehicle (stage carriage) with the aid of stage carriage permit and whether the Regional Transport Authority’s power to grant permit on a new route or in a new area has been curbed.

9. Definition of word ‘route’ in Section 2 (38) of 1988 Act has been retained as it was in 1939 Act.

10. Control of transport vehicles in 1988 Act occurs in Chapter V, Section 69 in this Chapter is pari materia to Section 95 in Chapter IV of 1939 Act. Similarly, Section 70 (a) of 1988 Act is to Section 46 (a) of 1939 Act. There is however a considerable change in Section 47 of 1939 Act. The equivalent of that in 1988 Act is Section 71 whereas equivalent of Section 57 of 1939 Act is Section 80 in 1988 Act. The two provisions read together curtail the absolute power of Regional Transport Authority to fix the number of vehicles which may ply on a route or in an area or the number of permits which could be granted on the route or area if the route or the area comes within city having population of not less than five lacs; strength of permits in such areas or routes can be fixed by the Regional Transport Authority or S. T. A. as the case may be only on the basis of directions issued by the State Govern ment by an order published in Gazette notification (see Section 71 (3)) so far as other routes or areas are concerned including any route or area in respect whereof directions as contemplated by Section 71 (3) of 1988 Act have not been issued per mits can be granted without regard being had to the number of permits already granted nor the Regional Transport Authority/s. TA. has power to fix any particular strength for grant of stage carriage permits on any route or area.

11. State Governments of respective States have been empowered by Section 43 of 1939 Act and Section 67 of 1988 Act to control road transport. The power conferred in that regard on the State Government has not been changed and same powers which were given in Section 43 of old Act have been given to the State Government by Section 67 of New Act. The State Government under the provision has been empowered to issue orders published in official Gazette regarding certain matters to transport authorities who are under legal obligation to carry out those directions [see Section 68 (3)]. The directions which can be issued under Sections 67 and 68 have nothing to do with identification of area or route in respect of which permit is applied and is to be granted.

12. However, by Motor Vehicles Amendment Act, 1994 (Act No. 54 of 1994) enforced on 14-11-1994 clause (c-a) was added in sub-section (3) of Section 68 after clause (c).

Clause (3) of Section 68 after amendment reads as follows :

” (3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions, namely:

(a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any of the State.

(b) to perform the duties of the Regional Transport Authority where there is no such authority and if it thinks fit or if so required by a regional Transport Authority to perform those duties in respect of any route common to two or more regions.

(c) to Settle all disputes and decide all matters in which differences of opinion arise between Regional Transport Authorities.

(c-a) Government to formulate routes for plying stage carriage; and

(d) to discharge such other functions as may be’ prescribed. ”

A reading of clause (3) of Section 68 of the 1988 Act after its amendment by Act No. 54 of 1994 will bear out that there are two parts in it. In the first part the STA and RTA both are under obligation to give effect to the directions, which is given by the State Government under Section 67′ while exercising their respective powers under the Act; in the other part the S. T. A. has been authorised to exercise and discharge throughout the State the powers and functions enumerated in sub-clauses (a) to (d of clause (3) of Section 68. The powers and functions provided under sub-clauses (a to (d) are required to be discharged or performed by the S. T. A. are also subject to the directions of the State Government issued (notified) under Section 67 except it is provided otherwise. The functions and powers mentioned in sub- clauses (a), (b) and (d) are only to be performed by the S. T. A. however so far power under sub-clause (c- a) is concerned it does not on the fact appear to be one which is to be exercised by the State

Government, but so as to give it appropriate meaning keeping in mind the subject and the context. Wherein it has been placed and also applying the principle of ejusdem generis the only interpretation which possibly can be given to it is that the S. TA. shall create the routes for plying of stage carriages throughout the State on the principles which are formulated by the State Government.

13. The power to create route for plying of stage carriages, after November, 1994 when sub-clause (c-a) came into force, cannot therefore be exercised by the R. T. A. ; such power has to be exercised by the S. T. A. only, obviously on the prin ciples formulated by the State Government. Thus R. T. A. which was exercising power or creation of new routes before 14th November, 1994 ceased to possess such power.

14. This conclusion though is not clearly conveyed from the express which have been used in sub-clause (c-a) but when interpreted and understood in the context in which the sub-clause has been placed in Section 68 (3) there can be no conclusion other than the one drawn herein above.

15. Sub-clauses (a), (b), (c) and (d) clearly indicate both from the express words used therein and also from the subject and context that the powers and functions enumerated therein relate to the S. T. A. and to none else. Therefore power or function under sub-clause (c-a) too in absence of express words, cannot be attributed to the powers and functions of the R. T. A. or of the State Government. In absence of a word in that sub-clause which may suggests something else the only possible conclusion which can fairly be drawn is that the S. T. A. has been conferred with the power to create routes for plying of stage carriages throughout the State on principles which may be laid down by the State Government.

16. However, if literal meaning of the words and the context in which they have been used in sub-clause (c-a) is taken then to my mind it empowers the State Government to lay down principles for the routes for plying of stage carriages.

17. Word ‘formulate’ has its origin from word ‘formulae’. Formulae means an exact method or form of words prescribed as a guide for thought, action, expression, or statement; fixed rule or set form. ” In legal terminology it has the sense of directions sent by the Magistrate to the Judge for the disposition of cases, with respect to which the legis actions (forms of actions) were inadequate.

18. Word ‘formulate’ thus is to be understood as to express in a formula, or as a formula, o; to put or state in exact, concise and systematic form.

19. Thus taking an over all view of Section 68 (3) and the practical aspect of the provisions (c-a) there should be no iota of doubt that the power of creation of route for plying of stage carriages now vests with the S. T. A. on the principles and formulae which the State Government may fix in that regard. This interpretation has to be giver to give purpose to the amendment which has been brought about by the Legislature in Section 68 (3) of the Act otherwise it carries no meaning and purpose of the amendment becomes itiose.

20. The interpretation which has been given to sub-clause (c-a) of Clause (3) further gets strength from the wording of clause (4) thereof which empowers the S. T. A. to issue directions and orders to any R. T. A. and such R. T. A, is under legal obligation to give effect to those orders or directions of the S. T. A. and shall be guided by the said directions provided the directions which have been issued by the S. T. A. are such which relate to discharge of its functions and powers under clause (3) of Sec. 68 and the directions so issued are within the conditions prescribed therein.

21. A joint reading of clauses (3) and (4) of Section 68 of 1988 Act would suggest that power to create route with effect from 14-11-1994 vests in the S. T. A. with the condition that it will be done on the principles laid down by the State Government. By no stretch of imagination the power in this respect can be assumed in favour of the R. T. A, in that case the placement of the provision in sub-clause (c-a) of clause (2; of Section 68 carries no sense. The Courts cannot give such interpreta tion to a provision which will distroy the purpose for which the Legislature made the provision.

22. In the present case the route, on which permit was granted and for which application for grant of permit was made by opposite-parties 4 to 21, is obviously a new route. The R. T. A. by passing the impugned resolution on 2-6-1995 created the new route and by the same resolution also granted stage carriage permits to the said respondents, though the part of the resolution in so far as it relates to the grant of permits is concerned has been set aside by the S. TA/s order dated 23-2-96 the remaining part of it in so far as it relates to creation of the new route is concerned has been upheld by that very order of the S. T. A.

23. In view of the interpretation given to the provisions in clauses (3) and (4) of Section 68 of the 1988 Act, in my opinion, both R. T. A. and S. TA erred respectively in creating the new route and upholding its creation by the R. TA.

24. So far plea of respondents about maintainability of the writ petition at the instance of petitioner is concerned that to has too no merit.

25. Petitioner is holder of stage carriage permit on the old route on part of which (for about 17 kms.) the new route overlaps for this reason the petitioner has right to challenge the illegal grant of permit by the Regional Transport Authority, on the new route. The petitioner accordingly filed revision before the S. T. A. challenging (a) creation of new route by the Regional Transport Authority and (b) grant of permit on that route to respondents 4 to 21.

26. Having failed to get the relief from S. T. A. in so far as creation of the new route was concerned petitioner exercised her right to invoke extraordinary writ juris diction of this Court to get rid of the illegal order of the Regional Transport Authority inasmuch as after dismissal of her revision by the S. T. A. in so far as it related to orders of the Regional Transport Authority creating the new route, she was left with the no other legal remedy. Therefore, in my opinion, the writ petition by petitioner is maintainable and the objection taken against its maintainability by respondents is wholly misconceived and lacks merit.

27. Writ petition is accordingly allowed and the orders passed by the Regional Transport Authority vide resolution dated 2-6-1995 and by the S. TA. dated 23-1-1996 (filed respectively in Annexures-2 and 9 to the writ petition), so far as it relates to creation of the new route is concerned, are quashed; costs on parties. Petition allowed.

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Leave granted.

The qualified notice issued to the respondents indicated that this Court proposed to grant leave against the impugned judgment and order of the High Court and on allowing the appeal, was expecting to remit the matter back to the file of the High Court for disposal of the matter on its merits. The respondents’ learned counsel has been confronted with the proposition that though the High Court. could have dismissed the appeal in default in the absence of the appellants’ counsel, it could not have adverted to the merits of the case. Here, the High Court has recorded that all relevant aspects of the matter have been taken into account in order to hold that there was no available ground for interference with the decision of the Trial Court. This was an exercise with which the High Court should have been well-advised not to indulge in at the stage or Order 41 Rule 17 CPC. The Explanation to Order 41 Rule 17(1) CPC says that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. The High Court having transgressed that limit, we have therefore no option but to allow the appeal. set aside the impugned judgment and order of the High Court and put the matter back to its file for fresh disposal in accordance with law.
Ordered accordingly. No costs.

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BENCH: VERMA, JAGDISH SARAN (J) RAY, G.N. (J) SINGH N.P. (J) FAIZAN UDDIN (J) NANAVATI G.T. (J)
CITATION: 1996 AIR 946 1996 SCC (2) 648 JT 1996 (3) 339 1996 SCALE (2)881

JUDGMENT:
With
CRIMINAL APPEAL NO. 167 OF 1984
Surat Lal
V.
Raj Kumar & Ors.
With
CRIMINAL APPEAL NO. 279 OF 1984
Smt. Harbans Singh & Anr.
V.
The State Of Punjab
With
CRIMINAL APPEAL NO 363 OF 1996
(arising out of SLP(Crl.) No.2944 of 1994)
Chandrabhushan
V.
The State of Maharashtra
With
CRIMINAL APPEAL NO. 364 OF 1996
(arising out of SLP(Crl.) No.2943 Of 1995)
Dilbagh Singh & Ors.
V.
The State of Himachal Pradesh
And
CRIMINAL APPEAL No. 365 OF 1996
(arising out of SLP(Crl.) No.4193 of 1995)
Lokendra Singh
V.
The State of Madhya Pradesh

J U D G M E N T

J.S. VERMA,J.
Leave granted in special leave petitions.
The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 306, Indian Penal Code, 1860 (for short “IPC”) and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in default, further R.I. for nine months, for abetting the commission of suicide by Kulwant Kaur. On appeal to the High Court, the conviction of both has been maintained but the sentence of Gian Kaur alone has been reduced to R.I. for three years. These appeals by special leave are against their conviction and sentence under Section 306, IPC.

The conviction of the appellants has been assailed, inter alia, on the ground that Section 306, IPC is unconstitutional. The first argument advanced to challenge the constitutional validity of Section 306, IPC rests on the decision in P. Rathinam vs. Union of India and Anr., 1994) SCC 394, by a Bench of two learned Judges of this Court wherein Section 309, IPC has been held to be unconstitutional as violative of Article 21 of’ the Constitution. It is urged that right to die’ being included in Article 21 of the Constitution as held in P. Rathinam declaring Section 309, IPC to be unconstitutional, any person alletting the commission of suicide by another is merely assisting in the enforcement of the fundamental right under Article 21; and, therefore, Section 306. IPC penalising assisted suicide is equally violative of Article 21. This argument, it is urged, is alone sufficient to declare that Section 306, IPC also is unconstitutional being violative of Article 21 of the Constitution.

One of the points directly raised is the inclusion of the ‘right to die’ within the ambit of Article 21 of the Constitution, to contend that any person assisting the enforcement of the ‘right to die’ is merely assisting in the enforcement of the fundamental right under Article 21 which cannot be penal; and Section 306, IPC making that act punishable, therefore, violates Article 21. In view of this argument based on the decision in P. Rathinam, a reconsideration of that decision is inescapable.

In view of the significance of this contention involving a substantial question of law as to the interpretation of Article 21 relating to the constitutional validity of Section 306, I.P.C. which requires reconsideration of their decision in P.Rathinam, the Division Bench before which these appeals came up for hearing has referred the matter to a Constitution Bench for deciding the same. This is how the matter comes before the Constitution Bench.

In addition to the learned counsel for the parties the learned Attorney General of India who appeared in response to the notice, we also requested Shri Fali S. Nariman and Shri Soli J. Sorabjee, Senior Advocates to appear as amicus curiae in this matter. All the learned counsel appearing before us have rendered great assistance to enable us to decide this ticklish and sensitive issue.

We may now refer to the submissions of the several learned counsel who ably projected the different points of view.

Shri Ujagar Singh and Shri B.S. Malik appeared in these matters for the appellants to support the challenge to the constitutional validity of Sections 306 and 309, IPC. Both the learned counsel counsel contended that Section 306 as well as Section 309 are unconstitutional. Both of them relied on the decision in P. Rathinam. However, Shri Ujagar Singh supported the conclusion in P. Rathinam of the constitutional invalidity of Section 309, IPC only on the ground of violation of Article 14 and not Article 21. Shri B.S. Malik contended euthanasia is not relevant for deciding the question of constitutional validity of Section 309. He submitted that Article 21 cannot be construed to include within it the so called ’right to die’ since Article 21 guarantees protection of life and liberty and not its extinction. He submitted that Section 309 does not violate even Article 14 since the provision of sentence therein gives ample discretion to apply that provision with compassion to an unfortunate victim of circumstances attempting to commit suicide. Shri Nariman referred to the reported decisions to indicate that the enforcement of this provision by the courts has been with compassion to ensure that it is not harsh in operation. Shri Nariman submitted that the decision in P. Rathinam requires reconsideration as it is incorrect. Shri Soli J. Sorabjee submitted that Section 306 can survive independently of Section 309, IPC as it does not violate either Article 14 or Article 21. Shri Sorabjee did not support the construction made of Article 21 in P. Rathinam to include therein the ’right to die’ but he supported the conclusion that Section 309 is unconstitutional on the ground that it violates Article 14 of the Constitution. Shri Sorabjee submitted that it has been universally acknowledged that a provision to punish attempted suicide is monstrous and barbaric and, therefore, it must be held to be violative of Article 14 of the Constitution. Shri Sorabjee’s argument, therefore, is that Section 306, IPC must be upheld as constitutional but Section 309 should be held as unconstitutional, not as violative of Article 21 as held in P. Rathinam but being violative of Article 14 of the Constitution. He also sought assistance from Article 21 to support the argument base Article 14.

At this stage, it would be appropriate to refer to the decisions wherein the question of constitutional validity of Section 309, IPC was considered.

Maruti Shri Pati Dubal, Vs. State of Maharashtra, 1987 Crl.L.J.743, is the decision by a Division Bench of the Bombay High Court. In that decision, P.B.Sawant, J., as he then was, speaking for the Division Bench held that Section 309 IPC is violative of Article 14 as well as Article 21 of the Constitution. The provision was held to be discriminatory in nature and also arbitrary so as to violate the equality guaranteed by Article 14. Article 21 was construed to include the right to die’, or to terminate one’s own life. For this reason it was held to violate Article 21 also.

State Vs. Sanjay Kumar Bhatia, 1985 Crl.L.J.931, is the decision of the Delhi High Court. Sachar, J., as he then was, speaking for the Division Bench said that the continuance of Section 309 IPC is an anachronism unworthy of human society like ours. However, the question of its constitutional validity with reference to any provision of the Constitution was not considered. Further consideration of this decision is, therefore, not necessary.

Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, 1988 Crl.L.J.549, is the decision by a Division Bench of the Andhra Pradesh High Court. The challenge to the constitutional validity of Section 309 IPC was rejected therein. The argument that Article 21 includes the right to die’ was rejected. It was also pointed out by Amarethwari, J. speaking for the Division Bench that the Courts have sufficient power to see that unwarranted harsh treatment orprejudice is not meted out to those who need care and attention, This negatived the suggested violation of Article 14.

The only decision of this Court is P.Rathinam by a Bench of two learned Judges. Hansaria, J. speaking for the Division Bench rejected the challenge to the constitutional validity of Section 309 based on Article 14 but upheld the challenge on the basis of Article 21 of the Constitution. The earlier decisions of the Bombay High Court and the Andhra Pradesh High Court were considered and agreement was expressed with the view taken by the Andhra Pradesh High Court as regards Section 309 qua Article 14. The decision then proceeds to consider the challenge with reference to Article 21 of the Constitution. It was held that Article 21 has enough positive content in it so that it also includes the ’right to die’ which inevitably leads to the right to commit suicide. Expressing agreement with the view of the Bombay High Court in respect of the content of Article 21, it was held as under :

’Keeping in view all-the above, we state that right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life.”( Page 410 )

The conclusion of the discussion was summarised as under:
“On the basis of what has been held and noted above, we state that Section 309 of the Penal Code deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the persons concerned is not called for.

We, therefore, hold that Section 309 violates Article 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanization, which is a need of the day, but of globalization also, as by effacing Section 309, we would be attuning this part of our criminal law to the global wavelength.”( Page 429 )

At this stage it may be mentioned that reference has been made in P.Rathinam and the Bombay High Court decision to the debate relating to euthanasia, the sociological and psychological factors contributing to suicidal tendencies and the global debate on the desirability of not punishing ’attempt to commit suicide’. The absence of provisions to punish attempted suicide in several jurisdictions has also been noticed. The desirability of attempted suicide not being made a penal offence and the recommendation of the Law Commission to delete Section 309 from the Indian Penal Code has also been adverted to. We may refer only to the recommendation contained in the 42nd Report (1971) of the Law Commission of India which contains the gist of this logic and was made taking into account all these aspects. The relevant extract is, as under :

“16.31 Section 309 penalizes an attempt to commit suicide. It may be mentioned that suicide was regarded as permissible in some circumstances in ancient India. In the Chapter on “The hermit in the forest”, Manu’s Code (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204,J Shlokas 31 ad 32) says
“31. Or let him walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest.

31. A Brahmana having got rid of his body by one of those modes (i.e. drowning, precipitating burning or starving) practised by the great sages, is exalted in the world of Brahamana, free from sorrow and fear”.

Two commentators of Manu, Govardhana and Kulluka (See Medhatithi’s commentary on Manu), say that a man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune, and that, because it is taught in the Sastras, it is not opposed to the Vedic rules which forbid suicide (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204,footnote 31). To this Max Muller adds a note as follows :- (See : Ibid)

“From the parallel passage of Apas tambha II, 23, 2, it is, however, evident that a voluntary death by starvation was considered the befitting conclusion of a hermit’s life. The antiquity and general prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it particularly meritorious.”16.32 Looking at the offence of attempting to commit suicide, it has been observed by an English writer: (See : H.Romilly Fedden : Suicide (London, 1938), page 42).

“It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation.”Acting on the view that such persons deserve the active sympathy of society and not condemnation or punishment, the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence. 16.33 We included in our Questionnaire the question whether attempt to commit suicide should be punishable at all. Opinion was more or less equally divided. We are, however definitely of the view that the penal Provision is harsh and unjustifiable and it should be repealed.”(emphasis supplied)

A Bill was introduced in 1972 to amend the Indian Penal Code by deleting Section 309. However, the Bill lapsed and no attempt has been made as yet to implement that recommendation of the Law Commission.

The desirability of retaining Section 309 in the Statute is a different matter and non-sequitur in the context of constitutional validity of that provision which has to be tested with reference to some provision in the Constitution of India. Assuming for this purpose that it may be desirable to delete Section 309 from the Indian Penal Code for the reasons which led to the recommendation of the Law Commission and the formation of that opinion by persons opposed to the continuance of such a provision, that cannot be a reason by itself to declare Section 309 unconstitutional unless it is held to be violative of any specific provision in the Constitution. For this reason, challenge to the constitutional validity of Section 309 has been made and is also required to be considered only with reference to Articles 14 and 21 of the Constitution. We, therefore, proceed now to consider the question of constitutional validity with reference to Articles 14 and 21 of the Constitution. Any further reference to the global debate on the desirability of retaining a penal provision to punish attempted suicide is unnecessary for the purpose of this decision. Undue emphasis on that aspect and particularly the reference to euthanasia cases tends to befog the real issue of the constitutionality of the provision and the crux of the matter which is determinative of the issue.

In P. Rathinam it was held that the scope of Article 21 includes the ’right to die’. P. Rathinam held that Article 21 has also a positive content and is not merely negative in its reach. Reliance was placed on certain decisions to indicate the wide ambit of Article 21 wherein the term life’ does not mean ’mere animal existence’ but right to live with human dignity’ embracing quality of life. Drawing analogy from the interpretation of freedom of speech and expression’ to include freedom not to speak, freedom of association and movement’ to include the freedom not to join any association or to move anywhere, freedom of business’ to include freedom not to do business, it was held in P. Rathinam that logically it must follow that right to live would include right not to live, i.e., right to die or to terminate one’s life. Having concluded that Article 21 includes also the right to die, it was held that Section 309. IPC was violative of Article 21. This is the only basis in P. Rathinam to hold that Section 309, IPC is unconstitutional. ’Right to die’ – Is it included in Article 21?

The first question is : Whether, the scope of Article 21 also includes the ’right to die’ ? Article 21 is as under:
Article 21

“21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”

A significant part of the judgment in P. Rathinam on this aspect, is as under:

“If a person has a right to live, question is whether he has right not to live. The Bombay High Court stated in paragraph 10 of its judgment that as all the fundamental rights are to be read together, as held in R.C. Cooper v. Union of India what is true of one fundamental right is also true Of another fundamental right. It was then stated that is not, and cannot be, seriously disputed that fundamental rights have their positive as well as negative aspects. For example, freedom of speech and expression includes freedom not to speak. Similarly, the freedom of association and movement includes freedom not to join any association or move anywhere. So too, freedom Of business includes freedom not to do business. It was, therefore, stated that logically it must follow that the right to live will include right not to live, i.e.,* right to die or to terminate one’s life.

Two of the abovenamed and critics of the Bombay judgment have stated that the aforesaid analogy is “misplaced”, which could have arisen on account of superficial comparison between the freedoms, ignoring the inherent difference between one fundamental right and ,the other. It has been argued that the negative aspect of the right to live would mean the end or extinction of the positive aspect, and so, it is not the suspension as such of the right as is in the case of ’silence’ or ’nonassociation’ and ’no movement’. It has also been stated that the right to life stands on different footing from other rights as all other rights are derivable from the right to live.

The aforesaid criticism is only partially correct inasmuch as though the negative aspect may not be inferable on the analogy of the rights conferred by different clauses of Article 19, one may refuse to live, if his life be not according to the person concerned worth living or if the richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasures or happiness, he has; some- thing to achieve beyond this life. This desire for communion with God may very rightly lead even a very healthy mind to think that he would forego his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.
xxx xxx xxx
Keeping in view all the above, we state that right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life.

In this context, reference may be made to what Alan A.Stone, while serving as Professor of Law and Psychiatry in Harvard University stated in his 1987 Jonas Robitscher Memorial Lecture in Law and Psychiatry, under the caption “The Right to Die: New Problems for Lawa and Medicine and Psychiatry. (This lecture has been printed at pp.627 to 643 of Emory Law Journal, Vol.37, 1988). One of the basic theories of the lecture of Professor Stone was that right to die inevitably leads to the right to commit suicide.”(emphasis supplied) (Pages 409-410)

From the above extract, it is clear that in substance the reason for that view is, that if a person has a right to live, he also has a right not to live. The decisions relied on for taking that view relate to other fundamental rights which deal with different situations and different kind of rights. In those cases the fundamental right is of a positive kind, for example, freedom of speech, freedom of association, freedom of movement, freedom of business etc. which were held to include the negative aspect of there being no compulsion to exercise that right by doing the guaranteed positive act. Those decisions merely held that the right to do an act includes also the right not to do an act in that manner. It does not flow from those decisions that if the right is for protection from any intrusion thereof by others or in other words the right has the negative aspect of not being deprived by others of its continued exercise e.g. the right to life or personal liberty, then the converse positive act also flows therefrom to permit expressly its discontinuance or extinction by the holder of such right. In those decisions it is the negative aspect of the right that was invoked for which no positive or overt act was required to be done by implication. This difference in the nature of rights has to be borne in mind when making the comparison for the application of this principle.

When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the ’right to life’ under Article 21. The significant aspect of ’sanctity of life’ is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in protection of life’. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to die’ as a part of the fundamental right guaranteed therein. ’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life’. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to freedom of speech’ etc. to provide a comparable basis to hold that the ’right to life’ also includes the ’right to die’. With respect, the comparison is inapposite, for the reason indicated in the context of Article 21. The decisions relating to other fundamental rights wherein the absence of compulsion to exercise a right was held to be included within the exercise of that right, are not available to support the view taken in P. Rathinam qua Article 21.

To give meaning and content to the word ’life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The right to die’, if any, is inherently inconsistent with the right to life’ as is death’ with life’.

Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of ’sanctity of life’ or the right to live with dignity’ is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life’ therein includes the right to die’. The right to life’ including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the ’right to die’ with dignity at the end of life is not to be confused or equated with the right to die’ an unnatural death curtailing the natural span of life.

A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the ’right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life.

We are, therefore, unable to concur with the interpretation of Article 21 made in P. Rathinam. The only reason for which Section 309 is held to be violative of Article 21 in P. Rathinam does not withstand legal scrutiny. We are unable to hold that Section 309 I.P.C. is violative of Article 21.

The only surviving question for consideration now is whether Section 309 IPC is violative of Article 14, to support the conclusion reached in P.Rathinam.

The basis of the decision in P. Rathinam, discussed above, was not supported by any of the learned counsel except Shri B.S. Malik. On the basis of the decision in P.Rathinam it was urged that Section 306 also is violative of Article 21, as mentioned earlier. On the view we have taken that Article 21 does not include the right to die’ as held in P. Rathinam, the first argument to challenge the constitutional validity of Section 306, IPC also on that basis fails, and is rejected.

Article 14 – Is it violated by Section 309, I.P.C. ?

We would now consider the constitutional validity of Section 309 with reference to Article 14 of the Constitution. In substance, the argument of Shri Ujagar Singh, Shri B.S. Malik and Shri Soli J. Sobrajee on this point is that it is a monstrous and barbaric provision which violates the equality clause being discriminatory and arbitrary. It was contended that attempted suicide is not punishable in any other civilized society and there is a strong opinion against the retention of such a penal provision which led the Law Commission of India also to recommend its deletion. Shri Sorabjee contended that the wide amplitude of Article 14 together with the right to live with dignity included in Article 21, renders Section 309 unconstitutional. It is in this manner, invoking Article 21 limited to life with dignity (not including therein the right to die’) that Shri Sorabjee refers to Article 21 along with Article 14 to assail the validity of Section 309, IPC. The conclusion reached in P. Rathinam is supported on this ground.

We have formed the opinion that there is no merit in the challenge based even on Article 14 of the Constitution. The contention based on Article 14 was rejected in P. Rathinam also. It was held therein as under:

“The Bombay High Court held Section 309 as violation of Article 14 also mainly because of two reasons. First, which act or acts in series of acts will constitute attempt to suicide, where to draw the line, is not known – some attempts may be serious while others non-serious. It was stated that in fact philosophers, moralists and sociologists were not agreed upon what constituted suicide. The want of plausible definition or even guidelines, made Section 309 arbitrary as per the learned Judges. Another reason given was that Section 309 treats all attempts to commit suicide by the same measure without referring to the circumstances in which attempts are made.

The first of the aforesaid reasons is not sound, according to us, because whatever differences there may be as to what constitutes suicide, there is no doubt that suicide is intentional taking of one’s life, as stated at p.1521 of Encyclopaedia of Crime and Justice, Vol. IV, 1983 Edn. Of course, there still exists difference among suicide researchers as to what constitutes suicidal behavior, for example, whether narcotic addiction, chronic alcoholism, heavy cigarette smoking, reckless driving, other risk-taking behaviors are suicidal or not. It may also be that different methods are adopted for committing suicide, for example, use of fire-arm, poisoning especially by drugs, overdoses, hanging, inhalation of gas. Even so, suicide is capable of a broad definition, as has been given in the aforesaid Webster’s Dictionary. Further, on a prosecution being launched it is always open to an accused to take the plea that his act did not constitute suicide where-upon the court would decide this aspect also.

Insofar as treating of different attempts to commit suicide by the same measure is concerned, the same also cannot be regarded as violative of Article 14, inasmuch as the nature, gravity and extent of attempt may be taken care of by tailoring the sentence appropriately. It is worth pointing out that Section 309 has only provided the maximum sentence which is up to one year. It provides for imposition of fine only as a punishment. It is this aspect which weighed with the Division Bench of Andhra Pradesh High Court in its aforesaid decision to disagree with the Bombay view by stating that in certain cases even Probation of Offenders Act can be pressed into service, whose Section 12 enables the court to ensure that no stigma or disqualification is attached to such a person.

We agree with the view taken by the Andhra Pradesh High Court as regards Section 309 qua Article 14.”
( Page 405 )
(emphasis supplied)

With respect, we are in agreement with the view so taken qua Article 14, in P. Rathinam.
We have already stated that the debate on the desirability of retaining such a penal provision of punishing attempted suicide, including the recommendation for its deletion by the Law Commission are not sufficient to indicate that the provision is unconstitutional being violative of Article 14. Even if those facts are to weigh, the severity of the provision is mitigated by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory. There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under Section 309, IPC. This aspect is noticed in P. Rathinam for holding that Article 14 is not violated.

The reported decisions show that even on conviction under Section 309, IPC, in practice the accused has been dealt with compassion by giving benefit under the Probation of Offenders Act, 1958 or Section 562 of the Code of Criminal Procedure, 1908 corresponding to Section 360 of the Criminal Procedure Code, 1973 : Mt. Barkat Vs. Emperor, AIR 1934 Lah. 514; Emperor Vs. Dwarka Pooja, 14 Bom.L.R. 146; Emperor Vs. Mt. Dhirajia, AIR 1940 All. 486; Ram Sunder Vs. State of Uttar Pradesh, AIR 1962 All. 262; Valentino Vs. State, AIR 1967 Goa 138; Phulbhai Vs. State of Maharashtra, 1976 Crl. L.J. 1519; Radharani Vs.State of M.P., AIR 1981 SC 1776; Rukhmina Devi Vs. State of U.P., 1988 Crl.L.J. 548. The above quoted discussion in P. Rathinam qua Article 14 is sufficient to reject the challenge based on Article 14.

We may briefly refer to the aid of Article 21 sought by Shri Sorabjee to buttress the challenge based on Article 14. We have earlier held that right to die’ is not included in the ‘right to life’ under Article 21. For the same reason, right to live with human dignity’ cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death. We do not see how Article 21 can be pressed into service to support the challenge based on Article 14. It cannot, therefore, be accepted that Section 309 is violative either of Article 14 or Article 21 of the Constitution.

It follows that there is no ground to hold that Section 309, IPC is constitutionally invalid. The contrary view taken in P. Rathinam on the basis of the construction made of Article 21 to include therein the right to die’ cannot be accepted by us to be correct. That decision cannot be supported even on the basis of Article 14. It follows that Section 309, IPC is not to be treated as unconstitutional for any reason.

Validity of Section 306 I.P.C.
The question now is whether Section 306, IPC is unconstitutional for any other reason. In our opinion, the challenge to the constitutional validity of Section 309, IPC having been rejected, no serious challenge to the constitutional validity of Section 306 survives. We have already rejected the main challenge based on P. Rathinam on the ground that ‘right to die’ is included in Article 21.

It is significant that Section 306 enacts a distinct offence which is capable of existence independent of Section 309, IPC. Sections 306 and 309 read as under:
Section 306:
“306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years. and shall also be liable to fine.”
Section 309:
“309. Attempt to commit suicide- Whoever attempts to commit suicide and does any act towards the commission of such offence. shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”

Section 306 prescribes punishment for abetment of suicide’ while Section 309 punishes attempt to commit suicide’. Abetment of attempt to commit suicide is outside the purview of Section 306 and it is punishable only under Section 309 read with Section 107, IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there, provides for the punishment Of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision. The arguments which are advanced to support the plea for not punishing the person who attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt. This plea was strongly advanced by the learned Attorney General as well as the amicus curiae Shri Nariman and Shri Sorabjee. We find great force in the submission.

The abettor is viewed differently, inasmuch as he abets the extinguishment of life of another persons and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision. The Suicide Act, 1961 in the English Law contains the relevant provisions as under :

“1. Suicide to cease to be a crime The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.
—————————-
NOTE Suicide. “Felo de se or suicide is, where a man of the age of discretion, and compos mentis, voluntarily kills himself by stabbing, poison or any other way” and was a felony at common law: see 1 Hale PC 411-419, This section abrogates that rule of law. but, by virtue of s 2(1) Post, a person who aids abets, counsels or Procures the suicide or attempted suicide of another is guilty of a statutory offence.

The requirement that satisfactory evidence of suicidal intent is always necessary to establish suicide as a cause of death is not altered by the passing of this Act : see R v Cardiff Coroner, ex p Thomas [1970] 3 All ER 469, [1970] 1 WLR 1475.
—————————
2. Criminal liability for complicity in another’s suicide (1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”(emphasis supplied)

This distinction is well recognized and is brought out in certain decisions of other countries. The Supreme Court of Canada in Rodriguez v. B.C. (A.G.), 107 D.L.R. (4th Series) 342, states as under :-

“Sanctity of life, as we will see, has been understood historically as excluding freedom of choice in the selfinfliction of death and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the state to regulate the involvement Of others in exercising power over individuals ending their lives.”(at page 389)

Airedale N.H.A. Trust v. Bland, 1993 (2) W.L.R. 316 (H.L.), was a case relating to withdrawal of artificial measures for continuance of life by a physician. Even though it is not necessary to deal with physician assisted suicide or euthanasia cases, a brief reference to this decision cited at the Bar may be made. In the context of existence in the persistent vegetative state of no benefit to the patient, the principle of sanctity of life, which it is the concern of the State, was stated to be not an absolute one. In such cases also, the existing crucial distinction between cases in which a physician decides not to provide, or to continue to provide, for his patient, treatment or care which could or might prolong his life, and those in which he decides, for example, by administering a lethal drug, actively to bring his patient’s life to an end, was indicated and it was then stated as under :-

“……….But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be : see Reg. v. Cox (unreported), 18 September, 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law. and can, if enacted, ensure that such legalized killing can only be carried out subject to appropriate supervision and control. ……..”
(emphasis supplied)
(at page 368)

The desirability of bringing about such a change was considered to be the function of the legislature by enacting a suitable law providing therein adequate safeguards to prevent any possible abuse.

The decision of the United States Court of Appeals for the Ninth Circuit in Compassion in Dying vs. State of Washington, 49 F.3d 586, which reversed the decision of United States District Court. W.D. Washington reported in 850 Federal Supplement 1454, has also relevance. The constitutional validity of the State statute that banned physician assisted suicide by mentally competent. terminally ill adults was in question. The District Court held unconstitutional the provision punishing for promoting a suicide attempt. On appeal. that judgment was reversed and the constitutional validity of the provision was upheld.

This caution even in cases of physician assisted suicide is sufficient to indicate that assisted suicides outside that category have no rational basis to claim exclusion of the fundamental of sanctity of life. The reasons assigned for attacking a provision which penalizes attempted suicide are not available to the abettor of suicide or attempted suicide. Abetment of suicide or attempted suicide is a distinct offence which is found enacted even in the law of the countries where attempted suicide is not made punishable. Section 306 I.P.C.enacts a distinct offence which can survive independent of Section 309 in the I.P.C. The learned Attorney General as well as both the learned amicus curiae rightly supported the constitutional validity of Section 306 I.P.C.

The Bombay High Court in Naresh Marotrao Sakbre and Another vs. Union of India and others, 1895 Crl.L.J. 96, considered the question of validity of Section 306 I.P.C. and upheld the same. No decision holding Section 306 I.P.C. to be unconstitutional has been cited before us. We find no reason to hold either Section 309 or Section 306 I.P.C. to be unconstitutional.

For the reasons we have given, the decisions of the Bombay High Court in Maruti Shri Pati Dubal vs. State of Maharashtra, 1987 Crl. L.J. 743, and of a Division Bench of this Court in P. Rathinam vs. Union of India and Anr., 1994 (3) SCC 394, wherein Section 309 I.P.C. has been held to be unconstitutional, are not correct. The conclusion of the Andhra Pradesh High Court in Chenna agadeeswar and another vs. State of Andhra Pradesh, 1988 Crl.L.J. 549, that Section 309 I.P.C. is not violative of either Article 14 or Article 21 of the Constitution is approved for the reasons given herein. The questions of constitutional validity of Sections 306 and 309 I.P.C. are decided accordingly, by holding that neither of the two provisions is constitutionally invalid.

These appeals would now be listed before the appropriate Division Bench for their decision on merits in accordance with law treating Sections 306 and 309 I.P.C. to be constitutionally valid.

The post Smt. Gian Kaur Vs The State of Punjab appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
ASHWANI KUMAR & ORS. …PETITIONER
Vs.
STATE OF BIHAR & ORS. …RESPONDENT
DATE OF JUDGMENT: 16/12/1996
BENCH: S.B. MAJMUDAR, SUJATA V. MANOHAR
WITH
[C.A. Nos. 10760-11058/95; 11062-66/95; C.A. No. 16746 of 1996 (arising out of S.L.P.(C) No.6174/92; C.A. No. 16747 of 1996 (arising out of S.L.P.(C) No.14275/94; C.A. No. 16748 of 1996 (arising out of S.L.P.(C) No.7410/95; and C.A., No. 16749 of 1996 (arising out of S.L.P.(C) No. 24553 (C.C. 4638/95]

J U D G M E N T

S.B. Majmudar. J.

Leave granted in S.L.P.(C) Nos.6174 of 1992, 14275 of 1994. 7410 of 1995 and S.L.P.(C) No. 24553 (CC 4638/95).

This group of appeals, on grant of special leave to appeal against the common judgment of Patna High Court in CWJC No.5163 of 1993 and batch decided on 6th May 1994, has been placed before this larger Bench by the orders of Hon’ble the Chief Justice on account of difference of opinion between two learned judges of this Court, K.

Ramaswamy, J. and Hansaria, J., constituting the Division Bench which earlier heard this group of matters. Before the main points for difference are highlighted and the contentions of respective contesting parties are noted, it would be necessary to note at the outset the backdrop facts leading to these proceedings.

Backdrop Facts One Dr. A.A. Mallick, Deputy Director, Health Department of the Government of Bihar, was in charge of Tuberculosis for a number of years while he was working as a member of the medical service of the State of Bihar. He was Director of the Tuberculosis Centre at Patna. Eradication of Tuberculosis was taken up as a part of 20-Point Programme in planned expenditure. The activities in the Tuberculosis Centre at Patna were extended to various districts. Since Dr. Mallick happened to be the Director of the Centre, he was made Deputy Director of the Scheme. The Government had also issued directions to the District Medical Officers to abide by the instructions of Dr. Mallick in implementation of the programme. He was made the Chairman of Selection Committee constituted by the Government consisting of himself. Assistant Director of Pilaria and a senior officer representing Scheduled Castes/Scheduled Tribes to recruit 2250 class III and Class IV employees on posts created to implement the Scheme in addition to around 800 to 900 staff in Patna Centre in all categories. Taking advantage thereof, the undisputed fact is that, he appointed around 6000 (as found by the Committee) while the Government asserts them to be approximately 7000. Be that as it may, not less than 6000 persons were appointed by Dr. Mallick without any written orders. He directed many of them to be adjusted by transfer by District Medical Officers and some of them had produced fabricated appointment orders. He shuffled their payment of salaries by turns. Another device adopted in the macabre episode was to make the employees go on strike and when some sensitive M.L.As. raised the question, on the floor of the State Legislative Assembly, off illegal appointments made by Dr. Mallick, the Government initially posed the appointments to be legal and justified his action to be valid. Later, when facts themselves proved their faulty admission, they made amends before the Assembly and the Government made an elaborate statement apprising the House that the information furnished earlier was not correct.

Due to the agitation, the Director an Joint Secretary to the Government. Health Department had issued directions to regularise the services of daily-rated Class III and Class IV employees. Taking aid thereof, it is claimed that regularisation of many of them including most of the appellants, was made. When alarming bells rang around portals of Patna High Court by filing petitions under Article 226 of the Constitution seeking payment of salaries, the High Court, though initially in some cases directed to enquire into the cases and to pay salaries, later found it difficult to cope up with the situation. So an Enquiry Committee was constituted to find out whether the appointments made by Dr. Mallick were valid and whether salaries could be paid to such employees.

In the meanwhile, the Government also directed the Vigilance Department to enquire into the matter and on 7th May 1991, the Vigilance Department in its report pointed out that Dr. Mallick had violated the rules of recruitment and in collusion with other officers had appointed daily-rated Class III and Class IV employees. Pursuant to the direction of the High Court, a Screening Committee was constituted which sought to serve notice on the employees. When the Deputy Director went to the Centre at Patna to serve the notice on the employees, he was min-handled resulting in an ugly law and order situation. In consequence, notices were published on two different dates in different newspapers inviting submission of the claims by all the employees appointed by Dr. Mallick, together with supporting material justifying their appointments. Different dates of hearing by the Committee were staggered. About 987 employees appeared before the Committee and submitted their statements. In the meanwhile, relevant records were burnt out. The High Power Committee in the absence of authentic record was constrained to depend upon the statements made by the employees before it. After hearing them and considering the record placed before it, the Committee found that Dr. Mallick did not make any order of appointment on daily wage basis by following due procedure. It found it difficult to accept even the orders of confirmation. In that view, the Committee found that the initial appointments made by Dr. Mallick were in violation of the instructions issued by the Government.

Therefore, they were found to be illegal appointments. The Committee also found that Dr. Mallick circumvented the rules by making adjustment by transfer without verifying the qualifications, eligibility or disclosing previous places where at the candidates appointed had worked and dates of their appointment and by transferring them to the respective places by cyclostyled orders. He directed the District Medical Officers to verify the credentials and then to appoint them temporarily. The Committee also noted that the third category was of persons who were appointed by producing fabricated orders of appointment. Consequently, it directed to cancel all the appointments made by Dr. Mallick.

On receipt of the report and on its consideration, the Government found them to be invalid and illegal and all the appointments were canceled. When their legality was questioned in the writ petitions filed under Article 226, the High Court upheld the Government action. Thus these appeals by special leave.

When this group of appeals was finally heard by the Division Bench of this Court consisting of K. Ramaswamy, J.

and Hansaria, J., as noted earlier, on hearing the arguments of learned counsel appearing for the contesting parties, there arose a difference of opinion between the two learned judges. K. Ramaswamy, J., came to the following conclusions:

1. Even though it was open to the Government to create posts or to fill up the posts independently of existence of any law or statutory rules made under the proviso to Article 309 of the Constitution to that effect, the said exercise had to be consistent with the right guaranteed under Articles 14 and 16(1) of the Constitution of India.

2. When planned expenditure is required to be spent, budgetary sanction is mandatory. In the present cases when some of the employees were sent for one month’s training posts were created and budgetary sanction was obtained. The cases at hand were unique and the device adopted by Dr. Mallick was in flagrant violation of all norms of administrative procedure known to law. He had given decent burial to procedure prescribed by the Government. Abusing the absolute power secured in his hands, he appointed 6000 persons at his whim and wagery.

3. Procedure for appointment to Class III and Class IV posts was given a go-by. Instead casual appointments were made without any letters of appointment to fill up even non-existing vacancies.

4. Existence of post or vacancy was a sine qua non for making appointments to such existing posts or vacancies and as there were no 6000 posts or vacancies available, the recruitment made by Dr. Mallick to these posts was patently illegal and without authority of law.

5. When initial appointments were in violation or in negation of the rules or in other words when there were no orders for appointment there would remain no question of regularisation of such initially illegal appointments. To confer permanency of appointment to the posts by regularisation in violation of the executive instructions or rules is itself subversive of the procedure.

6. Without following due procedure prescribed under the circulars, regularisation of services of daily wage employees could not be effected.

7. Principles of natural justice were not required to be followed in the present cases. Even otherwise there was due compliance with these principles.

8. As all the appointments were made in flagrant breach of the procedure and the executive instructions and amounted to blatant abuse of the centralised power held by Dr. Mallick and subversive of discipline, it was futile to issue writs as prayed for.

9. However Ramaswamy, J. was inclined to issue 11 directions in para 36 of his judgment for future recruitment of class III and IV employees in the Tuberculosis Eradication Programme, providing certain safeguards for considering the feasibility of recruiting the present appellants on these posts.

In view of the aforesaid findings and conclusions K.

Ramaswamy, J. was inclined to dispose of the appeals by confirming, subject to the aforesaid directions, the order of the High Court dismissing the writ petitions.

On the other hand Hansaria, J., reached the following conclusions and findings :

1. For the purpose of recruiting Class III and Class IV employees in the 20-Point Programme the procedure prescribed by Office Memorandum dated 3rd December 1980 was not required to be followed.

2. It could not be said that the procedure visualised by Office Memorandum dated 3rd December 1980 was not followed at all while regularising the appellants.

3. Non-advertisement of posts in newspapers did not cause any infirmity to the regularisation.

4. Non-information to the Employment Exchange had caused no dent to the appointments.

5. The question of illegality in appointment of general candidates on the ground of non-reservation did not arise as the material showed that there was reservation of SC/ST candidates.

6. Material on record showed that in some cases regularisation was in pursuance of the recommendations of a properly constituted Selection Committee.

7. Merit list/panel was prepared in some cases pursuant to O.M. of 3rd December 1980. But it could not be said that it was done in all cases. However, there was no justification in finding infirmity in all the appointments because of lack of material on record.

8. Principles of natural justice were not fully compelled with before terminating the services of the appellants.

However, that had no nullifying effect so far as the present proceedings are concerned as they were heard by this Court and consequently on that ground termination orders could not be set aside.

9. Even though Dr. Mallick was not justified in giving direct appointment to about 6000 persons when there were only 2500 sanctioned posts, all the persons so employed hand not abetted, aided or instigated Dr.

Mallick in doing so, and, therefore, even though a wrong doer or a sinner has to be punished and also those who aid, abet or instigate them but not those regarding whom only a doubt existed.

10. About 2500 persons could have been appointed by Dr.

Mallick and as there was material on record to show that regular appointments had also been made (how many, we do not know) and as it is not possible to know who the regularly appointed persons were the appellants, whose number is 1363, may be among those who were regularly appointed.

Consequently in view of the aforesaid findings Hansaria, J. was inclined to hold that justice had to be tempered with mercy in the light of Article 21 of the Constitution of India and as it was doubtful whether these 1363 appellants could be said to have been irregularly appointed, termination orders qua them were required to be set aside. It was made clear by Hansaria, J., that the said order would not in any way be taken advantage of except by the 1363 appellants before the Court. As noted earlier it is this difference of opinion between the two learned judges constituting the Division Bench, that has triggered off the present proceedings before this larger Bench.

Rival Contentions Learned counsel for the appellants vehemently submitted that there was ample evidence on the record of these cases to show that Dr. Mallick was the appointing authority and was duly empowered to appoint Class III and Class IV employees on the programme regarding eradication of Tuberculosis which was taken up as a part of 20-Point Programme in the Planned Expenditure by the State of Bihar.

It was further contended that the Government Order of 3rd December 1980 did not apply to such appointments. That looking to the urgency of the Programme the appointments had to be made on a war-footing and that is how 6000 appointments were made by Dr. Mallick in due exercise of his authority so that the Tuberculosis Eradication Programme could be put on an effective and strong footing. It was further submitted that these were not posts born on any regular cadre in State Service and consequently the detailed method of recruitment for filling up vacancies for such a Programme was not required to be followed. It was next contended that Dr. Mallick had given due importance to the policy of reservation as applied by the State while effecting these appointments. That in any case these appointments on ad-hoc basis were ultimately duly approved by the State when the Committee constituted for the purpose had found them to be valid and accordingly the employees were regularised. That thereafter it was not open to the State of Bihar to nullify these appointments by one stroke of pen. Even that apart all the appointments effected by Dr.

Mallick which were about 6000, could not have been invalidated in a wholesale manner which was contrary to the basic principles of the natural justice. That the so-called hearing given by the Committee even prior to its constitution could not be said to be a hearing at all and hence termination orders were null and void. It was ultimately submitted that for no fault of theirs these employees who had continued for more than 10 years in service in many cases and who were even subsequently promoted could not have been removed wholesale and hence on the principle of fairness, equity and even invoking mercy jurisdiction of the Court they should have been continued in service. That, if at all, they were victims at the hands of Dr. Mallick but could not be said to be abetters and should have been dealt with in a humanitarian manner. It was contended that on the same lines on which this Court in the case of H.C. Puttaswamy & Ors. v. The Hon’ble Chief Justice of Karnataka High Court. Bangalore & Ors. JT 1990 (4) S 474 permitted the irregularly appointed employees to continue in service without a break, the present appellants also should be directed to be so continued in service after giving them reinstatement with all consequential benefits. Dr. Dhavan, learned senior counsel appearing for the appellants in appeals which were earlier delinked from this group but which were subsequently placed along with the group for disposal, namely, civil appeal arising out of S.L.P.(C) No.14275 of 1994 and C.A. Nos. 10811-28 of 1995, submitted that 8 employees in civil appeal arising out of S.L.P.(C) No. 14275 of 1994 were not appointed by Dr. Mallick but were appointed by Dr. Mithilesh Kumar and, therefore, their appointments stood on a separate footing and could not have been nullified by adopting the general yardstick for voiding all the appointments made by Dr. Mallick. So far as the Civil Appeals Nos. 10811-28 of 1995 were concerned Dr.

Dhavan submitted that appointments made by Dr. Mallick were in two phases, the first phase was reflected by the Government Order dated 25th March 1983 wherein Dr. Mallick had appointed number of employees under the Scheme. But the second phase started pursuant to the Government Order dated 31st January 1987 whereunder a programme was instituted for training Tuberculosis Attendants and Tuberculosis Assistants and once they were given training such candidates became entitled to be appointed on regular basis in the Programme and as they had been so trained there was nothing wrong in continuing them in service. Dr. Dhavan also submitted that the Tuberculosis Eradication Scheme under 20-point Programme was entirely a separate Scheme undertaken by the State of Bihar in collaboration with the Central Government wherein the expenses for the infrastructure were to be shared by the State Government as well as Central Government and there was no question of any posts being created in the regular service of the State. Under these circumstances the regiour of the procedure of recruitment to State service as laid down by the Notification to State service as laid down by the Notification of 3rd December 1980 could not be applied to fill up the vacancies on this Scheme. Consequently no fault could be found with the manner of recruitment adopted by Dr. Mallick especially when a Committee, duly constituted under the Scheme by the State Government, had cleared these appointments and directed regularisation of these ad hoc employees as initially appointed by Dr. Mallick, Dr. Dhavan further submitted that these posts where sanctioned from time to time by State Government. That there was nothing wrong with the regularisation of these employees and all of them could not have been terminated by one stroke of pen contrary to all the basic established principles of natural justice and fairplay. Ultimately it was contended that in any case by tempering justice with mercy these employees who have now become age-barred should not be thrown out of service after number of years when they had been recruited in service for no fault of theirs. It was, therefore, submitted by Dr. Dhavan towing the line of other learned advocates for the appellants that the appeals should be allowed and all the prayers put forward in the writ petitions filed in the High Court should be granted. In the written submissions filed in Civil appeal Nos. 10831-10985 of 1995 it was submitted that the 20-point programme announced by Government of India underscored the need for eradicating the dreaded disease Tuberculosis (T.B.). In Bihar State alone as per Government information in 1976 about half the population (current population 10 crores) was striken with T.B. and the annual death toll was feared to be in excess of 1 lakh with 3 Lakh new cases reported every year. It was in this background that the S.L.P. petitioners who numbered 581 were all appointed (initially ad-hoc/daily wagers) in Class III and Class IV posts in connection with the T.B. Eradication programme in the State of Bihar from the year 1980 onwards and were regularised on various dates thereafter (p. 146-166 S.L.P. paper book). By the additional affidavit dated 4.9.1994 particulars of the petitioners, their dates of ad-hoc/daily-rated appointments and their dates of regularisation, and (in many cases) subsequent promotion have been set out (pages 146-169 S.L.P. paper book). It was submitted that the initial appointments and regularisation of these employees were valid and proper. It was next submitted that by a letter dated 25th March 1988 the Joint Secretary (Health) confirmed and appointed Dr.

A.A. Mallick as ex-officio Chairman of the Selection Committee and by a directive dated 24th July 1984 the Joint Secretary had directed the said Dr. Mallick to regularise the appointments made by him and to the same effect was the subsequent letter dated 17th October 1984 to the Chairman, T.B. Hospital directing regularisation of the daily wagers.

In short similar contentions were sought to be raised in the written submissions as were advanced by learned advocates appearing for other appellants.

Shri Singh, learned counsel appearing for the respondent-State on the other hand submitted that all the initial appointments on ad hoc or daily-rated basis made by Dr. Mallick were patently unauthorised and illegal for the simple reason that though there were in all 2500 sanctioned posts, Dr. Mallick for the reasons best known to him thought it fit to appoint 6000 Class III and Class IV employees. He threw the established procedure for recruitment of such employees to the winds and in a most arbitrary manner adopting a policy of ‘pick and choose appointed these persons. These appointments were not backed up by financial budgets. They were totally unauthorised and could not have been countenanced at all. As there was nothing to show as to who could be fitted in against the sanctioned posts the State was justified on the recommendation of the Enquiry Committee to set aside all these appointments which were ex- officio contrary to the established norms of recruitment.

That as these appointments were illegal and void from their inception there was no question of regularising them and the so-called regularisation was wholly arbitrary, null and void and of no legal effect. That ample opportunity was given to these employees to put forward their contentions before the committee. Public notices were given inviting them to have their say be submitting all necessary datas before the Committee. Not only that but even 987 persons did appear before the committee. Therefore, there was no question of violation of principles of natural justice. It was next contended by Shri Singh that there is no question of tempering justice with mercy s all these incumbents were illegally appointed by Dr. Mallick and that it was impossible to decide in the absence of relevant material or data on record as to who were senior enough to be adjusted against the sanctioned 2500 posts out of the 6000 employees.

Hence the only solution to the problem was to nullify all the appointments and to start on a clean slate de novo. In reference to the contentions of learned counsel for the appellants placing reliance on decision of this Court in H.C. Puttaswamy (supra) it was submitted that in that case the initial appointments by the Chief Justice of Karnataka High Court were not illegal or unauthorised as the Chief Justice had enough financial power to create any number of posts on the High Court establishment. That what was voided was the method by which the employees recruited on the High Court establishment were subsequently transferred to the establishments of subordinate courts and under these peculiar circumstances the appointees were permitted to continue in service without break. That in the present case though Dr. Mallick was authorised to recruit staff on the Tuberculosis Eradication Scheme, as there were only 2500 sanctioned posts, the wholesale appointments of 6000 persons made by him were clearly illegal and an exercise in futility. It was next contended that even though these posts may not be posts born on the regular cadres in the State service they were certainly to be vacancies which were required to be supported by sufficient financial budgets and unless there were vacancies covered by the planned expenditure budgeted for the purpose, no such appointments could be effected. Under these circumstances such appointees who were illegal appointees from the very beginning could not have been regularised. So far as the submissions of Dr.

Dhavan were concerned it was submitted that there were no two phases in which appointments were made by Dr. Mallick.

So far as he was concerned there was only one phase of recruiting persons at his whims and fancies on vacancies which did not really exist and whatever training was given to these employees also remained an exercise in futility. So far as 8 employees covered by Civil Appeal arising out of S.L.P. (C) No. 14275 of 1994 were concerned it was submitted that Dr. Mithilesh Kumar was also directed to effect appointments under instructions of Dr. Mallick and hence their appointments also stood on the same footing on which direct appointees of Dr. Mallick stood and, therefore, suffered from the same vitiating consequences. It was accordingly submitted by Shri Singh that the appeals were required to be dismissed.

In the light of the aforesaid rival contentions the following points arise for our determination:

Points for determination

1. Whether the appointments of Class III and Class IV employees on the Tuberculosis Eradication Scheme as a part of 20-Point programme were legal and valid.

2. Whether the confirmation of these employees was legally justified.

3. Whether principles of natural justice were violated while terminating services of all these 6000 employees appointed by Dr. Mallick.

4. What relief, if any, can be granted to the appellants.

We shall deal with these points seriatim.

Point No. 1 So far as the initial appointments of 6000 Class III and Class IV employees by Dr. Mallick are concerned it has to be kept in view that Dr. Mallick was Director, Tuberculosis Centre at Patna. Eradication of tuberculosis was taken up as a part of 20-Point Programme under the Planned Expenditure. The activities of the Programme were extended to various districts. It cannot be disputed that Dr. Mallick was the appointing authority for these classes of employees who had to work on the Scheme. He was duly made Chairman of the Selection Committee constituted by the Bihar State Government. The Committee consisted of Dr. Mallick, Assistant Director of Pilaria and a senior officer representing Scheduled Castes/Scheduled Tribes. This Committee was entrusted with the task of recruiting 2250 Class III and Class IV employees. These posts were created to implement the Scheme in addition to 800-900 staff in Patna Centre in all categories. It goes without saying that the budgeted expenditure for recruitment of 2250 employees on these sanctioned posts was a planned expenditure. As these were the only sanctioned posts under the Scheme it passes one’s comprehension as to how Dr. Mallick could persuade himself to recruit 6000 employees on these 2250 sanctioned posts. Learned counsel for the appellants in written submissions tried to urge that there were more sanctioned posts while the learned counsel for the State of Bihar tried to assert that Dr. Mallick had appointed approximately 7000 persons. But as both the learned judges constituting the Division Bench, namely, K. Ramaswamy, J.

and Hansaria, J. proceeded on the accepted position on record that Dr. Mallick unauthorisedly appointed 6000 employees on the sanctioned 2250 posts we will proceed on that basis. It becomes, therefore, clear that at least 3750 employees were drafted in the Scheme by Dr. Mallick without there being any vacancies to receive them. Under these circumstances their initial entry must be held to be totally unauthorised, incompetent and void. It is axiomatic that when these recruitments were not supported by any budgetary grants there will be no occasion to make available finances to meet their salary expenses. Even apart from that, Dr.

Mallick threw all the discretion to the winds, acted as monarch of what he surveyed and in a most arbitrary fashion adopting the principle of ‘pick and choose’, recruited these 6000 employees completely violating the established norms and procedures for recruiting Class III and Class IV employees as laid down by the State government from time to time. We agree with the contention of Shri Singh, learned counsel for the respondent-State that all these recruitments made by Dr. Mallick were arbitrary, capricious and were null and void as he did violence to the established norms and procedures for recruiting such employees, Dr. Mallick was not giving appointments to these employees on his private establishment. He was recruiting them in a government Programme which was supported by Planned Expenditure. Such recruitment to Public services could not have been effected in such a cavalier fashion in which it was done by Dr.

Mallick. We are not in a position to persuade ourselves to agree with the contention of learned counsel for the appellants that the Government Order of 3rd December 1980 would not apply to these recruitments as this was a unique and distinct Scheme under 20-Point Programme. Even if it was a scheme under 20-Point Programme it was to be carried out as per planned expenditure. It is obvious that when planned expenditure is required to be incurred, budgetary sanction is a sine qua non. unfortunately Dr. Mallick treated this Scheme as his private property. The device adopted by him was in flagrant violation of all norms of administrative procedure known to law. In this connection we may profitably refer to Government Order dated 3rd December 1980 which is found at page 344 of the Paper Book in Civil Appeal Nos.

10758-59 of 1995. This Government Order deals with the procedure of appointment to Class-3 Posts in Government offices. There is a similar Government Order of even date for recruitment of Class-4 servants. That is annexed at page 352 in this very Paper Book. it is issued by the Department of Personnel and Administrative reforms, Bihar State. As this recruitment was done in a centralised manner at Patna for different districts under Tuberculosis Eradication Scheme to be carried out in all the districts in a phased manner, we may refer only to that part of this Government Order which referred to the procedure to be adopted for recruitment in Secretarial Services at Patna. it has been in terms laid down that in the Secretariat and its attached offices, a Selection committee shall be constituted. It will be chaired by the head of the concerned establishment and one of the members of this committee will be any senior officer as nominated by the Head of the Establishment. Other members of the committee will be officers belonging to SC/ST working in the same department. As per this G.O. so far as recruitment to Class III posts is concerned a merit list has to be prepared on the basis of marks obtained by the candidates at school or college examinations and appointment to the vacant posts will be made according to the instructions enclosed with the concerned Resolution. The vacancies will have to be communicated to the nearest employment Exchange of respective areas wherein the concerned offices exist. so far s G.O. concerning recruitment to Class IV servants is concerned, the Committee appointed for the purpose has to publish the advertisement through the Employment Exchange as per the direction contained in appointment Department Circular No. 8160 dated 21st June 1966. Government instructions regarding reservation for SC/ST also have to be adhered to. It is not in dispute that none of these instructions and the procedure laid down for recruiting Class III and class IV employees were followed by Dr. Mallick while recruiting adhoc/daily wage employees at the initial stage in the Tuberculosis Eradication Scheme supervised and monitored by him. However, learned counsel for the appellants vehemently submitted that these two Government orders would not apply and what applied for these recruitments was the government Resolution dated 25th March 1983. It is found at page 404 of the Paper Book in these civil appeals. The said Resolution of the Bihar Government in the Health Department issued under the signature of Joint Secretary to the Government shows that in super session of all the previous orders, the State Government had decided to constitute Selection Committee for regular appointment against the posts of class III and class IV under Malaria, filaria and T.B. Programme. The officers noted against their names would function as Chairman and members. A mere look at this Resolution shows that it indicates the appointing authorities who have to recruit staff on the concerned programme mentioned therein. Dr.

Mallick would necessarily, therefore, be the Chairman of the Tuberculosis Control Programme Recruitment Committee. But the very Resolution indicates that recruitment had to be for regular appointments to be made by the Selection committees to Class III and Class IV posts under Malaria, filaria and T.B. Programme. Therefore, recruitment was to be done in a regular manner against available posts. It never gave a blanket power to Dr. Mallick to create new posts which were not sanctioned and to make recruitment thereon. Nor did it give any authority to throw the recruitment procedure for recruiting such class III and Class IV employees to the winds and to make recruitment in an arbitrary manner at his whims and fancies. Nowhere this Resolution indicates that the earlier Government Orders laying down the procedure regarding recruitment to Class III and Class IV posts were to be given a go-by. Consequently the Resolution of 25th March 1983 has to be read along with the government Orders dated 3rd December 180 and not de hors them. The supersession of the previous orders as contemplated by the Resolution of 25 March 1983 was only to the limited extent that the Selection committee mentioned in the said Resolution will be the committee for appointing such persons on the concerned programmes and to that extent the recruiting authority as mentioned in the earlier Government Orders would stand superseded but it did nothing more than that. The procedure for recruitment, however, would remain the same even for the newly constituted Selection committee as per the resolution of 25th March 183. consequently it is not possible to agree with the contention of learned counsel for the appellants that this Resolution of 25th March 1983 displaced and gave a send-off to the recruitment procedure laid down by the Government Orders of 3rd December 1980. It is also equally not possible to agree with the contention of learned counsel for the appellants that s the recruitment was to be made on Tuberculosis Eradication Scheme under 20- Point Programme and the appointments were not to be made to posts on any regular order of Bihar State Service the recruitment procedure laid down by earlier government Orders of 3rd December 1980 would not stand attracted. It is easy to visualise that though the vacancies or posts as the case may be, may not be in the regular Bihar State Service but would be in the concerned programmes or schemes, nonetheless there would have to be recruitment to the sanctioned vacancies necessarily backed up by the financial budget support, to be made available by the State as per 20-Point Programme under its liability to contribute towards the same along with Central Government. It is axiomatic that unless there is vacancy there is no question of filling it up.

There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions. It appears that Dr. Mallick suffering from wrong nations of power and authority under the said Government Resolution and without bothering to find out whether there were vacancies or not under the Scheme indulged in self-help to recruit as many class III and Class IV employees as suited him and the result was that he loaded a dead weight of burden of these employees on the State exchequer by resorting to a completely unauthorised exercise. The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome guests. They were all persons non grata and were not employees in the real sense of the term. It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facis illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary, they were not binding on the State of Bihar. The first point for determination, therefore, will have to be answered in the negative.

Point No. 2 So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned. It is to be noted that question of confirmation of regularisation of an irregularly appointed candidate would arise if the concerned candidate is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never service for consideration and even if such purposed regularisation or confirmation is given it would be an exercise in futility.

It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity.

Learned counsel for the appellants invited our attention to the chart showing the details of appointments of the concerned appellants as found at Annexure XXII at pages 243 to 255 of the Paper Book and also as a specimen a subsequent order of confirmation as found at page 256 in the case of Ashwani Kumar. It was submitted that such confirmation orders were also given to number of employees who were initially appointed as daily wagers/T.B. Assistants by Dr.

Mallick. Our attention was also invited to the letter of Joint Secretary Shri Anant Shukla written to the Superintendent, T.B. Hospital, Koelwar, Bhojpur on 17th October 1984 which is found as Annexure-X at page 147 of the Paper Book to show that steps were taken for ratification of the orders of appointment of the daily wage employees as per the direction of Deputy Director, T.B./Health Services, Bihar. As we have seen earlier when the initial appointments by Dr. Mallick so far as these daily wagers were concerned, were illegal there was no question of regularising such employees and no right accrued to them as they were not confirmed on available clear vacancies under the Scheme. It passes one’s comprehension as to how against 2500 sanctioned vacancies confirmation could have been given to 6000 employees. The whole exercise remained in the realm of an unauthorised adventure. Nothing could come out of nothing.

Ex nihilo nihil fit. Zero multiplied by zero remained zero.

consequently no sustenance can be drawn by the appellants from these confirmation orders issued to them by Dr. Mallick on the basis of the directions issued by the concerned authorities at the relevant time. It would amount to regularisation of back door entries which were vitiated from the very inception of learned counsel for appellants that the vacancies on the Scheme had nothing to do with regular posts. Whether they are posts or vacancies they must be backed up by budgetary provisions so as to be included within the permissible infrastructure of the Scheme. Any posting which is dehors the budgetary grant and on a non- existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised. No right would accrue to the incumbent of such an imaginary or shadow vacancy.

In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that the concerned incumbents have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the concerned employees can give their best by being assured security of tenure. But this would require one pre-condition that the initial entry of such an employees must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the concerned incumbent. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. Learned counsel for the appellants, therefore, could not justifiably fall back upon the orders of regularisation passed in their favour by Dr.

Mallick. Even otherwise for regularising such employees will established procedure had to be followed. In the present case it was totally by-passed. In this connection we may profitably refer to Government Order dated 31st December 1986 to which our attention was invited by learned counsel for the appellants. The said government Order is found in the additional documents submitted in C.A. Nos. 10758-59 of 1995 at Annexure-IV. Secretary to Government of Bihar, Health Department, by communication dated 31.12.1986 had informed all regional deputy directors, health Services;

Tuberculosis civil surgeon-cum-Chief Medical officer; and other concerned authorities in connection with the compliance and implementation of the orders passed and instructions issued by Deputy director (Tuberculosis) Bihar, Patna under the Tuberculosis control Programme covered under the 20-Point programme. It was stated in the said Communication that steps will be taken to fill up sanctioned Third and fourth Grade posts as soon as possible according to the prescribed procedure and all possible efforts should be made to achieve the fixed targets in a planned and phased manner. Even this letter clearly indicates that the posts had to be filled up by following the prescribed procedure.

Despite all these communications neither the initial appointments nor the confirmations were done by following the prescribed procedure. On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so-called regularisations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the Scheme by Dr.

Mallick. For all these reasons, therefore, it is not possible to agree with the contention of learned counsel for the appellants that in any case the confirmations given to these employees gave them sufficient cloak of protection against future termination from services. On the contrary all the cobwebs created by Dr. Mallick by bringing in this army of 6000 employees under the Scheme had got to be cleared lock, stock and barrel so that public confidence in government administration would not get shattered and arbitrary actions would not get sanctified.

We may also at this stage to additional written submissions filed on behalf of the appellants in C.A. Nos.

10831-10985 of 1995. In these written submissions reliance is placed on the judgment of one of us, A.M. Ahmade, J. (as His Lordship then was), in the case of Jacob M.

Puthuparambil & Ors. etc. etc. v. Kerala Water Authority & Ors. etc. etc. [1990] INSC 295; (1991) 1 SCC 28. In the said decision it was held that when ad hoc employees who were continued for two years or more (in some cases one year or more) were entitled to be regularised subject to availability of vacancies. The aforesaid decision cannot be of any avail to the appellants for the simple reason that once we find that there were no vacancies at all on which the appellants could be regularised there was no occasion to undertake such an exercise especially when the initial entries of these appellants in the service were found to be illegal and vitiated.

Before we leave discussion on point no. 2 it is necessary to mention two additional aspects placed for our consideration by Dr. Dhavan in support of the appellants. In Civil Appeal Nos. 10811-28 of 1995 Dr. Dhavan submitted that there were two phases in connection with recruitment for Tuberculosis Eradication Programme. One phase was as per Government Order of 25th March 1983 wherein the committee of recruitment headed by Dr. Mallick was entrusted with the task of recruitment. But the second phase started on 31.1.1987 when Joint Secretary to Government of Bihar, Health Department addressed a communication to the Deputy Director, Tuberculosis, Dr. Mallick. The said communication is found as Annexure V to the Paper Book in civil Appeal no.

10811-28 of 1995. it mentions that the signatory to the communication was directed to say that keeping in view the necessity of one T.B. Assistant and T.B. Attendant for each of the 627 Primary Health centers, a training programme should be launched for training the candidates in proportion to the number of primary Health centres, which will have to compulsorily participate in the final examination conducted by the Director, State T.B. Demonstration and Training Centre and shall have to pass such examination so that they may be posted in the Primary Health centres in order of merit from the list of trained candidates after approval of sanction of a posts by the Government in phases. Dr. Dhavan contended that pursuant to the said direction Dr. Mallick appointed number of candidates under the Training Programme and these candidates were trained for being ultimately absorbed in primary health centres under the Scheme. We fail to appreciate how this communication which is styled as beginning of the second phase by Dr. Dhavan, can change the situation. Even though some training was given under the direction of the Government to certain candidates the recruitment made by Dr. Mallick in excess of the available vacancies would still remain unauthorised and illegal and cannot improve the situation for the said trainees in any manner. Even after training when recruitment is to be made it must be made on available vacancies or sanctioned posts under the Scheme and that too after following due procedure of recruitment. That was never done by Dr. Mallick.

Therefore, the so-called second phase cannot improve the position for the appellants in any manner. Dr. Dhavan then submitted that at least so far as 8 appellants in Civil Appeal arising out of S.L.P (C) No. 14275 of 1994 ar concerned, they were not appointed by Dr. Mallick but were appointed by Dr. Mithilesh Kumar. In para 3 of S.L.P. (C) No. 14275 of 1994 it has been stated that one letter was issued by the then Deputy Director (T.B.), Dr. Mallick on 23rd November 1989 by which the Civil Surgeon-cum-chief Medical Officer, Madhubani was directed to absorb petitioner no. 2 according to his qualification against a Class III post and accordingly he was appointed. At page 83 is found the recital as regards petitioner nos. 7 and 8, to the effect that with respect to them Dr. Mallick, the then Deputy Director (T.B.) Health Services issued one letter dated 12th January 1990 recommending for their absorption against class III posts according to their qualification and that is how they were appointed by Dr. Mithilesh Kumar. It was next submitted with reference to paragraph 13 of the same special Leave Petition that with respect to the appointments which were made by then Civil Surgeon-cum-Chief Medical Officer, Madhubani, like the petitioners a separate letter was issued on 6th March 1993 wherein the incharge Medical Officers of Primary health Centres were directed to issue show cause notices to such persons, who were appointed/absorbed by the order of the then civil Surgeon- cum-Chief Medical Officer, but such show cause notices were never issued. In our view these averments cannot improve the case of the appellants. Even though these concerned petitioners might have been actually appointed by Dr.

Mithilesh Kumar their appointments were recommended by Dr.

Mallick who, therefore, remained the prime mover in their cases also as in cases all other appellants. It is the hand of Dr. Mallick that brought them under the Tuberculosis Eradication Scheme and but for him they would not have got their entry. Therefore, actual appointments might have been made by Dr. Mithilesh Kumar but the real appointing agency remained that of Dr. Mallick. Consequently the effort made by Dr. Dhavan to separate their cases from the cases of other appellants who are tracing their direct linkage with Dr. Mallick remained an abortive one. Similarly whether show cause notices were issued to them or not also would be besides the point as we will see while deciding point no.3 that public notices were given to appointees to have their say before the competent authority in connection with their appointments and basic principles of natural justice were followed in these cases also. The second point, therefore, is answered in the negative. This takes to the consideration of Point No.3 for determination.

Point No.3 So far as the principles of natural justice are concerned it has to be stated at the outset that principles of natural justice cannot be subjected to any straight jacket formula. They will very from case to case, from circumstance to circumstance and from situation to situation. Here is a case in which 6000 employees were found squatting in the Tuberculosis Scheme controlled and monitored by Dr. Mallick for the entire State of Bihar and there was no budgetary sanction for defraying their expenditure. At least our of the 6000 employees as seen earlier 3750 were totally unauthorised and were squatting against non-existing vacancies. A grave situation had arisen which required immediate action for clearing the stables and for eradicating the evil effects of these vitiated recruitments so that the Tuberculosis Eradication Scheme could be put on a sound footing. When such a grave situation had arisen and when matters had gone up to the High Court wherein the State was directed to appoint a Committee to thoroughly investigate the entire matter, the State of Bihar had to appoint a committee to scrutinies these appointments and to filter them as directed by the High court of Patna.

For undertaking the said exercise public notices were issued by the Director-in-Chief, Health Services, Bihar, Patna by Communication dated 4th July 1992. The said communication which s found at page 147 of the Paper Book recites that Dr.

Mallick, the then Deputy Director (T.B.) presently retired, issued orders of appointment/posting/transfer/absorption on a large scale against the Class III and Class IV posts in the T.B. Eradication Programme under the Directorate of Health Services without following the procedure for appointments/without publication of advertisement and by openly violating reservation policy in contravention of Article 16. While distributing such appointment letters, Dr.

Mallick in many cases did not even care to see whether even the posts were sanctioned or not. Reference was made to the order passed by High Court of Patna which had directed the Government to require in all such matters and after considering the representations, pass a final order within 6 weeks. It was in the light of the Patna High Court’s direction that the Government called upon all the concerned persons to submit their representations, show cause replies before the signatory to the communication positively by 25th July 1992 so that appropriate decision might be taken after examining the legality of their appointments. Six types of informations were sought for from the concerned persons. The employees appointed from 1980 to 1987 were called upon to appear before the Director in Chief, Health Services, Bihar.

Patna in his office situated at Vikas Bhawan, Secretariat at 11.00 a.m. positively with a copy of show-cause reply on different dates ranging from 17th august 1992 to 19th September 1992 and the employees appointed from May 1988 to December 1988 and from January 1989 to December 1989-1990 were to appear in person on 29th September 1992. It is not in dispute that pursuant to the aforesaid communication duly published, out of 6000 employees who were the creatures of Dr. Mallick, 987 did appear. The appellants in C.A. Nos.

10758-59 of 1995 and others did submit details of their service bio-data to the concerned authority as per the said communication. A sample copy of the show cause reply sent to the Director-in-Chief, Health Services, in response to the said communication is at page 151 of the Paper Book. Query wise replies are found in the said return. It was thereafter that a written order was passed by Director-in-chief on 12th November 1992 appointing a committee of officers for scrutinising these replies and for coming to the correct conclusion in the light of the data supplied by the concerned employees who remained present for personal hearing before the authority in response to the earlier communication. The said order dated 12th November 1992 is at page 402 of the Paper Book. it clearly recites that after due consideration of all the facts, the Government had decided that the validity of all the appointments made by Dr. Mallick after 1.1.1980 should be examined. Accordingly all the concerned officials were given opportunity to submit show cause replies before the director-in-chief, Health Services Bihar, Patna by 25.7.92, after getting the notice to show cause advertised on 4.7.92 and also were given opportunity for personal hearing after fixing separate dates for officials appointed year wise from 1980 till August- September 1992. A committee of the officers mentioned in paragraph 4 was appointed to review the show cause replies mentioned in paragraph 3 and information received in course of personal hearings. The committee had to review the merits/demerits of the appointments under question in the light of policy and procedures prescribed by Government from time to time for appointment in Public Service and submit its recommendation to the Government. the learned counsel for the appellants submitted that appointment of this review committees was after the personal hearing before the Director-in-Chief, Health Services, Bihar, Patna and, therefore, this violated the basic principles of natural justice. It is difficult to agree. all the concerned appointees whose appointments by Dr. Mallick were to be filtered were given personal hearing by the Director-in- Chief. The data which they had to submit was duly received and it was thereafter that the Review committee was entrusted with the task of going through the data submitted by these employees along with their replies and their say during the personal hearing. Therefore, the said review Committed was only to scrutinies the data collected during the personal hearing by the Director-in-Chief, Health Services and on that bases the Committee decided the question of legality and validity of their appointments.

Thus the basic principles of natural justice cannot be said to have been violated by the Committee which ultimately took decision on the basis of the personal hearing given to the concerned employees and after considering what they had to say regarding their appointments. Whatever was submitted by the concerned employees was taken into consideration and than the committee came to a firm decision to the effect that all these appointments made by Dr. Mallick were vitiated from the inception and were required to be set aside and that is how the impugned termination orders were passed against the appellants. On the facts of these cases, therefore, it cannot be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter before their appointments were recalled and terminated.

Point no.3 is, therefore, is answered in the negative.

Point No.4 Now is the tie for us to take stock of the situation in the light of our answers to the aforesaid three points. As a logical corollary to these answers the appeals are liable to be dismissed as the decision of the High Court is found to be well sustained. The submission made by learned counsel for the appellants to sustain services of these appellants on humanitarian grounds cannot be countenanced. When 6000 appointees are found to have been illegally loaded on the State exchequer by Dr. Mallick and when there were only 2250 sanctioned posts, in the absence of clear data as to who were the senior most and which were the sanctioned posts available at the relevant time against which they could be fitted it would be impossible to undertake even a jettisoning operation to off load the removable load of excess employees amounting to 3750 by resorting to any judicial surgery. Once the source of their recruitment is found to be tainted all of them have to go by the board. Nor can we say tat benefit can be made available only to 1363 appellants before us as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16(1) of the Constitution of India. Everything, therefore, must start on a clean slate. Reliance placed by learned counsel for the appellants on the doctrine of tempering justice with mercy also cannot be pressed in service on the peculiar facts of these cases as mercy also has to be based on justice. The decision of this Court in the case of H.C. Puttaswamy (supra) also can be of no assistance to the appellants on the facts of the present cases as in that case the Chief Justice of the High Court had full financial powers to create any number of vacancies on the establishment of the High Court as required and to fill them up. There was no ceiling on his such powers.

Therefore, the initial entry of the appointees could not be said to be unauthorised or vitiated or tainted. The fault that was found was the manner in which after recruitment they were passed on to the establishments of subordinate courts. That exercise remained vitiated. But as the original entries in High Court service were not unauthorised these candidates/employees were permitted to be regularised. Such is not the present case. The initial entry of the employees is itself unauthorised being not against sanctioned vacancies nor was Dr. Mallick entrusted with the power of creating vacancies or posts for the schemes under the Tuberculosis Eradication Programme. Consequently the termination of the services of all these appellants cannot be found fault with. Nor any relief as claimed by them of reinstatement with continued service can be made available to them.

However there is one human aspect which calls for our attention on the facts of the present cases. These 6000 employees got employed by Dr. Mallick over at least a decade. Many of them served for number of years and got confirmed. They would naturally have their families to support. For no fault of theirs they found themselves stranded in life midstream. Many might have got over aged.

As Dr. Dhavan pointed out, many of them also got trained under the second phase of the Programme, as he would like to style it, pursuant to the Government Order dated 31.1.1987 referred to by us earlier. Under these circumstances justice would require that some effort to salvage their situation if possible may be made when the State undertakes a fresh exercise to fill up the sanctioned posts under the Tuberculosis Eradication Programme which has come to stay.

We are informed that tuberculosis is still not eradicated in the State of Bihar and the Programme is to last for couple of more years and may be it may assume a semi-permanent status. It was also not disputed that there are 2250 sanctioned posts or it may be that some more sanctioned posts may see the light of the day in near future. Shri Singh learned counsel for the respondent-State informed us that the State proposes to start on a clean slate and after following due procedure of recruitment would certainly recruit Class III and Class IV employees on the sanctioned vacancies and posts which will have to be filled up for making the Tuberculosis Eradication Scheme effective and fully operative. When that is the need of the day, it would be appropriate to direct the State to undertake that exercise at the earliest and while doing so after following the due procedure of recruitment and the rules governing the same, given an opportunity to these 6000 unfortunate creatures of Dr. Mallick to compete for the said posts in the future recruitment that may be undertaken by the State and in the process because of the experience which they have gathered in their past service under the Tuberculosis Programme and the training which they might have received pursuant to the Government Order dated 31.1.1987, due weight age also be given to them while considering their eligibility for being recruited in service as and when such future exercise is undertaken. Consequently we deem it fit to issue the following directions to the respondent State of Bihar in this connection :

1. Respondent-State of Bihar may start at the earliest a fresh exercise for recruiting Class III and Class IV employees in the Tuberculosis Eradication Programme undertaken by the State as a part of 20-Point Programme on the available 2250 vacancies or even more vacancies, as the case may be, preferably within three months from the receipt of a copy of this order.

2. Towards the said exercise the State will publish a notice in all the newspapers having circulation in the State inviting applications for direct recruitment to Class III and Class IV posts for filling up these vacancies in the said Programme.

3. Similarly names may also be called for from the concerned Employment Exchange for such recruitment.

4. If no statutory body composed of high-ranked officials for recruitment to Class III and Class IV employees is in vogue, the State is directed to constitute a committee consisting of three members, viz., (a) a member of the Public Service Commission; (b) a senior IAS officer, i.e., the Additional or Joint Secretary of the Health Department; and (c) a senior officer, i.e., the Director or Additional Director of Health Services, to select the candidates. The Additional or Joint Secretary of Health Department shall be the Chairman of the Committee.

5. The respondent-State will constitute such a committee preferably within three months of the receipt of this order.

6. It would be open to all the appellants or those appointed by Dr. Mallick who might not have challenged their termination orders before any competent court up till now, to apply for selection to the concerned Class III and Class IV posts. The committee would in their cases as first step, verify and satisfy itself of the credentials of such candidates whether they were appointed by Dr. Mallick and had worked a least for three years continuously. The committee would also satisfy itself that such candidate or candidates honestly and meritoriously discharged their duties as Class III and Class IV appointees, at least for the said period.

7. The committee may fix total number of marks to be obtained by the candidates for being treated to have passed the selection test. Any relaxation in the minimum eligibility marks to be obtained by the Scheduled Casts, Scheduled Tribes and Other Backward Classes candidates as found necessary may also be decided by the committee. The committee if satisfied about the credentials and other particulars of the appellants or those appointed by Dr. Mallick as mentioned in paragraph (6) above, may allot additional marks to them for each of the three years and more for which they might have worked, at the rate of 2 marks for each completed year of continuous working, upto the maximum of 6 marks, for each candidate. Candidates appointed by Dr. Mallick who are found to have undertaken training pursuant to the Government direction dated 31.1.1987 may be awarded 2 additional marks for the training so received. Those 2 marks will be in addition to the 6 marks which are to be awarded on completion of meritorious and honest service by the concerned employees as mentioned above.

8. If the concerned candidates who were earlier appointed by Dr. Mallick are found by the committee to be otherwise eligible for being appointed to Class III and Class IV posts as per the relevant rules and regulations and if on the basis of the marks allotted to them as aforesaid they become eligible to be appointed besides other competing candidates, then if they are found to have become age barred the condition of age for recruitment of such candidates should be relaxed appropriately so as to entitle such candidates to be considered for selection.

9. The State Government shall arrange sittings of the Selection Committee preferably within two months from the last date prescribed for submitting the applications and for completion of the preliminary scrutiny of such applications. The committee shall select all candidates on merits following the prescribed procedure in the appropriate circulars and rules and shall also follow the rules of reservation as in vogue and prepare the merit list and should submit it to the Government. While doing so the eligible candidates who were earlier appointed by Dr. Mallick and who received the marks for their past meritorious service and training as aforesaid will be considered for selection qua the other candidates in the light of the weight age of the marks as aforesaid and in that light the committee will select all the candidates on merits and will prepare the select list of candidates found fit to be appointed to the concerned posts.

10. The committee will complete the process of selection preferably within three months from the date of its sittings for selection.

11. An appropriate authority or the government, as the case may be, will appoint preferably within three months from the date of the receipt of the merit list from the committee, the selected candidates as per roster and the merit list, on available vacancies, after due identification of the credentials of the candidates concerned as per its legally permissible procedure.

12. In the event of selection and appointment of erstwhile daily-rated employee or employees, who were inducted by Dr. Mallick, the entire proved period during which they had worked as daily wager and/or confirmed employees will be computed for the purpose of pensionary and other retrial benefits but they will not be entitled to claim any inter se higher seniority in the selection made by the committee or for any promotion on the basis of their previous service.

The appeals are disposed of in the above terms. In the facts and circumstances of the case there will be no order as to costs.

The post Ashwani Kumar Vs State of Bihar appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
M.C. MEHTA …PETITIONER
Vs.
KAMAL NATH & ORS. …RESPONDENT
DATE OF JUDGMENT: 13/12/1996
BENCH: KULDIP SINGH, S. SAGHNR AHMAD

THE 13TH DAY OF DECEMBER, 1996

Present:
Hon’ble Mr. Justice Kuldip Singh
Hon’ble Mr. Justice S. Saghir Ahmad
In-person for Petitioner
H.N. Salve, Sr. Adv., M.S. Vashisht, Rajiv Dutta, Shiv Pujan Singh, J.S. Atri, L.R. Rath, Advs. With him for the Respondents.

J U D G M E N T

The following judgment of the Court was delivered:

Kuldip Singh J.

This Court took notice of the News item appearing in the “Indian Express” dated February 25, 1996 under the caption – “Kamal Nath dares the mighty Beas to keep his dreams afloat”. The relevant part of the news item is as under:-
“Kamal Nath’s family has direct links with a private company, Span Motels Private Limited, which owns a resort – Span Resorts – for tourists in the Kullu-Manali valley. The problem is with another ambitious venture floated by the same company – Span Club.
The club represents Kamal Nath’s dream of having a house on the bank of the Beas in the shadow the bank of the Beas in the shadow of the snow-capped Zanskar ranges. The club was built after encroaching upon 27.12 bighas of land, including substantial forest land, in 1990. The land was later regularised and leased out to the company on April 11, 1994. The regularisation was done when Mr. Kamal Nath was Minister of environment and Forests. …. The swollen Beas changed its course and engulted the Span club and the adjoining lawns, washing it away.
For almost five months now, the Span Resorts management has been moving bulldozers and earth-movers to turn the course of the Beas for a second time.
The heavy earth mover has been used to block the flow of the river just 500 meters upstream. The bulldozers are creating a new channel to divert the river to at least one kilometer downstream. The tractor trolleys move earth and boulders to shore up the embankment surrounding Span Resort for flaying a lawn. According to the Span Resorts management, the entire reclaiming operation should be over by March 31 and is likely to cost over a crore or rupees.
Three private companies – one each from Chandigarh, Mandi and Kullu – have moved in one heavy earth mover (hired at the rate of Rs. 2000 per hour), four earth movers and four bulldozers (rates varying from Rs 650 to Rs 850 each per hour) and 35 tractor trolleys, A security ring has been thrown all around. ………………Another worrying thought is that of the river eating into the mountains, leading to landslides which are an occasional occurrence in this area, Last September, these caused floods in the Beas and property estimated to be worth Rs 105 crore was destroyed. ………………Once they succeed in diverting the river, the Span management plans to go in for landscaping the reclaimed land. But as of today, they are not so sure. Even they confess the river may just return.
“Mr. Kamal Nath was here for a short while two-three months ago. He came, saw what was going on and left. I suppose he knows what he is doing”, says another executive. The district administration pleads helplessness. Rivers and forest land, officials point out, are not under their jurisdiction. Only the Kullu conservator of forests or the district forest officer can intervene in this case. But who is going to bell the country’s former Environment and Forests Minister? Interestingly, a query faxed to Kamal Nath for his views on these developments fetched a reply from Mr. S. Mukerji, President of the Span Motels Private Limited.
Admitting that the Nath family had “business interests” in the company since 1981, he said, “the company is managed by a team of professional managers and Mr. Kamal Nath is not involved in the management activity of the company.”
“The Board comprises professionals, some or whom are friends and relatives of the Nath family”, Mr. Mukerji said, He expressed surprise that a reference had been made to Rangri and Chakki villagers “since these villagers are at east 2/3 kilometers away and not even on the river side.”He said the Span Club was not for the exclusive use of any one individual.” “We would like to emphasize that we are only ‘restoring the river’ to its original and natural course and are restoring our land and or those or neighbouring villagers similarly affected by the flood.”He maintained that “Mr. Kamal Nath has definitely not been to Span Resorts in the last two months and in fact, to the best of my knowledge, has not traveled to the Kullu Valley for quite some time now….In any case, we had never “blocked” any channel in the vicinity of Span.”

Mr. Kamal Nath filed one-page counter affidavit dated June 8, 1996. Paras 1 and 3 of the counter area as under:-
“I say that I have been wrongly arrayed as a respondent in the above petition in-as-much as I have no right, title or interest in the property known as “Span Resorts”owned by “Span Motels Private Limited”.
I further say that the allegations made in the press reports based on which this Hon’ble Court was pleased to issue notice are highly exaggerated, erroneous, mala fide, mischievous and have been published only to harm and malign the reputation of this respondent.”

On behalf of Span Motels Private Limited (the Mote), Mr. Banwari Lal Mathur, its Executive Director filed counter affidavit. Paras 2 and 3 of the counter are as under:-
“I say that Mr. Kamal Nath who has been arrayed as respondent No.1 in the above writ petition has no right, title or interest in the property known as SPAN RESORTS owned by Span Motels Pvt. Ltd. or in the lands leased out to the said company by the State of Himachal Pradesh.
I say that the shareholding of SPAN MOTELS PVT. LTD. is as under:
No. of % Share
Shares holding
Held
Mrs. Leela Nath 32,560 42
EMC Projects Pvt.
Ltd. 14,700 19
SHAKA Properties
Pvt.Ltd. 15,000 19
SHAKA Estate &
Finance Pvt. Ltd.15,000 19
Capt. Alok Chandola 250 01
————-
77,510 100

It was not disputed before us by Mr. Harish Balve, learned counsel appearing for Mr. Kamal Nath that almost all the shares in the Motel are owned by the family of Mr. Kamal Nath. We do not wish to comment on the averment made on oath by Mr. Kamal Nath that he has “no right, title or interest in the property known as Span Resorts owned by Span Motels Private Limited”.

Mr. B.L. Mathur filed an additional counter affidavit dated July 30, 1996 on behalf of the Motel, The counter affidavit mentioned above states that Government land measuring 40 bighas 3 biswas situated along side KulluManali Road on the bank of river Beas was granted on lease to the Motel for a period of 99 years with effect from October 1, 1972 to October 1, 2071. The lessee was granted permission to enter and occupy the said area for the purpose of putting up a motel and for installing ancillaries in due course as may be subsequently approved by the lessor. We may refer to paras 6 and 7 of the lease deed dated September 29, 1972 which are as under:-
“The Lessee shall not dig deep pits of trenches in the said land, which may lead to the danger or erosion and shall make good the Lessor defects caused by their acts or defaults within one month of notice by the Lessor.
In the event of said land being required by Lessor for any other purpose, whatsoever the Lessor will be entitled to terminate this lease at any time by giving six months notice in writing to the lessee and the lessee shall not be entitled to any compensation whatsoever on account of such termination.”

The current management (Shri Kamal Nath’s family) took over the Motel in the year 1981, fresh lease was signed on September 29, 1981. The new lease was for the same period from 1972 to 2071. Paras 4 and 5 of the additional affidavit are as under:-
“I say that the Motel commenced operations in 1975. There are over 800 trees in this area of 40 bighas. the motel has two clusters with 8 dwelling units of 3 rooms each. The rooms are nowhere near the river – the distance between the cluster or rooms and the beginning of the river basin is about 10 meters-actually the river is another 50 meters therefrom. Thus, the effective distance between the edge of the river and the cluster of rooms is 40 meters. I say that in the peak of the flood, the river did not come closer than 10 meters to the rooms and did not, therefore, pose any danger to the rooms, particularly there is no problems qua rooms as the rooms are on a higher level – at least 5-7 meters at their closest point.”

Along with the additional affidavit the correspondence between the Motel and the Government has been annexed. In a letter dated October 19, 1988 addressed to the Chief Minister Himachal Pradesh. The Motel gave details of the flood-damage during the year 1988 and finally requested the Government for the following steps:-
“Further it is imperative that the Government take immediate steps to stop erosion of the land under lease to us. It would appear that strong concrete blackened retaining walls will be necessary to be placed at appropriate points to protect the land mass around us.”
The Motel addressed letter dated August 30, 1989 to the Divisional Forest Officer, Kullu. The relevant part of the letter is as under:-
“When we acquired our land on lease, there were no clear demarcations of the surrounding areas and boundaries. There has existed a stretch of waste and “banjar” (Class III) forest land in a longitudinal strip along the River bank admeasuring about 22.2 bighas, contiguous and adjacent to our leased land. Over the years, and especially after the sever flood erosion last year, we have built extensive stone, cemented and wire-mesh created embankments all along the river banks at considerable expanse and cost. We have also gradually and painstakingly developed this entire waste & “banjar” area, beautified and landscaped it, planted ornamental, fruiting and varied forest trees extensively such that it blends with our estate and with the surrounding flora and environment in a harmonious manner. A Revenue map along with all revenue department records covering this entire area, is forwarded enclosed herewith for your reference and perusal. We are aware that in accordance with the Forest Conservation Act of 1980, the use of Forest land by Private Agency even for natural development and afforestation scheme, requires alternative matching compensatory afforestation land areas to be surrendered by the concerned party, after due approval of the Government. In view of this statutory pre-condition, we wish to submit that we can immediately surrender to the Government nearly 28 bighas & 13 biswas of private agricultural cultivated land located at Village MAJHACH, (Burua), MANALI, in exchange for the above mentioned 22.2 bighas of Class III banjar forest land adjoining our land in Village Baragran Bihal, which we request for transfer to our company in lieu of the land we are wiling to surrender. The specific Revenue maps and records concerning this area of land of Village Majhadh, are also enclosed herewith for your kind perusal.”

It is obvious from the contents of the letter quoted above that the motel had encroached upon an additional area of 22.2 bighas adjoining to the lease-hold area. Apart from that the Motel had built extensive stone, cemented and wire mesh created embankments all along the river banks. The Motel was keen to have the encroached and by way of exchange/lease. A request to that effect was repeated in the letter dated September 12, 1989 addressed to the Divisional Forest Officer, Kullu. The Motel again repeated its request for lease of the additional land by the letter dated July 9, 1991. The said letter further stated as under:-
“We would also like to mention that the Banjar land adjoining our hotel, referred to in para 1 above, lies along the bank of river Beas which erodes it every year. About ten years ago almost 4 bighas of this land were lashed away and the on flowing water had posed a serious threat to our hotel buildings and adjoining area. To protect our property we were compelled to erect deep protection embankments along the banjar land in question at huge cost the details of which will be sent to you shortly. If our proposal is accepted for the exchange of and it will become possible for us to take further steps to protect this land”.

The Divisional Forest Officer, Kullu sent reply dated January 12, 1993 which state as under:-
“In this connection it is intimated that at present we are not having funds to put crates and spurs along the river side near your hotel to check the soil erosion, as indicated in your letter referred to above. In order to protect your property from the damage, you can carry out such works at your level, subject to the condition that the ownership of the land would vest with Forest Department and the Department would not be liable to pay any among incurred for the purpose by you at a later stage and you would not claim any right on government property.”

The above quoted letter can be of no consequence because much before the said letter the Motel had built extensive stone, cemented and wire mash crated embankments all along the river banks. This is obvious from the contents of the letter dated August 30, 1989 (quoted above).

The Motel addressed a letter dated June 21, 1993 to the Chief Secretary, Himachal Pradesh wherein it is clearly stated that the adjoining land measuring 122 bighas and 3 bishwas had been reclaimed by the Motel. The relevant part of the letter is as under:-
“Adjoining our Resort and Contiguous to our leased land is a stretch of class III – Banjar forest land in a longitudinal strip along the river bank admeasuring 22 Bighas and 3 Biswas. This was a stony piece of land and used to get flooded every year during monsoons and often got washed away and reduced in size by river erosion year by year. This land was reclaimed by us and protected by an embankment and filling from the river side.”

The said letter further states as under:-
“Similarly on the river side part of our leased land there used to be floods and erosion every year. If we would have let this continue, the leased land would have also got reduced every year. In order to protect our leased land and to save damage to our hotel property, we at our own considerable expense and cost built stone and wire mesh crated embankment all along the river bank. This not only protected our hotel land but also the forest land….
In 1988 there were severe floods when every a portion of leased land got washed away. It became imperative for us at considerable expense to build an embankment on the river front along the leased property. In order to build an embankment on the river front along the leased property the washed away area and part of the river bank had to be filled at huge cost. Once the river bed and the washed away area was filled, the choice before us was either to put soil on it and grow grass and trees to secure it or let it remain unsecured and aesthetically displeasing. We chose the former. As a result of land filling and embankment our leased area when measured will obviously show an increase. This increase is not an encroachment but reclamation with the objective of protecting the leased property.”

In the letter dated August 7, 1993 addressed to the Divisional Forest Officer, the Motel again asked for lease of adjoining area. The relevant part of the letter is as under:-
“We had explained in our previous letters dated 21.6.93 and 23.7.93 (copies of which have been sent to you with our letter dated 6.8.93) the circumstances under which we had to spend enormous sum of money in protecting and reclaiming the forest land adjoining our Resort. It had become necessary for us to undertake this reclamation and protection work by filling the land from the river bed, constructing embankments, retaining walls and crating etc. in order to protect the land leased by the Government to our Span Resort and property thereon but we were unable to complete the entire work as we were restrained from carrying on with the work under undue allegations of encroachment on the forest land…..
In order to expedite the process of commencing protection work on an urgent basis on the forest land, we propose that the forest land be given to us on long lease co- terminus with the lease on the land granted by the Government for our Span Resorts. This could be done by a supplementary lease as it is imperative to save the land under the original lease.
All we have done is to reclaim and protect the land from erosion by constructing crates, retaining walls and embankments along the river Beas by investing huge amounts which unfortunately have all been washed away due to floods and now requires reconstruction to save the forest land an our adjoining property from total destruction.”

The Government of India, Ministry of Environment and Forests by the letter dated November 24, 1993 addressed to the Secretary, Forest, Government of Himachal Pradesh, Shimla conveyed its prior approval in terms of Section 2 of the Forest (Conservation) Act. 1980 for leasing to the Motel 27 bighas and 12 biswas of forest land adjoining to the land already on lease with the Motel. A lease deed dated April 11, 1994, regarding the said land was executed between the Himachal Government and the Motel. The additional affidavit tiled by the Motel refers to the prior approval granted by the Government of India as under:-
“In the Ministry of Environment and Forests, the proposal was cleared by the Secretary and forwarded to the Forest Advisory Committee by passing the Minister concerned. the Forest Advisory Committee cleared the proposal subject to severe restrictions – and also certain restrictions which are not normally imposed in such cases. The proposal was then cleared at the level of the Prime Minister and by a letter of 24th November, 1993, approval was communicated to the State Government and SMPL.”

it may be mentioned that Mr. Kamal Nath was the minister in charge, Department of Environment and Forests at the relevant time. What is sought to be conveyed by the above quoted paragraph is that Mr. Kamal Nath did not deal with the file. The correspondence between the Motel and the Himachal Government referred to and quoted by us shows that from 1988 the Motel had been writing to the Government for the exchange/lease of the additional forest land. It is only in November, 1993 when Mr. Kamal Nath was the Minister, incharge of the Department that the clearance was given by the Government of India and the lease was granted, Surely it cannot be a coincidence.

This Court took notice of the news item – quoted above – because the facts disclosed therein, it true, would be a serious act of environmental-degradation on the part of the motel. It is not disputed that in September 1995 the swollen Beas engulfed some part of the land in possession of the motel. The news item stated that the motel used earth-movers and bulldozers to turn the course of the river. The effort on the part of the motel was to create a new channel by diverting the river-flow. Accordingly to the news item three private companies were engaged to re-claim huge tracts of land around the motel. The main allegation in the news item was that the course of the river was being diverted to save the motel from future floods. In the counter affidavit filed by the motel, the allegations in the news item have been dealt with in the following manner:
“1) If the works were not conducted by the Company, it would in future eventually cause damage to both banks of the river, under natural flow conditions. m) By dredging the river, depth has been provided to the river channel thus enhancing its capacity to cope with large volume of water. n) The wire crates have been put on both banks of the river. This has been done to strengthen and protect the banks from erosion and Nos. as any form of river diversion. It is not necessary to divert the river because simply providing greater depth and removing debris deposits enhances the capacity of the river to accommodate greater water flow. o) I further state that the nearly 200 metres of wire crates which have been put on the felt bank of the river (the river bank on the opposite side of SPAN) is in the interest of the community and nearby residents/villages. This left Bank crating protects the hillside where RANGRI, CHAKKI and NAGGAR are located. s) After the floods, it was observed, that the boulders and rubble deposits were obstructing and hindering the flow of the river and thus, it was the common concern of the Company as well as of the Panchayat of the Village BARAGRAN BIHAL to carry out dredging measures to provide free flow of the river water. t) Accordingly alleviation measures conducted by the company and the villagers of BARAGRAN BIHAL were as under; i) Dredging of debris deposit: Debris deposits in river basin which had collected due to the floods were removed by dredging. This deepens the channel and thus allows larger flow of water. ii) Strengthening of both banks with wire crates: Wire crates are the common method of protection of bank erosion. Accordingly wire crates were put along the opposite side (left bank) to protect the landslide of the hillside wire on which village RANGRI is perched. Wire crating was also put on the Resort side of the River (Right Bank) to strengthen & protect the bank against erosion. All the wire crating runs along the river flow and not as an obstruction of for any diversion. w) It is further submitted that whereas the report mischievously refers to villagers of Rangris Chakki and Naggar nowhere does it take n to account the very real problems of villagers of baragran Bihal which is located immediately on the Right Bank near the SPAN Resort who were seriously affected by the floods, Chakki, Rangri and Naggar Villages have not at all been affected by the floods and there is no remote possibility of these villages being affected due to the flood protection works conducted by the Company.”

In the additional affidavit filed by the motel the facts pleaded are as under:
“ii) It had become necessary for them to undertake this reclamation and protection work by filling the land from river bed, constructing embankments, retaining walls and crates, etc. in order to protect the land leased by the Government to the Resort and the property thereon. vii) The forest land which is suspectible to heavy river erosion by floods involves high cost for its protection from getting washed away every year would be protected by construction of embankments and filling from the river side by the Company…..local community of Kullu and Manali and surrounding villages will benefit.”

Mr. G.D. Khachi, Under Secretary (Revenue) Government of Himachal Pradesh in the counter affidavit filed in this Court stated as under:
“iii) That subsequently, a piece of land measuring 21-09 bighas was encroached by M/s. Span Motels, On coming to the notice of the Government of such encroachment, the Govt. of Himachal Pradesh in Revenue Department took action and reportedly got the encroached land vacated, and the possession of which has been taken over by the Forest Department. that on 21-22 July, 1992, the then Chief Secretary to the Government of Himachal pradesh visited the site who drew the inference that M/s, Span Hotel Ltd. were still using the encroached land. The copy of note on inspection of the then Chief Secretary is annexed as R-1. That immediately on receipt of the recommendations of the then Chief Secretary (Annexure k-1), the Department of Forest started working at the site but in the mean time, it was decided to least out a piece of land measuring 27-12 bighas which includes the said encroached land measuring 21-09 bighas. The lease granted by the Government on Himachal Pradesh in Revenue Department vide letter No.Rev.D(6)(6-53/93, dated 5.4.1994 is annexed as Annexure R-II after obtaining the approval of Government of India, Ministry of Environment a Forest, New Delhi vide letter No.9-115/93-ROC, dated 24.11.93 (copy annexed as Annexure R-III) for the purpose of protecting earlier leased land. that the development activities which was being undertaken by M/s. Span Motels Ltd. came to the knowledge of the Government from the News Item which appeared in the Press and field officers of all the concerned departments took an exercise to carry out the inspection and reported the matter to the Government”.

C.P. Sujaya, Financial Commissioner-cum-Secretary (Irrigation and Public Health) Government of Himachal Pradesh in her counter affidavit filed in this Court, inter alia, stated as under:
“Admitted to the extent that the Span Resorts management had deployed heavy earth moving machinery to reclaim their land and to divert/channelise the course of river to its course which it was following prior to 1995 – floods by dredging and raising of earthen and wire crated embankments. The flow of river has been changed/diverted by dredging/raising of wire crated embankments and creating channel from a point u/s or Span resorts to D/s of Span Resorts. The approximate length or channel is about 1000 miters. Admitted to the Extent that village Ranghri and Chakki are located on left bank of river Beas. However, channelization of river has been done slightly away from the toe of foot hills except for the last about 500 meters where. It is running along the foot hills. The hill on which village Rangri and Chakki are situated consists of small boulders embedded in Sandy Strata and is quite fragile/unstable in nature. Therefore, this reach of river is prone to land slides in the normal course also. However, it is feared that flow of river along the root hills may hasten/aggravate the process of land slides. The Span Management has provided wire crated embankment in a reach of about so embankment in a reach of about 90 metres on left bank and about 270 metres on right bank to channelise the flow and also to reclaim part of land on right bank of river Beas. Admitted to the extent that the diversion/channelization of river has been done to restore it to its course of pre-1995 floods and in the report. Para 4.2 of the report gives details of the construction done by the motel prior to 1995 floods. The relevant part of the paragraph is as under: “To protect the newly acquired land, SMPL took a number of measures which include construction of the following as shown in Rig.2: (a) 8 ros. studs of concrete blocks 8m long and 20m apart on the eastern face or the club island on the upstream side, (b) 180m long stepped wall also on the eastern race of club island on the certritieam side, (c) ?? high bar of concrete blocks ?? the entry at the spill. (d) For Personal 8 nos. studs also 8m long in 20m apart on the right bank of the-river Beas in front of the restation of the SMPL. While (a) or (b) were aimed at protecting the club island from the main current, (c) was to discourage larger inflow into the spill channel. Item (d) was meant to protect the main resort land or SMPL if heavy flow comes into the spill channel. The works executed in 1993 were bank protection works, and were not of a nature so as to change the regime or the course of river, A medium flood again occurred in 1994. Partly due to the protection works, no appreciable damage occurred during this flood. The main current still continues on the left bank.”

The happening of events in the vicinity of motel during the 1995 flood and the steps taken by the motel have been stated in the report as under:
“A big slip occurred on the hill side on the left bank, at a distance about 200 m upstream from the point where division into main and spill channels was occurring, on the afternoon of September 4, 1995, This partially blocked the main left side channel which was relatively narrow at this location. This Presumably triggered the major change of course in the river, diverting the major portion of the flow into spill channel towards the right and almost over the entire lane area of the club island. The enquire club building and the plantation as well as the protection works built in 1993 were washed away. heavy debris was deposited on this. and Damage occurred on the right bank also but the buildings of the main SMPL resort remained more or test and rented, A large hotel and rare buildings on the right bank, relevant adjacent to SMPL, in the downs Station also washed away. The bar under knocks at the upstream end of the spill channel as well as most of studs of this channel were also washed away. Some remnants on five down spread studs could be seen at the time of the visit.?. After the passage of 1993 flood, SMPL have taken further steps o protect their property as shown in Fig. 3. These are as follows:
1. The left side channels (the main channel), which had become less active, has been dredged to increase its capacity. Wire crate revetments (A, B & C) on both banks of this channel have been made to direct the flow through this channel. These revetments and restoration earth revetments and restoration earth work down would curtail the entry of water into the right side relief/spill channel which had developed into the main channel during the flood. As relatively small channel (the relief/spill channel) still exist; and carries very little flow. Bulk of the flow is now going into the left bank channel.
On the left bank, there are steep unstable slopes at higher elevations left after the slides during the flood. These are likely to slip in any case, and if so happens, may block the left channel again, This land belongs to some villagers from Rangri. The left bank channel is again sub-dividing into two streams(d) and the small stream is flowing close tot he toe of the hills for a distance of about 500 to 600 m before it turns towards midstream, Some of the dredged material is piled on the right bank and some on the divide between the main channel and the subsidiary channel on the left. Strips card be seen in this reach of 500-600 m even now, and erosion at toe may aggravate sliding tendency. SMPL has also put 190 m wire crates (C) as protection against erosion of this bank, which may be helpful upto moderate flood conditions.
The dredging and channelisation of the left bank channel, though aimed at protecting SMPL land, should normally keep high intensity of flow away from both banks in moderate floods. This should thus not be a cause of concern. In high floods, the water would spill or spread beyond this channel. Due to restriction of entry in the right relief/spill channel, though the works may not withstand a high flood, there may be a tendency for more flow towards the left bank, However, the river is presently in a highly unstable regime after the 1995 extra-ordinary floods, and it is difficult to predict its behavior if another high flood occurs in the near future.”

The conclusions given by the inspecting team in the report are as under:
6.8 The relief channel is supposed to be the government land. Construction of any sort to block the natural flow of water is illegal and no permission has been taken from the concerned department.
6.9 The lease agreement of 1994 had the clause for protection of the land but it should have been done not by blocking the flood spill/relief channel.
6.10 Relief channel is the shortest path between the two bends. Any future slip on left bank due to training of discharge at its foot may cause flood on the right bank where the leasehold land (1994) exists.
6.11 No new construction should be allowed in this flood prone area except flood protection measures. No economic activity should be undertaken in the aforementioned stretch.
6.12 Since newly acquired land of M/s SMPL is located on the flood plain, sandwiched between the main channel and the relier/spill channel, the land may be deleased and the Forest Department take care of plantation in the are after adequate flood control measures are taken by the innigation Department. This is necessitated in view of the fact that the left bank opposite SMPL is very sleep (almost vertical) and is subjected to potential threat of land slip to block the channel and cause change of course of the river flow again.
6.13 Even if land slips occur, the impact will be local limited only to the stretch of the Beas river near SMPL.
6.14 The river is presently in a highly unstable regime after 1995 extra-ordinary floods, and it is difficult to predict its behaviour if another high flood occur in the near future. A long-term planning for flood control in the Kullu Valley needs to be taken up immediately with the advice of an organisation having expertise in the field, and permanent measures shall be taken to protect the area so that recurrence of such a heavy flood is mitigated permanently”

On a careful examination of the counter-affidavits filed by the parties, the report placed on record by the Board and other material placed on record, the following facts are established:
1. The lease hold area in possession of the motel is a part of the protected forest land owned by the State Government.
2. The forest land measuring 27 bighas and 12 biswas leased to the motel by the lease-deed dated April 11, 1994 is situated on the right back of the river and is separated from the motel by a natural relief/spill channel of the river.
3. A wooden bridge on the spill channel connects the main motel land and the land acquired under the 1994 lease-deed.
4. 22.2 bighas out of the land leased to the motel in 1994 was encroached upon by the motel in the year 1988/89.
5. Prior to the 1995 floods the motel constructed 8 studs of concrete blocks 8m long and 20m apart on the upstream bank of the river, 150m long stepped wall on the downstream side of the river and 2m high bar of concrete blocks at the entry at the spill channel and additional 8 studs 8m long and 20m apart on the right bank of the river Beas in front of the restaurant of the Motel.
6. After the 1995 floods the motel has dredged the left side channel (the main channel) of the river to increase its capacity. Wire crate revetments on both banks of the main channel of river have been made to direct the flow through the said channel. This has been done with a view to curtail the entry of water into the right side relief/spill channel.
7. The motel has constructed 190m wire crates on the bank of the river (upstream). The dredged material is piled up on the banks of the river. The dredging and channelising of the left bank has been done on a large scale with a view to keep high intensity of flow away from the motel.
8. The dredging of the main channel of river was done by blasting the big boulders and removing the debris.
9. The month of the natural relief/spill channel has been blocked by wire crates and dumping of boulders.
10. The construction work was not done under expert advice.
11. The construction work undertaken by the motel for channelising the main course has divided the main stream into two, one of which goes very near to the left bank because of which, according to the report, fresh land slip in future cannot be ruled out.

The report further indicates that the relief channel being part of the natural flow of the river no construction of any sort could be made to block the said flow. According to the report no permission whatsoever, was sought for the construction done by the motel. The Board in its report has further opined that the clause in the lease agreement for protection of land did not permit the motel to block the flood spill/relief channel of the river. The report categorically states that no new construction should be allowed in this flood prone area and no economic activities should be permitted in the said stretch. It has been finally recommended by the inspection team that the land acquired by the motel under the 1994 lease-deed is located on the flood plain sandwitched between the main channel and the relief/spill channel and as such it should be released so that the Forest Department may take care of the plantation in the area and also preserve the ecologically fragile area of river Beas.

Mr. Harish Salve vehemently contended that whatever construction – activity was done by the Motel on the land under its possession and on the area around, if any, was done with a view to protect the lease-hold land from floods. According to him the Divisional Forest Officer by the letter dated January 12, 1993 quoted above – permitted the motel to carry out the necessary works subject to the conditions that the department would not be liable to pay any amount incurred for the said purpose by the Motel. We do not agree. It is obvious from the correspondence between the Motel and the Government referred to by us that much before the letter of the Divisional Forest Officer dated January 12, 1993, the Motel had made various constructions on the surrounding area and on the banks of the river. In the letter dated August 30, 1989 addressed to the Divisional Forest Officer Kullu – quoted above – the Motel management admitted that “over the years, and especially after the sever flood erosion last year, we have built extensive stone, cemented and wire-mesh crated embankments all along with the river banks at considerable expense and cost. We have also gradually and painstakingly developed this entire waste and banjar area”. The “Banjar Area” refereed to in the letter was the adjoining area admeasuring 22.2 bighas which was not on lease with the Motel at that time. The admissions by the Motel-management in various letters written to the Government, the counter affidavits filed by the various Government officers and the report placed on record by the board clearly show that the Motel-management has by their illegal constructions and callous interference with t he natural flow of river Beas has degraded the environment. We have no hesitation in holding that the Motel interfered with the natural flow of the river by trying to block the natural relief/spill channel of the river.

The forest lands which have been given on lease to the Motel by the State Governments are situated at the bank of the river Beas. Beas is a young and dynamic river. It runs through Kullu valley between the mountain ranges of the Dhaulandhar in the right bank and the Chandrakheni in the left. The river is fast – flowing, carrying large boulders, at the times or flood. When water velocity is not sufficient to carry the boulders, those are deposited in the channel often blocking the flow of water. Under such circumstances the river stream changes its course, remaining within the valley but swinging from one bank to the other. The right bank of the river Beas where motel is located mostly comes under forest, the left bank consists of plateaus, having steep – bank facing the river, where fruit orchards and cereal cultivation are predominant. The area being ecologically fragile and full or scenic beauty should not have been permitted to be converted into private ownership and for commercial gains.

The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. The need to protect the environment and ecology has been summed up by David B. Hunter (University of Michigan) in an article titled an ecological perspective on property: A call for judicial protection of the public’s interest in environmentally critical resources published in Harvard Environmental law Review Vol. 12 1988 Page 311 in the following words:
“Another major ecological tenet is that the world is finite. The earth can support only so many people and only so much human activity before limits are reached. The lesson was driven home by the oil crisis of the 1970’s as well as by the pesticide scare of the 1960’s. The current deterioration of the ozone layer is another vivid example of the complex, unpredictable and potentially catastrophic effects posed by our disregard of the environmental limits to economic growth. The absolute finiteness of the environment, when coupled with human dependency on the environment, leads to the unquestionable result that human activities will at some point be constrained. “[H]uman activity finds in the natural world its external limits. In short, the environment imposes constraints on our freedom; these constraints are not the product of value choices but of the scientific imperative of the environment’s limitations. Reliance on improving technology can delay temporarily, but not forever, the inevitable constraints. “There is a limit to the capacity of the environment to service…growth, both in providing raw materials and in assimilating by-product wastes due to consumption. The largesse of technology can only postpone or disguise the inevitable.”Professor Barbara Ward has written of this ecological imperative in particularly vivid language: We can forget moral imperatives. But today the morals of respect and care and modesty come to us in a form we cannot evade. We cannot cheat on DNA. We cannot get round photosynthesis. We cannot say I am not going to give a damn about phytoplankton. All these tiny mechanisms provide the preconditions of our planetary life. To say we do not care is to say in the most literal sense that “we choose death.”
There is a commonly-recognized link between laws and social values, but to ecologists a balance between laws and values is not alone sufficient to ensure a stable relationship between humans and their environment. Laws and values must also contend with the constraints imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts for such constraints, and thus environmental stability is threatened.
Historically, we have changed the environment to fit our conceptions of property. We have fenced, plowed and paved. The environment has proven malleable and to a large extent still is. But there is a limit to this malleability, and certain types of ecologically important resources – for example, wetlands and riparian forests – can no longer be destroyed without enormous long-term effects on environmental and therefore social stability. To ecologists, the need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature.
In sum, ecologists view the environmental sciences as providing us with certain laws of nature. These laws, just like our own laws, restrict our freedom of conduct and choice. Unlike our laws, the laws of nature cannot be changed by legislative flat; they are imposed on us by the natural world. An understanding of the laws of nature must therefore inform all of our social institutions.”

The ancient Roman Empire developed a legal theory known as the “Doctrine or the Public Trust. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general pubic. Our contemporary conceded about ‘the environment’ bear a very close conceptual relationship to this legal doctrine. Under the Roman Law these resources were either owned by no one (res Nullious) or by every one in common (Res Communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public Joseph L. Sax, Professor of Law, University of Michigan proponent of the Modern Public Trust Doctrine – in an erudite article “Public Trust Doctrine in natural resource law: effective judicial intervention”. Michigan Law Review Vol. 68 Part-1 page 4/3 has given the historical background of the Public Trust Doctrine as under:
“The source of modern public trust law is found in a concept that received much attention in Roman and English law – the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized, First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for the those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties – such as the seashore, highways, and running water – “perpetual use was dedicated to the public,” It has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government.

The Public Trust Doctrine primarily rests on the principle that certain resources like air sea, waters and the forests have such a great importance to the people as a whole that it would be wholly*** onjustilled to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority.
“Three types of restrictions on governmental authority are often though to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained in particular types of uses”.

The American law on the subject is primarily based on the decision of the United States Supreme Court in Illinois Central R.R. Company vs. Illinois 146 US 687 (1982). In the year 1869 the Illinois legislature made a substantial grant of submerged lands – a mile strip along the shores of Lake Michigan extending one mile out from the shoreline – to the Illinois Central Railroad. In 1873, the legislature changed its mind and repealed the 1869 grant. The State of Illinois sued to quit title. The court while accepting the stand of the State of Illinois’ held that the title or the State in the land in dispute was a little different in character from that which the State held in lands intended for sails. It was different from the title which the United States held in public lands which were open to preemption and sale. It was a title held in trust – for the people of the State that they may enjoy the navigation of the water, carry on commerce over them, and have liberty of fishing their in free from obstruction or interference of private parties. The addiction of the general control of the State over lands in dispute was not consistent with the exercise of the trust which required the Government of the State to preserve such waters for the use of the public. According to Professor ?? court in Illinois’ Central “articulated a principle that has become the central substantive thought in public trust litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the selfinterest of private parties”.

In Gould vs. Greylock Reservation Commission 350 Mass 410 (1966), the Supreme Judicial Court of Massachusetts took the first major step in developing the doctrine applicable to changes in the use of lands dedicated to the public interest. In 1888 a group of citizens interested in preserving Mount Greylock as a unspoiled natural forest, promoted the creation of an association for the purpose of laying out a public park on it. The State Ultimately acquired about 9000 acres, and the legislature enacted a statute crating the Greylock Reservation Commission. In the year 1953, the legislature enacted a statute creating an Authority to construct and operate on Mount Greylock an Aerial Tramway and certain other facilities and it authorised the commission to lease to the Authority any portion of the Mount Greylock Reservation. Before the project commenced, five citizens brought an action against both they Greylock Reservation Commission and the licency Authority. The plaintiffs brought the sult us beneficiaries of the pubic trust. The court has been the lease and the management agreement invalid on the ground that they were in excess or the statutory grant of the authority. The crucial passage in the judgment of the Court is as under:-
“The profit sharing feature and some aspects of the project itself strongly suggest a commercial enterprise. In addition to the absence of any clear or express statutory authorization of as broad a delegation of responsibility by the Authority as is given by the management agreement, we find no express grant to the Authority or power to permit use of public lands and of the Authority’s borrowed funds for what seems, in part at least, a commercial venture for private profit.”

Professor Sax’s comments on the above quoted paragraph from Gould decision are as under:-
“It hardly seems surprising, then that the court questioned why a state should subordinate a pubic park, serving a useful purpose as relatively undeveloped land, to the demands of private investors for building such a commercial facility. The court, faced with such a situation, could hardly have been expected to have treated the case as if it involved nothing but formal legal issues concerning the state’s authority to change the use of the certain tract of land ….. would, like Illinois Central, was contented with the most overt sort of imposition on the public interest; commercial interests had obtained advantages which infringed directly on public uses and promoted private profits. But the Massachusetts court as also confronted a more pervasive, if more subtle, problem – that concerning projects which clearly have some public justification. Such cases arise when, for example, a highway department seeks to take a pace of parkland or to fill a wetland.”

In Sacco vs. Development of Public Works 352 MASS 670, the Massachusetts Court restrained the Department of Public Works from filling a great pond as part of its plan to relocate part of State Highway. The Department purported to act under the legislative authority. The court found the statutory power inadequate and held as under:-
the improvement of public lands contemplated by this section does not include the widening of a State highway. It seems rather that the improvement of public lands which the legislature provided for … is to preserve such lands so that they may be enjoyed by the people for recreational purposes.”

In Robbins vs. Department of Public Works 244 N.E. 2d 577, the Supreme Judicial Court of Massachusetts restrained the Public Works Department from acquiring Fowl Meadows, “Wet lands of considerable natural beauty … often used for nature study and recreation” for highway use.
Professor Sax in the article (Michigan Law Review) refers to Prieweys. WisconSin State Land and Improvement Company 93 Wis 534 (1896), Crawford County Lever and Drainage district Nos.1, 182, Wis 404, city of Milwaukee vs. State 193 Wis 423, State vs. Public Service Commission 275 Wis 112 and opines that the Supreme Court of Wisconsin has probably made a more conscientious effort to rise above rhetoric and la work out a reasonable meaning for the public trust doctrine than have the courts or any other State”.

Professor Sax stated the scope of the public trust doctrine in the following words:-
If any of the analysis in this Article makes sense, it is clear that the judicial techniques developed in public trust cases need not be limited either to these few conventional interests or to questions of disposition of public properties. Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the delicate mixture of procedural and substantive protections which the courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining or wetland filling on private lands in a state where governmental permits are required.”

We may at this stage refer to the judgment of the Supreme Court of California in National Audubon Society vs. Superior Court of Alpine County 33 CAL. 3d 419. The case is popularly known as “the Mono lake case”, Mono lake is the second largest lake in California. the lake is saline. It contains no fish but support a large population of brine shrimp which feed vast numbers of nesting and migrating birds. Islands in the take protect a large breeding colony of California guits, and the lake itself serves as a haven on the migration route for thousands of birds. Towers and spires of tura on the north and south shores are matters of geological interest and a tourist attraction. In 1940, the Division of Water Resources granted the Department of Water and Power of the city of Los Angeles a permit to appropriate virtually the entire flow of 4 of the 5 streams flowing into the lake. As a result of these diversions, the level of the lake dropped, the surface area diminished, the gulls were adbondoning the lake and the scenic beauty and the ecological values of the Mono Lake were imperiled. The plaintiffs environmentalist – using the public trust doctrine – filed a law suit against Los Angeles Water Diversions, the case eventually came to the California Supreme court, on a Federal Trial Judge’s request for clarification of the States public trust doctrine. the Court explained the concept of public trust doctrine in the following words:-

“By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.” (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns “all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people.”

The Court explained the purpose of the public trust as under:-
“The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney, supra, 6 Cal.3d 251, “[p]ublic trust easements [were] traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. We went on, however, to hold that the traditional triad of uses-navigation, commerce and fishing-did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that “[t]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another. there is a growing public recognition that one of the most important public uses of the tidelands-a use encompassed within the tidelands trust-is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the secondary and climate or the area.”Mono Lake is a navigable waterway. It supports a small local industry which harvests brine shrimp for sale as fish food, which endeavor probably qualifies the lake as a “fishery” under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological-the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds, Under Marks v. Whitney, supra, 6 Cal.3d 251, it is clear that protection or these values is among the purposes of the public trust.”

The court summed up the powers of the state are trustee in the following words:-
“Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust……

The Supreme Court of California, inter alia, reached the following conclusion:-
“The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, 14 U.C.Davis LL. Rev.233, 230-257; Robie, Some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q.695, 710-711 (1972); Comment, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the state may have to approve appropriations despite foreseeanie harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm’n, 247 N.W. 2d 457, 462-463 (N.D. 1976), and to preserve, so far as consistent with the public interest, the uses protected by the trust.”

The Court finally came to the conclusion that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono basin.

It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important land,s for example fresh water, wetlands or riparian forests. The observation of the Court in Mono Lake case to the effect that the protection of ecological values is among the purpose of public trust, may give rise to an argument that the ecology and the environment-protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. vs. Mississippi 108 S.Ct. 791 (1988), the United States Supreme Court upheld Mississippi’s extension of public trust doctrine to lands underlying nonavigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the pubic trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.

Our legal system – based on English Common Law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open land sin their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The esthetic use and the prestime glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources.

Coming to the facts of the present case, large area of the bank of river Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. Both the lease – transactions are in patent breach of the trust held by the State Government. The second lease granted in the year 1994 was virtually of the land which is a part of river-bed. Even the board in its report has recommended deleasing of the said area.

This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. JT 1996(7) S.C.375 explained the “Precautionary Principle” and “Polluters Pays principle” as under:-
Some of the salient principles of
“Sustainable Development”, as culled out from Brundtland Report and other international documents, are inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays” principle are essential features of “Sustainable Development”. The “Precautionary Principle” – in the context of the municipal law – means:
(i) Environment measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The “Onus of proof” is on the actor or the developer/industrialist to snow that this action is environmentally benign.
“The Polluter Pays” principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs. Union of India JT 1996 (2) 196. The Court observed, “We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country”. The Court ruled that “Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on”. Consequently the polluting industries are “absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas”. The “Polluter Pays” principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental of the damaged environment is part of the process of “Sustainable Development” and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of the reversing the damaged ecology The precautionary principle and the polluter pays principle have been accepted as part of the law of the land.

It is thus settled by this Court that one who pollutes the environmental must pay to reverse the damage caused by his acts.

We, therefore, order and direct as under:
1. The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.
2. The prior approval granted by the Government of India, Ministry of Environment and Forest by the letter dated November 24, 1993 and the lease-deed dated April 11, 1994 in favor of the Mote are quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions.
3. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the river bed and the banks of the river Beas has to be removed and reversed. We direct NEERI through its Director to inspect the area, if necessary, and give an assessment of the cost which is likely to be incurred for reversing the damage caused by the Mote to the environment and ecology of the area, NEERI may take into consideration the report by the Board in this respect.
4. The Motel through its management shall show cause why pollution fine in addition be not imposed on the Motel.
5. The Motel shall construct a boundary wall at a distance of not more than 4 meters from the cluster of rooms (main building of the Motel) towards the river basin. The boundary wall shall be on the area o the Motel which is covered by the lease dated September 29, 1981. The Motel shall not encroach/cover/utilise any part of the river basin. The boundary wall shall separate the Motel building from the river basin. The river bank and the river basin shall be left open for the public use.
6. The Motel shall not discharge untreated effluent into the river. We direct the Himachal Pradesh Pollution Control Board to inspect the pollution control devices/treatment plants set up by the Motel. It the effluent/waste discharged by the Mote is not conforming to the prescribed standards, action in accordance with law be taken against the motel.
7. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into river Beas. The Board shall inspect all the hotels/institutions/factories in Kuliu-Manali area and in case any of them are discharging untreated effluent/waste into the river, the Board shall take action in accordance with law.
8. The Motel shall show cause on December 18, 1996 why Pollution-fine and damages be not imposed as directed by us., NEERI shall send its report by December 17, 1996. To be listed on December 18, 1996.

The writ petition is disposed of except for limited purpose indicated above.

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IN THE SUPREME COURT OF INDIA
GURSHARAN SINGH …PETITIONER
Vs.
STATE OF PUNJAB …RESPONDENT

DATE OF JUDGMENT: 10/09/1996

BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION: JT 1996 (8) 189

J U D G M E N T

M.K. Mukherjee.J.

By his judgment and order dated June 12,1993 the Additional Judge, Designated Court, Amritsar convicted and sentenced the appellant under Section 387 and 392 IPC and Section 3 of the Terrorist and Disruptive Activities (prevention) Act, 1987 (‘TADA’ for short). Aggrieved thereby the appellant has preferred this appeal under Section 19 of TADA.

The case of the prosecution is as under:

2(a). Nirmal Singh carries on business in silver ornaments and lives with his wife Kuldip Kaur in Gali No.1, Tej Nagar, Amritsar. Formerly the appellant was a resident of the same locality and was known to Nirmal Singh. IN or about the month of June 1990 Nirmal Singh received a letter from the appellant demanding a sum of Rs. 2 lacs for purchase of weapons for the terrorists and threatening that in case the money was not paid he (Nirmal Singh) would have to face dire consequences.

Nirmal Singh talked with his wife over the demand and went to meet the appellant who had by then shifted to Gali Beghwali and was running a wheat bran depot. The appellant took away the letter from him and told that he would meet the members of the group at whose instance he had written that letter. A few days later the appellant came to the house of Nirmal Singh and asked him to accompany him to settle the amount to be paid in terms of his letter. Along with the appellant when Nirmal Singh went to the depot of the former he found a man sitting there with a revolver in his hand. That man asked Nirmal Singh after putting him in fear of death, whether he was prepared to pay the amount demanded. On his expressing inability to pay the demanded sum a bargain was struck whereunder Nirmal Singh was to pay Rs.70,000/- to the appellant within three days. Within the stipulated time Nirmal Singh however could collect only Rs.50,000/-; and accordingly with the notes wrapped in a polythene bag and accompanied by Manohar Singh, Nirmal Singh went to the depot of the appellant and handed over the same to him and undertook to pay the balance of Rs.20,000/- with in two months. The appellant told him to that in case he reported the matter to the police he would be killed.

Though, owing to the threat so meted out, Nirmal Singh did not lodge any complaint with the police about the extortion, Gurmit Chand, Inspector of Police (Operation), Amritsar got that information on August 1,1990 and, on that basis, registered a case against the appellant and one Balwinder Singh.

(b) after registering the case Gurmit Chand took up investigation and rended the house of the appellant on August 2,1990 and arrested him. On interrogation he made a statement that he had kept concerned currency notes worth Rs.20,000/- under bundles of wheat bran in his deposit: and pursuant thereto two bundles of currency notes each containing Rs.10,000/- were recovered therefrom. Gurmit Chand seized those bundles of currency notes in the presence of Manohar Singh (P.W.2), who had accompanied the police party. On completion of investigation he submitted the charge sheet against the appellant.

3 To prove its case the prosecution examined five witnesses, namely Kuldip Kaur (P.W.1), Manohar Singh (P.W.2) Nirmal Singh (P.W.3), inspector Gurmit Chand (P.W.4) and inspector Rattan Lal (P.W.5). Of them P.W.1) wife of Nirmal Singh, did not fully support the prosecution case and Manohar Singh (P.W.2) To all for which both of them were declared hostile.

4. The case made out by the appellant, earlier pleaded not qulity to the charges levelled against him and claimed to be tried, in his examination under Section 313 Cr.P.C.

was that Nirmal Singh was a habitual during and frequently best his wife. A few days before his arrest , Nirmal Singh had beaten his wife while under the influence of liquor and he issue he had a quarrel with Nirmal Singh and his father in course of which they exchanged blows. Offended by his such interference in their family affairs NIrmal Singh and his father got the case falsely registered against him with the help of a retired police officer, in support of his above defence the appellant examined Surinder Singh (D.W.1)

5. On perusal of the impugned judgment we find that the trial judge has discussed the entire evidence on record and given detailed reasons for accepting the case of the prosecution in preference to that of the defence.

6. We have the learned counsel appearing for the parties at length and gone through the entire evidence on record.

From the evidence of Nirmal Singh we find that he reproduced the prosecution case detailed earlier and that though he was cross examined at length, the defence could not succeed in discrediting him in any way. Though Kuldip Kaur (P.W.1), turned hostile she partly supported the prosecution case and corroborated the evidence of her husband when she stated that she had found her husband disturbed and when asked the reason therefore, he disclosed that he had received a letter demanding money form him. She however did not state that her husband had told the name of the person who made the demand but, later on she testified that Gursharan Singh (the appellant) had come to their house and that her husband had a talk with the appellant. Her further evidence on being cross examined by the prosecution, is that her husband had told him that he had paid ransom to the appellant.

7. To prove the alleged recovery of Rs.20,000/-, out of the amount of Rs.50,000/- paid to the appellant form his depot the prosecution relied upon the evidence of the two Inspectors of Police as Manohar Singh who was a signatory to the recovery memo, turned hostile. The oral testimonies of the above two witnesses coupled with the contemporaneous documents which they prepared in respect of the disclosure statement of the appellant (Ext.PD)_ and the recovery of the currency notes (Ext.PE) pursuant thereto fully support the prosecution case and we find no reason to disbelieve their evidence. It is, of course, true that in the absence of any marks of identification on those currency notes in order to connect then with the notes which were handed over by Nirmal Singh to the appellant, it cannot be said that the prosecution case stands conclusively proved solely on the basis of the above recovery, but the disclosure statement made by the appellant and the recovery pursuant thereto substantially and the recovery pursuant thereto substantially corroborates the testimony of Nirmal Singh.

8. Coming now to the defence case and the evidence of Surindar Singh in support thereof, we find from the uncontroverted evidence of Kuldip Kaur, that at the material time the appellant had shifted his residence from their locality and the other evidence on record shows that he was then a resident of Gali Baghwali. There was, therefore, no opportunity for the appellant to see Nirmal Singh and his wife fighting in their house and consequently the question of his intervention therein could not have arisen. It must therefore be help that the defence story as given out by D.W.1 is untrue.

9. For the foregoing discussion we are of the opinion that the trial judge was fully justified in concluding that the prosecution succeeded in proving its case. The trial Judge however was not justified in convicting the appellant both under Section 387 and Section 392 IPS, as Section 390 IPC lays down that in all robberies there is either theft or extortion: and that necessarily means that is person cannot be convicted both for extortion and robbery, which is a special aggravated form of the former. As in the instant case, Nirmal Singh was not induced to pay the money on the day he was put on fear of instant death but a few days later, he cannot be said to have committed ”robbery’ within the meaning of Section 390 IPC for one of the ingredients of this offence is that the offender ‘induces the person so put in fear then and there (emphasis supplied) to deliver up the thing extorted”. Consequently the appellant’s conviction under Section 392 IPC for committing robbery has got to be set aside.

10. For the forgoing discussion we uphold the conviction and sentence of the appellant under Sections 387 IPC and 3 of TADA but set aside his conviction and sentence under Section 392 IPC.

The appeal is thus disposed of.

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S. JAGANNATH …PETITIONER
Vs.
UNION OF INDIA & ORS. …RESPONDENT

DATE OF JUDGMENT: 11/12/1996
BENCH: KULDIP SINGH, S. SAGHIR AHMAD.

J U D G M E N T

Kuldip Singh, J.

Shrimp (Prawn Culture Industry is taking roots in India. Since long the fishermen in Indian have been following the traditional rice/shrimp rotating acqua culture system. Rice is grown during part of the year and shrimp and other fish species are cultured during the rest of the year.

However, during the last decade the traditional system which, apart from producing rice, produced 140 kgs. of shrimp per hectare of land began to give way to more intensive methods of shrimp culture which could produce thousands of kilograms per hectare. A large number of private companies and multi-national corporations have started investing in shrimp farms. In the last few years more than eighty thousand hectares of land have been converted to shrimp farming. India’s Marine export weighed in a 70,000 tonnes in 1993 and these exports are projected to reach 200 thousand tonnes by the year 2000. The shrimp farming advocates regard acquaculture as potential savior of developing countries because it is a short-duration crop that provides a high investment return and enjoys and expanding market. The said expectation is sought to be achieved by replacing the environmentally benign traditional mode of culture by semi-intensive and intensive methods.

More and more areas are being brought under semi-intensive and intensive modes of shrimp farming. The environmental impact of shrimp culture essentially depends on the mode of culture adopted in the shrimp farming. Indeed, the new trend of more intensified shrimp farming in certain parts of the country – without much control of feeds, seeds and other inputs and water management practices – has brought to the fore a serious threat to the environment and ecology which has been highlighted before us.

This petition under Article 32 of the Constitution of India – in public interest – has been filed by S.

Jagannathan, Chairman, Gram Swaraj Movement, a voluntary organisation working for the upliftment of the weaker section of society. The petitioner has sought the enforcement of Coastal Zone Regulation Notification dated February 19, 1991 issued by the Government of India, stoppage of intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas, prohibition from using the waste ands/wet lands for Prawn farming and the constitution of a National Coastal Management Authority to safeguard the marine life and coastal areas. Various other prayers have been made in the writ petition. This Court issued notice by the order dated October 3, 1994. On December 12, 1994, this Court passed the following order:- “Ministry of Environment and Forests, Govt. of India issued a Notification dated February 19, 1991, under Clause (d) of Sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 wherein it was declared that the coastal stretches of seas, bays, estuaries, creeks, rivers and backwater which are influenced by the tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL are Coastal Regulation Zone. The Central Govt. has imposed various restrictions in the said Notification. Mr. Mehta, learned advocate appearing for the petitioners states that despite the issue of the Notification unauthorised industries and other construction is being permitted by various States within the area which has been declared as Coastal Regulation Zone …………….Meanwhile we direct all the respondent States not to permit the setting up of any Industry or the construction of any type on the area at least upto 500 metres from the sea water at the maximum High Tide. The above said area i.e. from the High Tide Level upto 500 metres shall be kept free from all construction of any type”.

The Union of India and States/Union Territories of Gujarat, Maharashtra, Orrisa, Kerala, Tamil Nadu, West Bengal, Goa, Pondicherry, Daman/Deu, Andaman/Nichobar and Lakshdeep have filed replies to the writ petitions. This Court on March 27, 1995 passed the following order:- “This Public Interest petition is directed against the setting up of Prawn farms on the coastal areas of Andhra Pradesh, Tamil Nadu and other coastal States. It is alleged that the coastal States are allowing big business houses to develop prawn farms on a large scale in the Ecologically fragile coastal areas of the States concerned in violation of Environment Protection Act, 1986 and the rules framed thereunder and various other provisions of law. It is also alleged that establishment of prawn farms on rural cultiviable lands is creating serious environmental, social and economic problems for the rural people living along with the coastal bed specially in the east coast……………… Meanwhile, we direct NEERI, Nagpur through its Director to appoint in investigating team to visit the coastal areas of the States of Andhra Pradesh and Tamil Nadu and give its report to this court regarding the various farms which are being set up in the said area.

In case the investigating team finds that the ecologically fragile area is being environmentally degraded then it shall suggest the remedial measures in that respect.

The NEERI team shall keep in view the Notification dated February 19, 1991 of the Ministry of Environment and Forests, Govt. of India, issued under the Environment Protection Act, 1986 and also the provisions of the Tamil Nadu Agriculture (Regulation) Act, 1995. The NEERI shall submit its report before April 30, 1995”.

Pursuant to the above quoted order, the National Environmental Engineering Research Institute, Nagpur (NEERI) submitted its report dated April 25, 1995 before this Court.

This Court further directed NEERI to send an expert team to the coastal areas in other States and file its report within two months. the report was filed in this Court within the specified time. This Court on May 9, 1995 passed the following order:- “This matter be listed for final hearing on 4th August, 1995.

Meanwhile we direct that no part of agricultural lands and salt farms be converted into conmmercial aquaculture farms hereinafter. We further direct that no ground water withdrawal, be allowed for aquaculture purposes to any of the industries whether already existing or in the process of being set up.

No further shrimp farms or any acquaculture farms be permitted to be s et up in the areas in dispute hereinafter.

We direct the respective State Governments (the Collector concerned or any other Officer appointed by the Government) to provide free access through acquaculture units to the sea coast to the fishermen/tourists after hearing the parties concerned.

Mr. Mehta has contended that due to these farms occupying the most of the coastal areas it has become difficult for the villagers to search for fresh water. The State Govt. may examine this aspect and provide water by way of tankers wherever it is necessary.

So far as the farmers in the State of Tamil Nadu are concerned they are all represented through of Kapil Sibal and his team. We direct the State of A.P. to send a copy or the order of this Court to all the aquaculture farms in the State of A.P. informing them that the matter shall be taken up by this Court for final hearing on 4th August, 1995.

This may be done by the State of A.P. by the end of June, 1995.

We direct the Pondicherry Administration to send a copy of the order of this Court to all the aquaculture farms in Pondicherry informing them that the matter shall be taken up by this Court for final hearing on 4th August, 1995.

This may be done by the Pondicherry Admn. by the end of June 1995.

We further direct the Superintendent of Police and the collector of the areas concerned to see that the order of this Court specially the directions given are meticulously complied with by all the farms.” Before finally hearing this matter, this Court passed the following order on August 24, 1995:- “We are of the view that it would be in the interest of justice to have full representation before us so far individual aqua-farms in various States/Union Territories are concerned. We, therefore, adjourn the hearing to October 17, 1995. Meanwhile, we direct the coastal States/Union Territory Governments, through their learned counsel who are present in the Court, to issue individual notices to all the aqua-farms which are located in their respective territories. It may be stated in the notices that the same are being issued under the direction of this Court. it should also be specifically mentioned that if they want to be heard in these matters by this Court, they be present through their counsel/representatives in the Court, on the next date of hearing, which is October 17, 1995. We also direct the Marine Products Exports Development Authority (MPEDA), through its counsel Mr. Harish N.

Salve, to do the same exercise at its level also. Apart from that, we further direct all the State Governments/Union Territories to issue public notices in this respect in daily newspapers which have circulation in the coastal areas, informing the aqua-farms regarding the hearing of these matters in this Court, on October 17, 1995. This may be done on two consecutive days.

Notices and publication be completed within 3 weeks from today. Meanwhile, we direct all the State Governments/Union Territories not to give fresh licences/permission for setting up/establishment of any aqua-farm in their respective Territories till further orders.” Coastal Pollution, universally, is an emerging problem.

So far as India is concerned it has already become a serious environmental problem. Besides direct dumping of waste materials in the seas discharge through marine outfalls, large volumes of untreated of semi-treated waste generated in various land-based sources/activities ultimately find way to the seas. The coastal waters directly receive the inland waters, by way of surface run-off and land-drainage, ladden with myriad of refuse materials – the rejects or wastes of the civilisation. Apart from inputs from rivers and effluent-outfalls, the coastal areas are subject to intensive fishing, navigational activities, recreations, ports, industrial discharge and harbours which are causative factors of water quality degradation to varying degrees.

Contrary to the open sea, the changes in the quality of coastal waters, are much greater due to river discharges under tidal conditions.

With noticeable increase in marine pollution and the consequential decline in marine resources, serious concern was expressed in the United Nations’ Conference on Human Environments in Stockholm (1972) attracting global attention towards the urgent need of identifying the critically polluted areas of the marine environments, specially in coastal waters, for urgent remedial actions. The Conference unanimously resolved that the littoral States should take early action at their National level for assessment and control of marine pollution from all sources and carry out systematic monitoring to ascertain the efficacy of the pollution regulatory actions taken by them. In the background of the Stockholm Conference and in view of 1982 Convention on the “Law of the Sea” defining jurisdiction of territorial waters, a model comprehensive Action Plan has been evolved under the United Nations’ Environment Programme (UNEP). Keeping with the international commitments and in greater National interest, the Government of India and the Governments of the coastal States are under a legal obligation to control marine pollution and protect the coastal-environments.

According to the facts placed on record by the Central Pollution Control Board the Board the coastline of India’s mainland is about 6000 km long. But or the total landmass of about 3.28 million sq. kms nearly 0.15 million sq. kms of coastal land-belt (considering 25 km landward distance) girdles three sides of the Country’s sea front which in turn underlays about 3.13 million sq. km sea-bed upto the territorial limit. The Country being riverine, has 14 major, 44 medium and 55 minor rivers which discharge annually about 1566 thousand million cubic meters of water through land drainage into the seas transporting a wide range of pollutants generated by land-based activities. Nine out of fourteen major rivers meet the sea in the east coast (Brahmaputra through Bangladesh) and the remaining five in the west coast (Indus through Pakistan).

Besides land drainage, there are large number or marine coastal out falls discharging directly or indirectly industrial and municipal effluents into seas. Uncontrolled disposal of land-based waste into the seas, through rivers and effluent outfalls, is a major cause of pollution of coastal waters. There are nine coastal States and one Union Territory (UT) in India namely, Gujarat, Maharashtra, Goa, Karnataka, Kerala, Tamil Nadu, Pondicherry (UT), Andhra Pradesh, Orissa and West Bengal, More than one-fourth of the total population of the country is settled in the coastal areas. The Board in its report regarding “Pollution Potential of Industries in Coastal Areas of India” dated November, 1995 gives the following date regarding aquaculture farms:

“The effluent generation from aquaculture farms in the east coast only, in absence of data on west coast farms, is to the tune of 2.37 million cubic meters per day, out of which Andhra Pradesh has the lion share of about 2.12 million cubic meters per day…. It may be noted that in all the States, in most cases, the effluent discharge is indirect (through estuaries, creeks, canals, harbours). It may also be noteworthy that the effluents from aquaculture farms are discharged directly/indirectly into the coastal waters practically without any treatment. For disposal of solid waste, on the other hand, open dumping and land filling is a common practice.” In marine pollution control utmost importance has t b given to the beaches. The beaches and other areas of special interest are to be maintained aesthetically and at permissible levels of enteric bacteria. Protection of ecologically sensitive areas and land-sea interface resource areas is equally important. The Central Board for the Prevention and Control of Water Pollution (Central Board) in its report “coastal pollution control series COPOCS/1/1982” recommended as under:- “- the mangrove forest at Pichavaram, the bird sanctuary and forest areas at Point Calimere and Coral reef at Mandapam are ecologically sensitive areas warranting special watch and preservation.

– recreational coastal portions of some sector of the stretch under investigation such as Marine and Elliot beaches at Madras, Mahabalipuram, Pondicherry beach at Pondicherry and Poompuhar at the confluence of the river Cauvery with the sea are to be maintained at appropriate quality level.

– Continuous monitoring of the coastal waters especially heavy metals and pesticides in the biota should be carried out to detect possible biomagnification of some toxic chemicals and to provide early warning.” The Central Board in its report “Coastal Pollution Control Series COPOCS/S/1986-87” sought protection of the ecologically fragile areas in the following terms:- “The mangrove forest and the wildlife sanctuary in Coringa Island, the Pulicat lake and the bird sanctuary at Nelapattu are the ecologically sensitive areas warranting special attention and protection. No industrial activity which may pose a danger to the ecosystem in these areas should be permitted.

At Pulicat Lake Area, Machilipatnam, Naupada and Ichapuram, salt pan irrigation is practised. No water polluting industry should be allowed nearby.

The domestic sewage and the industrial effluents entering the Kolleru Lake through various drains be properly treated so that no pollutants enter the coastal water through Upputeru drain”.

Shrimps are basically marine. Shrimp are also called Prawns. In commercial jargon, marine prawns are referred to as shrimps and freshwater ones as prawns. Prawns and shrimps are invertebrates and are decided crustaceans. Sea is their home and they grow to adulthood and breed in the sea. The progeny start their life by drifting into estuaries and such other brackishwater areas for feeding. In about 4-6 months the larvae grow into adolescence and go back to their real home of birth, the sea.

Aquaculture has been practised for many centuries by small farmers and fisher folk in Asia to improve their living conditions. However, there is a vast difference between eh traditional methods and the new commercialised system. The traditional aquaculture, including shrimp, is usually small-scale, using low inputs and relies on natural tidal action for water-exchange. In some countries, such as India, Bangladesh and Thailand, there is a tradition of rice/shrimp rotating, with rice grown part of the year and shrimp and other fish species cultured the rest of the year.

Chemicals, antibiotics and processed feeds are not used in the traditional method. In this low-yield, natural method, the harvest is small but sustainable over long periods. It has no adverse affect on the environment and ecology. The modern method, on the other hand, is larger is scale and intensive or semi-intensive in nature. It is owned and operated by commercial and often foreign-owned companies which mainly export the shrimp. In intensive aquaculture, selected species are bred using a dense stocking rate. To maintain the very crowded shrimp population and attain higher production efficiency, artificial feed, chemical additives and antibiotics are used.

The Food and Agriculture Organisation (FAU) – an organ of United Nations Organisation (UNU) – published a report in April, 1995 on a Regional Study and workshop on the Environmental Assessment and Management or Aquaculture Development. Copy of the report has need placed on record by Mr. Santosh Hedge, learned counsel for the State of Karnataka. India was one of the 16 countries participated in the workshop. Dr. K. Alagarswami, Director, Central institute of Brackishwater Aquaculture, Madras presented a paper titled “the current status of aquaculture in India, the present phase of development and future growth potential”. (hereinafter called Alagarswami report). It has been published as an Annexure to the workshop-report published by the FAO. Para 5.1.2 of Alagarswami report gives various types of technologies adopted by the aquaculture industry in India. It would be useful to reproduce the same hereunder:- “5.1.2 Types of technology – changes in technology with time Traditional: Practised in West Bengal, Kerala, Karnataka and Goa, also adopted in some areas of Orissa. Coastal low-living areas with tidal effects along estuaries, creeks and canals; impoundments of vast areas ranging from 2-200 ha in size. Characteristics; fully tidally-fed; salinity variations according to monsoon regime; seed resource of mixed species from the adjoining creeks and canals by auto-stocking; dependent on natural food; water intake and draining managed through sluice gates depending on local tidal effect; no feeding; periodic harvesting during full and new moon periods;

collection at sluice gates by traps and by bag nets; seasonal fields alternating paddy (monsoon) crop with shrimp/fish crop (inter monsoon); fields called locally as bheries, pokkali fields and Khazan lands.

Improved traditional: System as above but with stock entry control;

supplementary stocking with desired species of shrimp seed (P. monodon or P. indicus); practised in ponos of smaller area 2-5 ha.

Extensive : New pond systems; 1-2 ha ponds; tidally fed; no water exchange, stocking with seed; local feeds such as claims, snails and pond-side prepared feed with fishmeal, sova, oilcake, cereal flour etc.; wet dough ball form;

stocking density around 20,000/ha.

Modified Extensive System as above;

pond preparation with tilling, liming and fertilisation; some water exchange with pumpsets;

pellet feeds indigenous or imported; stocking density around 50,000/ha.

Semi-intensive New pond system;

ponds 0.25 to 1.0 has in size;

elevated ground with supply and drainage canals; pond preparation methods carefully followed; regular and periodic water exchange as required; pond aerators (paddle wheel) at 8 per ha; generally imported feed with FCR better than 1:1.5 or high energy indigenous feeds; application of drugs and chemicals when need arises; regular monitoring and management stocking density 15-25/m2.

Intensive Ponds 0.25-0.50 ha in size; management practices as above; 4 aerators in each pond;

salinity manipulation as possible;

central drainage system to remove accumulated sludge; imported feed;

drugs and chemicals used as prophylactic measures; control and management; stocking density 20-35/m2 Changes in technology: As already indicated. The initial concept and practice was to develop tide-red systems, this slowly gave way to a pump-fed systems. Presently, the emphasis is on seawater based farming systems for P. monodon with a water intake system extending far into the sea with submerged pipelines, pier system and gravity flow. From sandy clay soils, the present coastal farms are located in sandy soils also with seepage control provisions.” Alagarswami report further states as under:- “The Ministry of Environment and Forests, Government of India issued a Notification S.U. No.114 (E) in 1991, under “The Environment (Protection) Act, 1986″ declaring coastal stretches as Coastal Regulation Zones (CRZ) and regulating activities in the CRZ.

This Notification ha simplications for coastal aquaculture, particularly those activities within 500 m from the High Tide Line…. No regulations to control the use of chemicals and drugs exist. Pollution Control Board general regulations on effluent discharges include hazardous substances, but they are not specific to aquaculture. In some regions, there is indiscriminate use of chemicals and pesticides, particularly in shrimp farms….

Under the Notification of Union Ministry of Environment and Forests, each maritime State is expected to have its own coastal zone management plan, which would consider aquaculture zonation requirements, along with shoreline development. The zone up to 500 metres from the waterline along the sea is restricted against any construction activity.” Alagarswami report high lights various environmental and social problems created by the Coastal Acquaculture. The relevant part of the report is as under:- “Physical factors Shrimp farming along the coastal area of the whole country is developing at a rapid rate. Huge cylone protection dykes and peripheral dykes are constructed by the shrimp farmers. In many cases as in Kandleru creek (Andhra Pradesh), the farm areas are the natural drainage areas for floods.

Due to physical obstruction caused by the dykes, the natural drain is blocked and flood water acumulates in the hinterland villages.

Protests are being made by people in some of the villages against such dykes. The ponds are constructed right on the bank of the creeks without leaving any area for draining of flood water.

Right of passage of coastal fishermen The shrimp farms do not provide access to the beach for traditional fishermen who have to reach the sea from their villages. As farms are located and entry is restricted, the fishermen have to take a longer route to the sea for their operations. This is being objected to by traditional fishermen.

Drinking water problems The Corporate sector has purchased vast areas adjoining the villages which, in some cases, include drinking water public wells of the villages. The villagers cannot use these wells anymore as they are located in private land owned by the farmers. This is causing social problems.

Salinisation It is reported that salinisation of land is spreading further landwards and the wells yield only saline water. In Tamil Nadu and Andhra Pradesh protests have been voiced against salinisation. Some of the socially conscious shrimp farm operators are providing drinking water to the affected villages by laying a pipeline from their own freshwater source wherever available. Apart from wells. The agricultural farms adjoining the shrimp farms are reported to be affected. However, there is increasing conversion of paddv fields as in the Bhimavaram area of Andhra Pradesh and even on the fringes of Chilka Lake into shrimp farms.

Mangrove areas The status report on mangroves of India published by the Ministry of Environment and Forests (GO1, 198/) is shown in Table 5. In the earlier years, vast areas of mangrove were destroyed for agriculture, aquaculture and other uses. In the more recent years, the mangroves have been protected by law.

However, the satellite imagery pictures show destruction of mangroves in Krishna and Guntur Districts of Andhra Pradesh for construction of shrimp farms.

Gujarat State is planning major shrimp culture programmes in the Narmada region adjoining Gulf at Cambay. Protection of mangroves should receive attention.

Alagaraswami report further indicates that the demand for shrimp seed is growing with the expansion of shrimp culture and hatchery production is unable to meet it.

Exploitation of natural seed resources is growing unabated, particularly in West Bengal, Orissa and Andhra Pradesh.

Large quantity of fry by-catch are discarded by the fry collectors because their value is insignificant. The report states “elimination of fry in the fry by-catch is not only detrimental to the predators thriving on them, but it also creates an ecological imbalance”.

Agitations by the environmentally conscious people of the coastal-areas against polluting acquaculture technologies has been noticed by Alagaswamy report as under:- People’s awareness People in general have become aware of the environmental issues related to aquaculture. A current case in point is the agitation against a large commercial farm coming up in Chilka Lake (Orissa). People have demanded an EIA of the project.

People in Nellore District in Andhra Pradesh have raised environmental issues and called for adoption or environmentally- friendly technologies and rejection of “imported” technologies from regions which have suffered environmental damage. Protests have been voiced by the local people in Tuticorin area in Tamil Nadu. Both print and visual media take up environmental issues with a great deal of zeal. This appears to augur well for regulating coastal shrimp farming with eco-friendliness”.

The intensive-farming technique and the pollutants generated by such farming have been noticed by Alagaswamy in the following words:- “In intensive farming, stocking densities are on the increase. In one instance, P. Indicus was stocked at 70 post larvae/m2, almost reaching the levels of Taiwan before the disease outbreak in 1988. This necessitates heavy inputs of high energy feeds, the use of drugs and chemicals and good water exchange. The organic load and accumulation of metabolites in the water drained into the sea should be very high as could be seen from the dark-brown colour and consistency of the drain water.” The Alagaswamy report further states that paddy fields are being converted to shrimp farms, as in some parts of Andhra Pradesh (e.g. Bhimavarami, Some paddv lands along the fringe of Chilka Lake have been last to shrimp farming.

The report suggests future management strategies – quoted hereunder – for farms and Government in resolving any conflicts or environmental problems:- “As shrimpfarming is developing fast, the following strategies have been developed for avoiding problems which have arisen in other countries (or reducing their impact):

1. India needs to boost production of shrimp through aquaculture with environment and development as a unified motto.

2. Since the area available is vast, this can be achieved by application of environmentally – friendly technologies for optimal production rates against maximum production rates.

3. Sustainable development or shrimp aquaculture should be guided by the principles of social equity, nutritional security, environmental protection and economic development with a holistic approach to achieve long-term benefits.

4. New definitions and parameters of extensive, semi-intensive and intensive culture systems as suited to Indian conditions and Government policies rather than copying models of other countries (particularly those which have rushed and suffered) and the development or guidelines thereof.

5. Diversification of species among shrimps and to integrate fish wherever possible to suit the different agro-climatic and aquatic zones of the country.

6. Careful development of Coastal Zone Management Plans under CRZ to meet the requirements of coastal aquaculture development plans with some flexibility (as required) for specific areas.

7. Indentification of aquaculture zones or careful consideration and provision of buffer zones against possible impact on other land uses:

also intermediate buffer zones within aquaculture zones.

8. Consideration of the living, social and vocational needs of local people in villages/towns in aquaculture plans in order to avoid conflicts.

9. Development of sets or regulations on use/ban of drugs and chemicals, including antibiotics, in hatcheries and farms; on abstraction of groundwater and salinisation problems.

10. Development of standards for effluent discharge as applicable to local conditions.

11. Development of viable technologies for secondary aquaculture to gainfully utilise nutrient enriched farm effluents and encourage farmers to adopt such technologies with the necessary support.

12. In view of the fact that coastal farms are located generally in remote areas and cannot be monitored by external agencies on a reasonably effective basis, farmers/group of farmers should equip themselves with facilities to monitor possible important parameters at periodic intervals and maintain such records for their own benefits and for production to inspecting agencies.

13. Brackishwater Fish Farmer Development Agencies to be strengthened in all respects, including environmental management and disease diagnosis, prevention and control, through appropriate training and setting up district level laboratories for essential analytical and diagnostic work.

14. Manpower development at managerial and technical level.

15. Research-extension-farmer group meet for appropriate technologies and feedback.

16. Effective monitoring and enforcement of regulations, use of nets and fishing in any specified water for a period not exceeding two years. Thus, legal provisions were made on fisheries matters in India nearly a century ago” Alagarswami’s report identifies salinisation or land salinisation of drinking water wells, obstruction of natural drainage of flood water, passage of access to sea by fishermen and public, self-pollution or ponds, pollution of source water, destruction or mangroves land subsidence and pressure on wild seen resources and consequences thereof as environmental issues in shrimp culture. Para 6.2 of the report lists the following preventive measures:- “6.2 PREVENTION (i) Aquaculture units causing harmful changes to the environment;

and (ii) Non-aquaculturists from modifying the environment to the detriment of aquaculture production units.

1. Enforcement of legal provisions under the relevant Acts of the Government.

2. CRZ regulations to consider specific needs of aquaculture as an expanding production activity and the Coastal Zone Management Plans of the States/Union Territories to carefully plan taking into consideration present situation and future needs.

3. Early development of regulations on permissible levels of most significant parameters of water quality keeping in view the limited intervention of aquaculture for promoting growth of stock in the medium.

4. Environment Impact Assessment (EIA) and Environmental Monitoring Plan (EMP) to be insisted upon for larger units and self assessment/monitoring for smaller units, subject to verfication at inspection.

5. Zonations and appropriate siting of farms; not to proliferate indiscriminately but to develop in a planned manner for sustaining production (Alagarswami, 1991).

6. More hatcheries to be encouraged and supported to meet seed demands to reduce pressure on wild seed resources.

7. Feed mills to maintain quality of feeds and to ensure water stability as required;

self/external inspection mechanism to be introduced to maintain specific standards.

8. Mangrove forests not to be touched for aquaculture purposes.” The FAO report – based on Alagaswami report states the impact of aquaculture on the environment, in India, as under:- “The impact of aquaculture on the environment are as follows;

By shrimp culture: Loss of agricultural land and mangroves, obstruction of natural drains, salinisation, destruction of natural seed resources, use of drugs and chemicals, and extraction of groundwater. Social conflicts have arisen.” Alagarswami report – quoted by us extensively – is an authentic document relating to the functioning of shrimp culture industry in India. It has rightly been suggested in the report that sustainable development should be the guiding principle for the shrimp aquaculture. The industry must develop under the unified motto of Environment and Development. Environmentally-friendly technologies are to be adopted with a view to achieve optimal production. The report calls for a ban on the use of drugs, chemicals and antibiotics in the shrimp culture farms. The report clearly indicates that except the traditional and improved traditional, the other methods or strimp aquaculture are polluting and as such may have an adverse impact on the environment.

Mr. M.C. Mehta, learned counsel for the peititoner, has taken us through the NEERI reports and other voluminous material on the record. He has vehemently contended that the modern – other than traditional – techniques of shrimp farming are highly polluting and are detrimental to the coastal environment and marine ecology. According to him only the traditional and improved traditional systems of shrimp farming which are environmentally friendly should be permitted. Mr. Mehta has take us through the Notification dated February 19, 1991 issued by the Government of India under Section 3 of the Environment (Protection) Act, 1986 (the Act) (URZ Notification) and has vehemently contended that setting up of shrimp farms on the coastal stretches of seas. Days, estuaries, creeks, rivers and backwaters upto 500 meters from the High Tide Line (HTL) and the line between the Low Tide Line (LTL) and the HTL is totally prohibited under Para 2 of the said notification. The relevant part of the notification is as under:

“2. Prohibited Activities:

The following activities are declared as prohibited within the Coastal Regulations Zone, namely:

(i) Setting up of new Industries and expansion of existing industries, except those directly related to water front or directly needing fore-shore facilities.

(ii) Manufacture or handling or storage or disposal of hazardous substances as specified in the Notifications of the Government of India in the Ministry of Environment Y Forests No.s. 0.59.1 (E) dated 28th July, 1989, S.O.

966(E) dated 27th November, 1989 and GSR 103/(E) dated 5th December, 1989:

(iii) Setting up and expansion or fish processing units including warehousing (excluding hatchery and natural fish drying in permitted areas):

(v) Discharge of untreated wastes and effluent from industries, cities settlements. Schemes shall be implemented by the concerned authorities phasing out the existing practices, if and within a reasonable time period not exceeding three years from the date of this notification.

(viii) land reclamation, punding or disturbing natural course or sea water with similar obstructions, except those required for control of coastal erosion and maintenance clearing of waterways, channels an for prevention of sandbars and all except for tidal regulators. Storm water drains and structures for prevention of salinity ingrease and for sweet water recharge.

(x) harvesting or drawal of ground water and construction of mechanisms therefore with 200 m of HTL; in the 200 m to 500 m Zone it shall be permitted only when do manually through ordinary wells for draining, horticulture, agriculture and fishering.” According to Mr. Mehta the shrimp culture industry is neither “directly related to water iron” nor “directly needing fore-shore facility” and as such is a prohibited activity under Para 2(1) of the CRZ Notification. Mr. Kapil Sibal on the other hand has argued that a shrimp farm is an industry which is directly related to water front and cannot exist without fore-shore facilities. Relying upon Oxford English Dictionary Mr. Sibal contended that “water front” means land abetting on the sea, that part of a town which fronts on a body of water. According to him “Foreshore” in terms of the said dictionary means the part of the shore that lies between the High Tide and the Low Tide. According to Webster Comprehensive Dictionary. International Edition the expression `foreshore’ means “that part of a shore uncovered at low tide”.

It is, thus, clear that the part of the shore which remains covered with water at the High Tide and gets uncovered and become visible at the Low Tide is called “foreshore”. It is not possible to set no a shrimp culture farm in the said area because it would completely sub-merge in water at the High Tide. It is, therefore, obvious that foreshore facilities are neither directly nor indirectly needed in the setting up of a shrimp farm. So far as “water front” is concerned it is no doubt correct that shrimp farm may have some relation to the water front in the sense that the farm is dependent on brackish water which can be drawn from the sea. But on a close scrutiny, we are of the view that shrimp culture farming has no relation or connection with the `water front’ though it has relation with brakish water which is available from various water-bodies including sea. What is required is the “brakish water” and not the `water front’. The material on record shows that the shrimp ponds constructed by the farms draw water from the sea by pipes, etc. It is not the `water front’ which is needed by the industry, what is required is the brakishwater which can be drawn from any source including sea and carried to any distance by pipes etc. The purpose of CRZ notification is to protect the ecological fragile coastal areas and to safe guard the aesthetic qualities and uses of the sea coast. The setting up of modern shrimp aquaculture farms right on the sea coast and construction of ponds an other infrastructure thereon is per se hazardous and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the sea coast. We have, therefore, no hesitation in holding that the shrimp culture industry is neither “directly related to water front” nor “directly needing foreshore facilities”. The setting up of shrimp culture farms within the prohibited areas under the CRZ notification cannot be permitted.

Para 2(viii) of the CRZ Notification quoted above, prohibits the bunding or disturbing the natural course of sea water with similar obstructions. A band is an embankment or dyke. Alagarswami report in para 4.3.2 (quoted above) has specifically mentioned that huge cyclone protection dykes and peripheral dykes are constructed by the shrimp farmers.

The report further states that due to physical obstruction caused by the dykes the natural drain is blocked and Flood Water accumulated in the hinterland villages. The report notices that the shrimp ponds are constructed right on the bank of the creeks without leaving any area to draining of flood waters. A shrimp farm on the coastal area; by itself operates as a dyke or a band as it leaves no area for draining of the flood waters. The construction of the shrimp farms, therefore, violate clause (viii) of para 2 of the CRZ Notification, in view of the findings by the Alagarswami report it may be useful to hold an inquiry/investigation to find out the extent of loss occurred, if any to the villages during the recent cyclone in the State of Andhra Pradesh because of the dykes constructed by the shrimp farmers.

Annexure-1 to the CRZ Notification contains regulations regarding Coastal Area Classification and Development. The coastal stretches within 500 m of HTL of the landward side are classified into four categories, namely, CRZ-I, CRZ-II, CRZ-III and CRZ-IV. Para 6(2) of the CRZ Notification lays down the norms for the development ht or construction activities in different categories of CRZ areas. In CRZ-III Zone agriculture, horticulture, gardens, pastures, parks, playfields, forestry, and salt manufacture from sea level may be permitted upto 200 m from the high vide line. The aquaculture or shrimp farming has not been included as a permissible use and as such is prohibited even in this zone.

A relevant point arises at this stage. Salt manufacturing process like the shrimp culture industry depends on sea water. Salt manufacturers can also raise the argument that since they are wholly dependent on sea-water theirs is an industry “directly related to water front” or “directly needing fore-shore facilities”. The argument stands negatived by inclusion of the salt manufacturing industry in CRZ-III Zone under para b(2) or the CRZ notification otherwise it was not necessary in include the industry therein because it could be set-up any were in the coastal regulation zone in terms of para 2(1) of the CRZ Notification. It is thus obvious that an industry dependent on sea water cannot by itself is an industry “directly related to water front” or “directly needing fore-shore facilities”. The shrimp culture industry, therefore, cannot be permitted to be set up any where in the coastal regulation Zone under the CRZ notification.

We may examine the issue from another angle. Sea coast and beaches are a gift of the nature to the mankind. The aesthetic qualities and recreational utility of the said area has to be maintained. Any activity which has the affect or degrading the environment cannot be permitted. Apart from that the right of the fisherman and farmers living in the coastal areas to eke their living by way of fishing and farming cannot be denied to them. Alagarswami report states that “the shrimp farms do not provide excess to the beach for traditional fishermen who have to reach the sea from their villages. As farms are located and entry is restricted the fishermen have to take a longer route to the sea for their operation. This is being objected by traditional fishermen”.

The Alagarswami report further highlights drinking water problem, salinisation and destruction of mangrove by the shrimp culture industry. The relevant paragraphs have already been quoted above. The increase of stocking densities, heavy inputs of high energy feeds, use or drugs and chemicals result in the discharge or highly pulluted effluent into the sea, creeks etc. and on the sea coast by the shrimp farms. It is, therefore, not possible to agree with Mr. Sibal that commercial shrimp farming has no adverse affect on environment and coastal ecology.

We may at this stage refer to the two investigation reports dated April 23, 1995 and July 10, 1995 by NEERI regarding the Ecological Fragile coastal areas of India.

The report dated April 23, 1995 states that a 13 member team of scientists, lead by Dr. A.S. Ball and Dr. S.K. Kaul inspected the shrimp farms situated on the ecological fragile coastal areas in the States of Andhra Pradesh and Tamil Nadu between April 10 and April 19, 1995. It is further stated that the coastal areas in the Union Territory of Pondicherry were also inspected by the team. Regarding the CRZ Notification, the report states as under:- The MEF’s notification dated February 19, 1995 stipulates that the aquaculture farms on the coastal areas should not be constructed within 500 m from the high tide line (HTL) of the seas.

The hatcheries however, may be constructed between 250 and 500 m from HTL of the sea.

The inspection team observed during field investigations that the MEF’s norms for location of aquaculture and hatcheries have been violated in the States of Andhra Pradesh, Tamil Nadu, and the union territory of Pondicherry…….. There is an urgent need to ensure scrupulous implementation of the provisions made in the MEF’s notification dated February 19, 1991 in the States and Union Territory inspected by the team. In addition, the damage caused to the land and water ecosystems by coastal aquaculture activity, as detailed in the report, must be restored to its original ecological State. The cost for eco-restoration of the coastal fragile area must be borne by individual entrepreneurs of the coastal aquaculture farms in keeping with the Polluter-Pays principle…….. Further, no activity of commercial coastal aquaculture should be undertaken even beyond 500 m HTL unless a comprehensive and scientific Environmental Impact Assessment (EIA) Study has been conducted by the entrepreneur, and the Environmental Management Plan approved by the respective State Department of Environment, Pollution Control Board, Shore Development Authority, and also by the Ministry of Environment and Forests. Appropriate terms of reference for EIA have been incorporated in the report.” Regarding the socio-economic assessment of acquaculture in the area, the report gives the in following finding:- “A socio-economic assessment of aquaculture in the ecologically fragile coastal areas in the States of AP and TN has been conducted by the NEERI team. This assessment, detailed in the report, indicates that the cost of ecological and social damage far exceeds the benefits that accrue out of coastal aquaculture activities.” The adverse impacts of acquaculture farming on the environment and the ecologically fragile in the States of Andhra Pradesh, Tamil Nadu and union territory of Pondicherry have been stated in the report as under:- “3.0 Observations on the Impacts of Aquaculture Farming on Ecologically Fragile Areas in States of AP, TN, and Union Territory of Pondicherry Coastal aquaculture units are situated within 500 m of high Tide Line of the sea. This is not in consonance with the MEF’s notification dated February 19, 1991.

It is a common practice to convert agricultural land, and land under salt production, into coastal aquaculture units which infringes the fundamental rights to life and livelihood.

Conversion of agricultural farms and salt making lands into commercial aquaculture farms is rampant in the fragile coastal areas of Andhra Pradesh, Tamil Nadu and Union Territory of Pondicherry.

Brackish aquaculture units have been installed in deltaic regions which is a ecologically unsound practice.

Natural saline canals which travel from sea to the mainland are being used for brackish aquaculture farming. The flow of the natural saline canals is being obstructed due to prawn farming activity which has resulted in the spread of brackish water over agricultural farms resulting in loss or agricultural lands, and potable water.

Villages situated along the sea coast, deltaic regions, and natural saline canals are under threat due to diversion of land to aquaculture farms.

Traditional fishermen have lost their landing grounds for fish catch.

Coastal aquaculture has resulted in loss of mangrove eco-systems which provide protection against cyclones and other natural hazards, and which provide natural habitats for spawning or marine Indiscriminate destruction of mangrove areas in and around the creeks, estuaries, and sea has resulted in loss of natural breeding grounds for shrimps.

Natural Casuarine plantations have also been destroyed. This may result in increasing damage from cyclons, and intrusion of saline water into mainland.

Coastal aquaculture farms have not been scientifically designed and located, resulting in excessive ecological damages.

No proper peripheral drainage has been provided around the aquaculture farms.

The saline water intake and effluent discharge points from aquaculture farms are located in close vicinity, resulting in contamination of feed water to the aquaculture units threatening their productivity.

Three types of saline water supply systems are in vogue for the aquaculture farming, viz.

– direct pumping from the sea, creek, and estuary – direct pumping from deep sea with jetties – using high tides of sea for carrying saline water through excavated canals.

These activities for feed water supply to the aquaculture ponds have resulted in:

– loss of fish catch (except in the case of feed water supply through sea water canal system) – loss due to damage of fishing nets.

– degradation of fragile coastal land.

Large commercial aquaculture farms have installed fencing in and around the farms resulting in blockage of free access for the fisherman to the sea shore.

The wastewater discharge from the aquaculture farms released into the creeks is not properly flushed out of the creek during low tides thereby leads in the accumulation of pollutants in the creek, affecting the quality of intake water to aquaculture farm with concommittant loss in productivity, and damage to creek ecosystem.

Disappearance of the native fish species due to increase in salinity of the creek water has been observed by the team, and reported by the fishermen. Increase in salinity has also reduced the ingress of shrimp seedlings in the creek.

Indiscriminate catch of natural shrimp seedlings from the coastal waters, creeks, and estuaries has resulted in reduction of their availability, which in turn has forced the commercial aquaculture farmers to import the seeds.

Unscientific management practices adopted by the commercial aquaculture farmers, and improper design of aquaculture farms including inadequate drainage systems have resulted in skin, eye, and water borne diseases in the contiguous population.

Commercial aquaculture farm owners have not contributed to any social infrastructure facilities for the villagers.

Employment avenues of the contiguous population have considerably reduced due to the commercial aquaculture farming. The unemployed villagers are seeking employment in nearby towns and cities.

Owners of the commercial aquaculture farms are using various means to encroach upon the Government lands and also forcing the agricultural land owners/salt making villagers to sell their lands. In addition, the fishermen are also being forced to migrate to other coastal areas.” Regarding the socio-economic status of the ecologically fragile coastal areas in the States of Andhra Pradesh and Tamil Nadu, the report states as under:- “During the inspection of the aquaculture units located on the Ecologically Fragile Coastal Areas of AP and TN, the inspection team collected data and information, and discussed the issues related to socio-economic status of the affected people with the farmers, fishermen, GNASH, and Government officials.

The basic socio-economic issues are presented in Table 4.1 which also lists the parametric values in the assessment of the damage caused by the aquaculture units located in the Ecologically Fragile Coastal Areas. Tables 4.2 and 4.3 present the socio-economic assessment or aquaculture in the Ecologically Fragile Coastal Area of the States of AP and TN.

Tables 4.2 and 4.3 bring forth that the damage caused to ecology and economics by the aquaculture farming is higher than the earnings from the sale of coastal aquaculture produce.” The NEERI has, thus, given a positive finding that the damage caused to ecology and economics by the acquaculture farming is higher than the earnings from the sale of coastal acquaculture produce. The finding is based on the assessment keeping in view fourteen parameters listed in Tables 4.2 &

4.3 regarding the States of Andhra Pradesh and Tamil Nadu respectively. The parameters taken into consideration are equivalent wages for the farmers to be earned, equivalent amount of agricultural produce loss due to cutting to Casuarina in terms of fuel, loss in terms of grazing grounds, loss involving loss caused by cyclones due to cutting of in a forests, loss due to desertification of land, loss in terms of potable water, total loss destruction, loss in rising income, loss due to damage of fishing nets and man-days loss due to approachability to sea-coast. These losses are computed in money are are then compared with the total earnings from the sale of coastal acquaculture produce. In the basis of the assessment of socio-economic status of acquaculture in a systematic manner the NEERI has reached the conclusion that the damage caused to ecology and economics by the acquaculture farming is higher than the earnings from the sale of coastal aquaculture produce.

Paras 6.1, 6.2 and 6.3 of the report clearly show the environmental degradation caused by the shrimp culture farming by its adverse impact on surface water, contamination of soil and ground water and destruction of mangrove vegetation. The said paragraphs are reproduced hereunder:

“6.1 Impact on Surface Waters Mangrove vegetation is important in protecting marine and terrestrial ecosystem. This vegetation is also important as it removes the pollutants like carbon nitrogen, phosphate and other nutrients, as also certain toxic compounds. The importance of mangrove plants especially Vettivera zaizonoids is known is reduction the impact of pollution due to discharge of aquaculture pond effluents, and the Cavery Delta Farmers are now propogating the cultivation or this species in estuaries. Mangrove vegetation also acts as a barrier of floods, an provides spawning grounds and nesting places for fishes; it also supports avian fauna (birds) thus maintaining the nature ecosystem.

The observations on the water quality in the aquaculture ponds show that the pond water harbors a dense algal bloom compared to the water in estuaries, creeks or sea indicating eutrophic nature of pond effluent. When water in large volumes, from the ponds is discharged during flusing of ponds, in a creek or estuary, the pollutants remain stagnated in the estuary or near-sea coast due to the typical tidal activity in creeks. As a result, the raw water source to the ponds gets contaminated in course of time. The wastewater discharge from the ponds warrant proper treatment before discharge. Uncontrolled discharge of wastewater triggers a series of deleterious impacts, e.g.

– With the increase in eutrophication levels, there is a shifiting in dominance of phytoplankton Flora in pond effluent from diatoms to blue-green algae. Decomposition of dead blue- green algae may lead to the generation of toxic substances, eg.

ammonia, hydrogen sulphide etc.

Further, some of the blue-greens also excrete biotoxins in large quantities which are toxic to aquatic animals, prawns in ponds or fishes in estuaries or coastal waters. Large amount of blue-green algae was recorded by the inspection team in Sirkali area (eg. S&S Industries & Enterprises Ltd; High Tide Sea farms) and Killai area (Aqua Gold Shrimp Farm;

MRVAqua Farm; Mohi Aqua Farm). The presence of Oscillatoria, Microcystis and some other filamentous blue-green algae is undesirable in the pond effluent as they chock the gills of fishes.

– The suspended solids released from the ponds are laden with unconsumed food and other organic contaminants. Accumulation of these organics in the intake water creates problems in the intake water quality when the intake and discharge points are in close proximity.

6.2 Contamination of soil and ground water The shrimp farms are constructed well above the ground levels. Seepage of pond effluent to the surrounding fields was noted by the inspection team in a number on farms. Seepage of pond effluent the soil quality in the adjoining aquacultural fields. It has also contaminated potable water in surrounding villages.

Deterioration of ground water quality in villages that over one km away from the pond sites was not noticed. This observation is based on analysis of bore well water at three sites by the inspection team.

This observation justified the locational constraints on aquaculture farms in coastal areas.

6.3 Destruction of Mangrove vegetation The inspection team noticed destruction of mangrove vegetation at most of the prawn farming sites for the development of shrimp farms.

Significant destruction of mangrove forest was observed hear the Aqua Gold shrimp farm at village Vellar in Killai taluk of South Arcot district similarly on Pichavarum estuary in village in Killai taluk of South Arcot district of TN, the shrimp farms are constructed by clearing mangrove vegetation. Mangrove vegetation in Kuchipalam village is also facing threat due to the expansion of prawn farming activity.

The final conclusions and recommendations are in para 5 of the NERI report which is as under:- “8.0 Conclusions and Recommendations on the attenuation of the Impact of Aquaculture Farming on Ecologically Fragile Ares in States of AP, TN, and Union Territory of Pondicherry.

Socio-economic assessment of aquaculture in the ecologically fragile areas in the States or AP and TN reveals that the cost of ecological and social damage far exceed the benefits that accrue out of the coastal aquaculture activities.

The MEF’s norms for location of aquaculture and hatcheries have been violated in the States of AP, IN, and Union Territory or Pondicherry.

The current practice of installation of coastal aquaculture farms within 500 m HTL violates the fundamental rights and livelihood or people in the States AP and TN, and the Union Territory of Pondicherry.

The current practice of installation of coastal aquaculture farms within 500m HTL violate the fundamental rights and livelihood of people in the States AP and TN, and the Union Territory of Pondicherry.

The State of AP has adopted twenty point guidelines as ad hoc measures for management of aquaculture in the district of Nellore. These guidelines have not been made mandatory in the State of AP as a whole. Also, these guidelines do not address all socio-economic, and ecological aspects of coastal habitats.

The State Government of TN has enacted a Bill of provide for the regulation of coastal aquaculture on April 10, 1995. This Bill is not in consonance with the MEF’s notification dated 19, 1991 as it allows the construction of aquaculture units within 500m of HTL of the sea.

The cost of eco-restoration of the coastal fragile area must be borne by the individual entrepreneur of the commercial aquaculture farms in keeping with the polluter-pays principle.

No commercial coastal aquaculture activity should be undertaken even beyond 500m HTL unless a comprehensive and scientific environmental impact asessment (EIA) study has been conducted by the entrepreneur, and the environment management plan (EMP) approved by the respective State Department of Environment, Pollution Control Board, shore Development Authority, and also by the Ministry of Environment and Forests.

Agricultural lands are being converted into commercial aquaculture farms, which causes unemployment to the landless labourers and also in loss of cultivable land.

Commercial aquaculture farms are being installed near the cultivated lands and the salt water from the farms damages the productivity of the adjoining lands.

Groundwater also gets contaminated due to seepage of impounded water from the aquaculture ponds.

Desertification of cultivable land is on the increase due to salinity intrusion.

Due to commercial aquaculture farms, there is a loss of – mangrove ecosystems – causarina plantations – grazing grounds for cattle – potable water to contiguous population – fish catch – fishing nets – agricultural produce – manpower loss due to non- approachability of fishermen to sea shore directly.

There is a perceptible increase in the diseases of skin and eye, and water borne diseases in the contaguous population.

The designs of the acquaculture farms are inadequate.

No provision has been made for wastewater treatment facility enabling recycling and re-use of wastewater.

Prohibition on conversion of agricultural lands and salt farms into commercial aquaculture farms must be enforced with immediate effect.

No groundwater withdrawal must be allowed for aquaculture purposes.

Free access through aquaculture unit to the sea coast must be provided to the traditional fishermen.

No aquaculture farm based on brackish water should be installed on inland brackish water bodies.

Wild seed collection from creek and sea must be prohibited.

Seed must be procured from hatcheries. If seed collection is noticed it must immediately be seized and dumped back into the creek.

A eco-restoration fund must be created by collecting the stipulated fees from the owners of acquaculture farms. In addition, one per cent of total export earnings per annum must also be collected from commercial aquaculture farm owners and used for rejuvenation of coastal eco- system with special reference to plantation of mangroves and common eco-sensitive zones. The wastewater treatment system with reuse and recycle must be installed by all units. The smaller units can form a co-operative and treat their water through common effluent treatment plant. The aquaculture units must be closed down if the wastewater treatment system is not functioning to its design efficiency.

The second NEERI report dated July 10, 1995 states that a 19 member team of scientists lead by Dr. A.S. Ball and Dr.

S.N. Kaul inspected the shrimp farms situated on the ecologically fragile coastal areas in the States of West Bengal, Orrisa, Kerala, Karnataka, Goa, Maharashtra and Gujarat during May 20 and June 10, 1995. The summary of salient comments in the report regarding acqua-farming in the State of West Bengal is as under:- – organic pollution in creeks and estuaries with respect to BOD deterioration – microbiological of water quality – accumulation of organic carbon and heavy metals in the sediments of shrimp farms – Shannon Weaver index values less than 3 indicate organic contamination – borewell water characteristics near M/s Index Port Ltd., Sarberia, Basanti, North 24-Paraganas, show intrusion of salinity in drinking water source – conversion of land, and traditional fish farm at M/s Index Port Ltd., North 24-Paraganas – conversion of land, traditional fish farm, and mangrove plantation at M/s Sundarban Aquatics, South 24-Paraganas – violation of CRZ regulations regarding high tide line (HIL) has taken place at M/s Sundarban Aquactics, South 24-Paraganas. In addition, violations of CRZ for setting up the aquafarm on creeks have taken place at the following places:

– M/s Index Port Ltd., North 24- Paraganas – M/s Sundarban Aquatics, South 24-Paraganas – All shrimp farms developed by BWFD at Ramnagar, Midnapore.” The comments regarding the acqua-farming in the State of Orissa by the NEERI team are as under:- “* Organic pollution in crecks and estuaries with respect to BOD * deterioration of microbiological water quality * accumulation of organic carbon and heavy metals in the sediments of shrimp farms * Shannon Weaver index values less than 3 indicate organic contamination * characteristics of borewell water samples near M/s Sundeep Aquatics, District Bhadrak and M/s Suryo Udyog Pvt. Ltd., District Balasore, show intrusion of salinity into drinking water * conversion of cultivable land for the establishment of aquafarms/hatcheries in all districts * violation of CRZ regulations by all aquafarms on creeks in the districts of Balasore and Bhadrak.

Hatcheries have been constructed/under construction within 200m of high tide line (HIL) in contravance of CRZ regulations.” The status of acqua-farming in the State of Kerala as indicated in the NEERI report is as under:- “The comments on aquafarming in the State of Kerala are presented in the footnotes of Tables 2.2.1.7.

Summary of the salient comments is given hereunder:

* organic pollution in river, creeks and estuaries * deterioration of microbiological water quality * accumulation of organic carbon and heavy metals in the sediments of shrimp farms * Shanon Weaver index valued less than 3 indicate organic contamination * well water characteristics in the vicinity of M/s Agalapuzha aquafarm, Kozhikode show the intrusion of salinity in drinking water source * conversion of land, and traditional fish farm by M/s Vasu Aquafarms at Kozhikode * conversion of land, traditional fish farm, and mangrove plantation by M/s West Coast Aquafarms Irinavu, Kannur * violation of CRZ regulations regarding the location of aquafarms on creeks has taken place at the following sites.

– M/s Consolidated Aquafarm, Poyya, Trissur – M/s Jaladhi Aquafarm, Cherchi – M/s Keetodiyal Aquafarm, Arookutty Alleppey – M/s Mejovi Fisheries, Irinavu, Kannur”.

The report further indicates the status of acqua- culture in the State of Karnataka as under:- “Organic pollution in river, creeks, and estuaries Shanon Weaver index values less than 3 indicate organic contamination well water charactristics in vicinity of M/s Raja Ram Bhat Aquafarm, Hanmav, Kumta show the intrusion of salinity in drinking water source conversion of agricultural land into shrimp farms was observed at – M/s Popular Aquafarm, Tallur, Kundapur – M/s Raja Ram Bhat Aquafarm, Hanmav, Kumta – M/s Shri Arya Durga Aquafarm, Karwar destruction of mangrove vegetation by M/s Popular Aquafarm, Tallur, Kundapur was observed by the inspection team violation of CRZ regulations by aquafarms situated on the creek of Razadi river at Kundapur, Hanmav creek at Kumta, and Hgnashree creeks were noted by the inspection team.” The comments of the NEERI report regarding acqua farms in the State of Goa are as under:- “* organic pollution in river, estuary and discharges from ponds * Shanon Weaver index values less than 3 indicate organic contamination * well water characteristics in vicinity of M/s Govt. Prawn farm, Choraho indicate salinity intrusion * conversion of agricultural land into shrimp farm was observed by the inspection team at M/s Sky Pak Aquafarm Ltd., Paliyam, Goa * violation of CRZ regulations by all the aquafarms on the creeks, viz. Masem creek at Kankun, and Chahora at Pernem were observed by the inspection team.”.

Summary of the salient comments on acqua-culture in the State of Maharashtra is as under :- “* organic pollution in river estuary and discharges from ponds * microbiological deterioration of water quality * accumulation of organic carbon and heavy metals in the sediments of shrimp farms * Shanon Weaver index values less than 3 indicate organic contamination * conversion of agricultural land into shrimp farms * violation of CRZ regulations regarding location of shrimp farm on creeks, viz. Dharamtar, Satpati, and Dahanu.” The comments regarding to State of Gujarat are as under:- “organic pollution in river, estuary and discharges from ponds destruction of mangrove and shrubs in the marine zone by M/s GFCCA, Onjal and M/s Sea Crest Pvt. Ltd., Mendhar violation of CRZ regulations for setting up the shrimp farms on the creeks, viz. Kanai, Ambika, and Purna.” Para 3 of the NEERI report dated July 10, 1995 gives in detail the impact of acquaculture farming on ecologically fragile coastal areas of India:- “3.0 Observations on the Impacts of Aquaculture Farming on Ecologically Fragile Coastal Areas of India

3.1 East Coast * The shrimp farms at Ramnagar, Midnapur district are located right on the creek, and therefore, are not in consonance with the CRZ regulations * No wastewater/sediment treatment facilities exist at any of the aquaculture farms * No direct withdrawal of water from creek/estuary * No conversion of land has taken place except in cases of M/s Index Port Ltd., North 24-Paraganas and M/s Sundarban Aquatic Farms Ltd., South 24-Paraganas * wild shrimp seedling collection by villagers including children is a common practice * M/s Index Port Ltd., North 24 Paraganas has created the following problems;

– design of aquaculture farm is not proper, and no wastwater/sediment treatment facility exists in this shrimp farm – intensive mode of operation creates wastewater problems.

Presently, there is no treatment facility existing for reuse and recycle of treated wastwater – deposition of clay in the intake water reservoir, and no proper mechanism exists for its disposal – seepage from the bunds create additional problems around the farm – inspection team observed that groundwater in the vicinity of this aquaculture farm has become saline – conversion of agricultural land, and traditional fishing farm – barbed wire fencing along the periphery of the farm has resulted in restriction to free access for the farmers, fishermen and cattle to the creek – M/s Sundarban Aquatic Farms Ltd., South 24-Paraganas has created the following problems ;

– conversion of agricultural land, traditional fish farming, and mangrove plantation – the aquafarm is located below ground level. Therefore, it is difficult to assess the seepages from this farm unless peizometers are installed around the aquafarm – a well designed sedimentation tank is being used as a wastewater treatment system. However, it is not adequate. Necessary arrangement have to be made for recycle and reuse of wastewater – no provision exists for treatment of sediments – the location of the aqua-farm is not as per MEF notification dated February 19, 1991, keeping in view high tike line, and minimum distance from the creek The important areas of environmental concern regarding shrimp farming in the State of orissa are World Bank Aided Projects – Narendrapur, Bhadrak District World Bank aided project comes within the national park area.

Therefore, it is desirable that this project proposal must be dropped. It was also informed to the inspection team that two private shrimp farms are in operation at present near the proposed World Bank Aided Project which must be closed immediately, in view of proximaty of the national park – Beidipur, Bhadrak District There are plans to construct large shrimp farms. It is necessary to mention that this area is prorusely covered with wild sea weeds, which has direct relationship with the ecology of the marine biota.

Keeping this aspect in view, a detailed EIA is required before finalizing the development of shrimp farms in the area which must include private farms in the region In addition, there is a salt dyke which prevents the flow of sea water into the agricultural lands.

It is worth mentioning that more than 50 shrimp farms, 1 ha, each have come up in this area. This leads to conversion of fertile agricultural lands into brackishwater based shrimp farming resulting salinity, intrusion and desertification of land – Jagatjore – Banapada, Kendrapara District Construction work of shrimp farm is in progress. Mechanised systems for excavation, and construction are being used. In addition, inhabitants are prosecuted. There is a signpost “Trespassers will be prosecuted”. It was informed to the inspection team by the nearby villagers that this place was used for agriculture. Farmers, fishermen, and cattle had free access to the nearby creeks. Now it has been limited to a large extent.

In addition, the inspection team was informed about indiscriminate cutting of mangrove bushes around the area. This project must be reviewed critically keeping Bhitar Kanika Wild Life Sanctuary in view Local entrepreneurs have started small shrimp farms of about 1 ha each. This will cause waterlogging problems in the area. Finally, the high tide line (HTL) just touches the saline dyke. Therefore, world Bank project proposal and other shrimp farms fall within 500 m of HTL, and do not conform to the MEF’s notification dated February 19, 1991 * Chilka Lagoon The silt carried by two main rivers, viz. Daya and Bhargabi gets deposited in the lagoon. There is little exchange of water from the sea because the mouth of the lagoon (35 km long) has been blocked by three factors, viz.

– silt – improper mixing, and – large clusters of shrimp farms hinder the pasage of water into/out of the lagoon The bird sanctuary at Nalaban has also been affected by siltation and shrimp farming activities. 35 km of the canal mouth of the lagoon needs immediate attention, because the exchange of sea water into and from the lagoon is vital from ecological considerations. In additions deposited silt has to be removed, Shrimp farms must be closed down immediately to restore the Chilka lagoon, to its original ecological condition by application of scientific management practices * Subarnarekha Mouth A large number of shrimp farms have come up on both sides of the lower reaches of the Subarnarekha river to utilise the tidal brackish water as observed by the inspection team.

It was reported to the inspection team by local people that this has resulted in water logging in upper reaches of Subarnarekha river * The inspection team observed that the shrimp farming is at least three times more than what has been presented by the State Govt. of Orissa * All the shrimp farms do not observe the MEF notification dated February 19, 1991. The creek/estuarine water based shrimp farms are also not observing the CRZ guidelines of MEF Agricultural land is being converted to shrimp farming because of Land Reform Act of Govt. of Orrisa * Artificial creeks are being constructed to allow high tides of creek/estuarine water into the large reservoir. In addition, this factor must result in flooding of low lying areas * Reservoirs act as a setting cum concentration basin. Therefore, it is necessary sometimes for the shrimp farmers to dilute this water by withdrawing groundwater, resulting in depletion of groundwater resources in the nearby villages. In addition, groundwater has become saline. This is confirmed by the situation in Adhuan village in Bhadrak district * The shrimp farming has resulted in several social problems viz.

– denial of free access to fishermen – denial of job opportunities – conversion of agricultural land to shrimp farming – social displacement – salination of groundwater – reduction in grazing ground of cattle, and free access to creek/estuarine water * Wild shrimp seedling collection is still in practice.

This will have detrimental effect on the ecology of the sea, creek, and estuarine waterbodies * Direct pumping from the creel/estuarine water system is being practiced. This results in reduction of fish catch and most of stopped immediately * No shrimp farm had any type of wastewater and sediment treatment systems including hatcheries * All hatcheries are located within 200 m of the HTL in contravance of the MEF’s notification dated February 19, 1991. It is necessary to stop the commissioning of all new hatcheries which are not being constructed as per CRZ regulations * Intake points and wastewater discharge channels of the prawn farms are nearby. This is not a scientific water management of shrimp farms * It has been observed by the inspection team tat some shrimp farms have barbed wires along the periphery of project site, e.g.

– M/s Deep Sun Culture Pvt. Ltd.

– M/s Surya Udyog Pvt. Ltd.

– M/s Manas Prawn Farm Therefore, there is no tree access to creek and estuarine water for the fishermen and cattle.

3.2 West Coast * The shrimp farming activity in the west coast is mostly confined to the traditional extensive type of farming. Limited number of commercial shrimp farms having areas more than 5 ha, working on the semi-intensive type have been installed in the coastal areas since last 3 years.

* Though in limited numbers, prawn farms working on the semi- intensive type specifically in the States of Karnataka, Maharashtra, and Gujarat are situated within 500 m of high tide line of the sea, which is not in consonance with MEF’s notification dated February 19,1991 * Incidence of conversion of agricultural land into coastal aquaculture units, which infringes the fundamental right to lite and livelihood, could be noticed in States of Karnataka (Kumta taluk), Maharashtra (Ratnagiri district, and Palghar taluk) and in Gujarat (Valsad district) * In States situated on the west coast of India brackish water aquaculture units have been mainly installed along the estuaries and river banks, where impounded backwater is being used for shrimp farming. Such practices of extensive type of farming may not have significant adverse impact on environment due to the fact that limited quantities of brackish water are required for recharging these ponds, and the wasterwater generation is negligible. However, this practice of utilisation of backwaters will prove to be unsound if carried out for large scale farms using semi-intensive type of farming * Villages situated along the sea coast, and backwater zones, specifically at Gunda, Kumta and Karwar (Karnataka), Palghar and Dahanu (Maharashtra), and Valsad (Gujarat) are under threat due to conversion of land into aquaculture farms * In the State of Karnataka, the inspecting team observed that M/s Murudeshwar Food and Export Ltd.

Prawn aquafarm units are located within 100 m of HTL The intake and discharge points of M/s Samudra Aquafarms and M/s Skyline Biotechnologies Pvt. Ltd., Kagil, Kumta are very close to each other which may create problems or contamination in the ponds. The prawns grown in these farms were reported to be affected by vital infection. Disposal of sediments from the ponds was also observed to be carried out on the side of the river * It was also observed by the inspecting team in the State of Karnataka that aquafarm of M/s Rajaram Bhat Pvt. Ltd. at Monnavar in Kumta taluk has been installed on the periphery of the village.

The bunds constructed for making the ponds have obstructed the free flow of storm water, and domestic wastewater from the village to sea and this has created health hazards for the villagers. Intrusion of saline water in the soil was also observed, and reports on damage o coconut plantations in nearby areas were also received. Contamination of drinking water sources due to saline water intrusion was observed * In the State of Karnataka, M/s Agnasana Aquafarm Pvt. Ltd. has come up adjacent to a school in village Gunda, and the constructed bund of the pond touches the compound of the school. Seepage of saline water from the bund and subsequent damage to the foundation of the school building, and damage to coconut plants in nearby areas was observed. Such practices of allowing the ponds to come up near residential and public utility places must be stopped immediately * Coastal aquaculture has resulted in loss of mangroves ecosystems to a limited extent of the west coast. However, significant destruction or mangroves could be noticed in the coastal areas of the districts on Karwar a Kumta (Karnataka), Palghar & Shrivardhan (Maharashtra), and Valsad (Gujarat). Since the mangrove ecosystems provide natural habitat for spawning of marine biota, the practice of indiscriminate destruction of mangrove ecosystem due to installation or shrimp farms must be stopped * No proper peripheral drainage has been provided around the aquaculture ponds following semi- intensive mode of farming in the States of Kerala, Karnataka & Maharashtra, and the wastewater from the ponds was observed to be discharged into the receiving bodies without treatment * The brackish water intake and effluent discharge ponds for the ponds are located in close vicinity resulting in contamination of feed water of the aquaculture units. The situation is predominant at Kumta (Karnataka), Palghar (Maharashtra), and Valsad (Gujarat) where a large number of medium and large aquafarms have been installed * Since large number of medium and big farms have been installed on the coastal areas at places mentioned above, the wastewater discharged into creeks and back water zones is not properly flushed out during low tide, thereby, affecting the intakes water quality of aquaculture farms.

* The situation in the State of Goa has not reached such an alarming situation as yet due to limited number of farms, and abundant quantities of backwater available in the riverine zones of Zuari and Mandavi rivers. However, future expansion of the shrimp farming practices warrant careful control, in view of tourism potential of the State * Shrimp farming activity in the State of Gujarat is presently confined to the coastal areas of Valsad, Bharuch, and Surat. Two large commercial shrimp farms are proposed to be installed in the Jamnagar district where salt farms are being operated currently.

Sanctions for such installations warrant careful consideration to avoid damages to the highly ecosensitive coral reef zones near this coast.

The conclusions and recommendations as given in para of the NEERI report are as under:- “7.0 Conclusions and Recommendations on the attenuation of adverse Impacts of Aquaculture Farming on Ecologically Fragile Coastal Areas

7.1 East Coast * The shrimp farming activity in east coast is mostly confined to the traditional and extensive mode.

However, a large number or commercial shrimp farms have started functioning on modified extensive, semi-intensive; and intensive modes since last three years * The large scale shrimp farms and hatcheries have violated CRZ notification of MEF dated February 19, 1991 in the States of West Bengal and Orissa * Incidence of conversion of agricultural land into coastal aquaculture units which infringe upon the fundamental rights to life and livelihood were particularly in the State or Orissa * It is desirable to establish aquaculture farms on modified extensive mode. Semi-intensive and intensive mode of aquaculture must not be adopted in the States or West Bengal and Orissa * Maintenance of quality of the feed, and stocking of healthy seed from the government approved hatcheries associated with appropriate water management practices warrants proper attention in the prawn farming activities of the coastal areas * The proposed guidelines for shrimp farming in the State of West Bengal do not address all socio- economic, and ecological status or coastal habitats.

* The State of Orissa has not formulated any guidelines related to aquaculture practices * The cost of eco-restoration of the coastal fragile area must be borne by the individual entrepreneurs of the commercial farms in keeping with the polluter pays principle with specific reference to.

– Sunderban Mangrove/Littoral Forest, West Bengal – Chilka Lagoon, Orissa – Bhitar Kanika Wild Life Sanctuary, Orissa – National Park, Orissa – Subarnarekha Mouth, Orissa No commercial coastal aquaculture activity should be undertaken even beyond 500 m HTL unless a comprehensive and scientific environmental impact assessment (EIA) study has been made by the entrepreneur, and the environment management plan (EMP) approved by the respective State Department of Environment, Pollution Control Board, and also by the MEF * Agricultural lands are being converted into commercial aquaculture, which causes unemployment to the landless labourers and also in loss of cultivable land * Groundwater also gets contaminated due to seepage of impounded water from aquaculture farms Due to commercial aquaculture farms, there is a loss of – mangrove ecosystem – grazing grounds for cattle – potable water to contiguous population – fish catch – agricultural produce – economic loss due to non- approachability of fishermen to creek, estuary and sea directly * the designs of the aquaculture farms are inadequate. No provision has been made for wastewater treatment facility enabling recycling and re-use of wastewater in shrimp farms and hatcheries to minimise water exchange. In addition, there is a necessity to treat deposited sediments from the shrimp farms. Sediments can be converted into manure for land application after proper treatment * Prohibition on conversion of agricultural land must be enforced with immediate effect * Wild seed collection from creek, estuary, and sea must be prohibited. Seed must be procurred from hatcheries * An eco-restoration fund must be created by collecting the stipulated fees from the owners of aquaculture farms. In addition, one percent of total export earnings per annum must also be collected from commercial aquaculture farm owners, and used for rejuvenation of coastal eco-system. The wastewater treatment system including sediment control with reuse and recycle must be installed by all unites. The smaller units can form a co-operative, and treat water through common effluent treatment plant. The aquaculture units must be closed down if the wastewater treatment system including sediment control is not functioning to its design efficiency * A strict vigilance by the State Departments of Fisheries and Pollution Control Board is required to keep a check on pollution abatement measures, it may be mentioned that even a small, one shrimp farm can be to i.e. modified-extensive; semi- intensive, and intensive.

Therefore, strong control measures for production and pollution (wastewater and sediments) are essential * Water (from sources such as creek, estuary or sea) cess must be charged from the shrimp farm owners * Cultivable lands must not be converted for aquaculture. There is a perceptible difference between cultivable and not cultivated land.

Thus, even if aquaculturist buys agricultural land and keep them fallow for say 2 or 3 years that does not mean that the land has become non-cultivable. Currently almost all the farms that exist are cultivable lands except those in Midnapur district (7 aquafarms in wastelands). Even these farmers who do not sell their land to prawn farm owners, are affected due to lack of drainage from paddy fields which in turn cause flooding of the crop during rainy season * The location of shrimp farms in Midnapur district on wasteland developed by the Department of Fisheries, Govt. of West Bengal fulfills all scientific conditions except ;

– CRZ guidelines for creeks – Wastewater & sediment management practices, and – Mode of operation which is mostly semi-intensive and intensive * There are two commercial aquaculture units in the State of West Bengal, viz, M/s Sunderban Aquatic Farm Ltd., and M/s index Port Ltd., which are violating CRZ regulations of MEF dated February 19, 1991 as discussed hereunder.

– M/s Sundarban Aquatic Farms Ltd.: Conversion of agricultural land & traditional fish farm, and destruction of mangrove plantation have taken place. In addition, this farm falls within 500 m from HTL., Further, CRZ regulations for location of aquaculture farm near the creek have also been violated – M/s Index Port Ltd.;

Conversion of agricultural land & traditional fish farm have taken place. Groundwater has become saline around the farm. Shrimp farms are not well designed resulting in seepage. Barbed wire fencing has restricted free access to farmers, fishermen and cattle to the creek. In addition. CRZ regulations for location of aquaculture farm near the creek have also been violated No treatment facilities have been provided by both the farms It is necessary to review the World Bank aided projects and commercial shrimp farms in and around Chilka Lagoon, keeping in view the MEF norms dated February 19, 1991 in the State of Orissa, viz.

– Narendrapur project must be abandoned as it is within the National park. Also the existing commercial farms in operation must be closed down – Bideipur project requires EIA studies. Several farms have come up on the other side of the saline dyke which must also be included for evaluation in the EIA studies – Jagatjaore-Sanaspada project is within 500 m HTL. Farmers, Fishermen and cattle earlier had free access to the nearby creek, which has been limited to a great extent due to the commercial shrimp farming activity. Also indiscriminate cutting of mangrove bushes has been reported. This project must, therefore, be reviewed critically keeping Bhitar Kanika Wild Life Sanctuary in view * The commercial shrimp farms in Chilka Lagoon must be abandoned keeping in view the ecological condition of the lagoon and also the location of National Bird Sanctuary.

7.2 West Coast * MEF’s norms for location of aquaculture farms and hatcheries have been violated at many places in the States situated on west coast of India The current practice of installation of coastal aquaculture farms within 500 m HTL violates the fundamental right and livelihood of people in the coastal States * The States of Kerala, Karnataka, Maharashtra and Gujarat have neither formulated nor adopted any guidelines in consonance with CRZ-notification, Ministry of Environment & Forests (MEF), Govt.

of India for scientific control and management of the shrimp farms in the respective States. These States must formulate and adopt legislative Acts for proper management and regulation of existing shrimp farms in the respective States * The State Government of Goa has enacted a bill dated November 17, 1994 in order to regulate, promote and manage the shrimp farms in this State, in a scientific manner. However, this bill is in consonance with the MEF notification dated February 19, 1991 as it allows the construction of aquaculture units within 500 m of HTL of the sea. The is limited to the guidelines pertaining to the allotment of lands for the entrepreneurs * The cost of eco-restoration of the coastal fragile area must be borne by the individual entrepreneur of the commercial aquaculture farms in keeping with the polluter pays principle * No commercial coastal aquaculture activity should be undertaken even beyond 500 m HTL unless a comprehensive and scientific environmental impact assessment (EIA) study has conducted by the entrepreneur, and the environment management plan (EMP) approved by the respective State Department of Environments Pollution Control Board, Shore Development Authority, and also by the Ministry of Environment and Forests * Commercial aquaculture farms are planned to be installed near the cultivated lands in all the States of west coast. Salt water from the farms results in damage to the productivity of the adjoining lands * Groundwater also gets contaminated due to seepage of impunded water from the aquaculture ponds * Desertification of cultivable land can result in increased saline intrusion on west coast Due to commercial aquaculture farms, there is a loss of – mangrove ecosystems – casurina plantations – grazing grounds for cattle – potable water to contiguous population – fish catch – fishing nets – agricultural produce – economic loss due to non- approachability of fishermen to sea shore directly * The designs of the aquaculture farms are inadequate. No provision has been made for wastewater treatment facility enabling recycling and re-use of wastewater * Prohibition on conversion of agricultural lands and salt farms into commercial aquaculture farms must be enforced with immediate effect * Wild seed collection from creek and sea must be prohibited.

Seed must be procured from hatcheries * An eco-restoration fund must be created by collecting the stipulated fees from the owners of aquaculture farms. In addition, one percent of total export earnings per annum must also be collected from commercial aquaculture farm owners and used for rejuvenation of coastal eco-system with special reference to plantation of mangroves and common eco-sensitive zones. The wastewater treatment system with reuse and recycle must be installed by all units. The smaller units can form a co- operative and treat their water through common effluent treatment plant. The aquaculture units must be closed down in the wastewater treatment system is not functioning to its design efficiency * Drainage canals must be constructed around the existing ponds to collect seepage from the pond which will prevent the intrusion of saline water into the adjoining agricultural fields & residential areas. The design and construction of the drainage canal/bund must be undertaken scientifically based on the topographical features of the area.

This will avoid the flooding of the area with saline water, and will help in restoration or hygienic & sanitary conditions in the nearby residential areas.” The two NEERI reports clearly indicate that due to commercial acqua-culture farming there is considerable degradation of the Mangrove eco-systems, depretion of Casurina plantations, pollution of potable waters, reduction in fish catch, and blockage of direct approach to the sea- shore. Agriculture lands and salt farms are being converted into commercial acqua-culture farms. The ground water has go contaminated due to seepage of impounded water from the acqua-culture farms. Highly polluted effluents are discharged by the shrimp-farms into the sea and on the sea- coast.

A report titled “Expert Committee Report on Impact of Shrimp Farms Along The Coast of Tamil Nadu and Pondicherry” has been placed on the record, Justice M. Suresh, a retired judge of the Bombay High Court, Mr. A. Sreenivasan, Joint Director of Fisheries (retd.), Dr. A.G.K. Menon, an Ichthyologist, Mr. V. Karuppan I.A.S. (retd.), Dr. M.

Arunachalam, Lecturer, Centre for Environmental Sciences, Manommaniam Sundaradar University, Tamil Nadu and Dr. K.

Dakshinamoorthy, a medical surgeon constituted the “expert committee” (Suresh Committee). Although the investigation by the Suresh Committee was done at the instance of “complaint against shrimp industries” but keeping in view the status of the committee members and the factual data collected and relied upon by the committee it would be useful to examine the same. The Suresh Committee visited various villages in Tamil Nadu and Pondicherry and gave its findings based on the evidence collected by the Committee. Some of the findings of Suresh Committee are as under:- “The farmers of Perunthottam told us that they have sold nearly 140 acres of their own lands to the Bask company and 40 acres to the Bismi company. Evidence was also given to us showing in the lands purchased by Bask Farms, where three or two crops were being cultivated. It also revealed that the percentage of yield was as much as Details regarding this are found in Annexure 15. The Bismi company has erected a pipe line till the boundary of the farm for draining sea water. It is yet to be connected to the sea.

The Bask company is situated at a distance of 150 m from the scheduled caste households. Bask Aqua Farm is situated within 500 m from the sea and the distance of Bismi Aqua farms is just 25 m from the sea. During our visit, we found Bask farms engaged in construction of Prawn farms on agricultural lands that had been purchased (Photo No. 23 & 24) ………

representative of Perunthottam village also shared before the Expert team that the yield obtained from the fields adjacent to prawn farms were affected. Moreover the villagers have lost their access to potable water as the water tables have become alkaline due to the seepage of sea water from the prawn farms. Bask farms have been using ground water for nearly two years crop. The Managing Director confirmed this before the Expert team.” The Committee visted Pichavaram Vedaranyam on July 13th/15th, 1995 and observed as under:- “It was observed that the palmyrah trees in this area which is the most drought resistant tree has dried after the onset of prawn farms in this area. Majority of the coconut trees have dried up and few remaining have stopped yielding fruits.

The unanimous opinion of the people is that most of the mangrove species are on the decline. These mangroves serve as a source of wood for domestic purposes, grazing ground for animals, water way for locals and tourists and an important habitat for fisheries increasingly polluted because of the effluent discharged by the shrimp farms. They also brought to our notice the greater value of the mangrove as a stabliser of the coast and how, because of this being disturbed by the destruction of the palmyrah, coconut and casuarins grooves, coastal erosion has become common.” Regarding visit to Pudhupetti, the Committee stated as under:- “We visited Pudhupettai on 14th July in order to get a first hand knowledge about the impact of Farisa Aqua Farm details of which was narrated by the Pudhupettai representative to the expert team on 13th July at Nagai. We saw the pucca construction of the farm’s Jetti into the sea to enable the pumping of the sea water. This clearly is acting as a hindrance for the free mobility of the finishing community and their access to sea and land…………….All these three farms are situated within 25 m from the sea. Further these farms are closely situated to the dwelling houses also. Coastal Enterprises is situated at a distance of 20 m, the Farisha Aqua farm at a distance of 250 m and Blue Base Aqua farm at 20 m from the dwellings of perumalpettai the next fishing village from Pudupettain. There is a fourth enterprise namely Abhirami Aqua farms which owns about 150 acres of wet land has not commenced work as yet………..Pipes have been laid to discharge effluent either to the sea, or adjoining dry lands belonging to the village or to the water channel used by villages for bathing. Effluent is also being discharged close to the dwelling houses. In particular, “effluent is being collected right in front of my house” said Kalvikarasi a resident of Pudupettai village who made a representation to the Expert team on July 13th. She said that “Drinking water in the village is now turning salty”.

…………….the advantages of shore seine net fishing is the abundant catch of “Anchovy” fish which has commercially viable market. The construction of permanent jetties has eliminated the `shore seine net fishing. Shore seine net fishing needs uninterrupted coastline and it has become an impossibility in Pudupettai. About 10 shore seine nets are idle in the village. The construction of pipe to discharge effluent is a permanent one. By construction of the permanent jetties, the natural sand dues in the village were destroyed. These sand dunes are a natural cyclone barriers. Hence a threat of cyclone barriers. Hence a threat of cyclone is imminent since these natural cyclone barriers are destroyed.

The construction of pipelines ending in the sea for pumping in sea water has damaged nearly 10 nets worth Rs.60,000/-. Details of nets damaged is given in Annexure 19. The Coastal Enterprises Ltd.

has encroached the burial ground of Pudupettai and Blue Base Aqua Farms has encroached the burial ground of Perumalpettai.

The Committee visited the Pullicat take area on July 18, 1995. The findings of the Committee are as under:- “Ecologically the Tamilnadu part of the Pulicat lake is important since it has the only opening of the lake into the sea thus functioning as the migratory route of these spawning animals like prawns, fish and mud crabs. The mud rlats of Pulicat lake harbours a number of winter migratory birds. e were told that the water fowl sanctuary at Pulicat is slowly being destroyed, ………We observed that Prawn farms are located all around the wetland. In the northern region of the lake prawn farms are situated even in the lake-bed. Maheshwari Export India Ltd is constructing a Prawn Farm across the Pulicant lake bed clearly violative of the Tamilnadu Aqua Culture Regulation Act. We also noticed water being pumped out from the lake into the Prawn farms.

According to Dr. Sanjeeva Raj, Pulicat lake has two bird sanctuaries namely Yedurapattu and Nelapattu. It is estimated that nearly 10-15 thousand of flamingoes and other rare birds visit the Pulicat lake for four months only for feeding all the way from Rann of Kutch. Other water birds like pelicans, Cormorants, Egrets and Herons breed at Nelapattu and feed at this Pulicat Take. At Yedurapattu, Painted Storks, Pelicans, and Open Bills also feed here. In 1993 it was estimated that there was 10000 to 15000 Flemingoes. By 1994 this has been reduced to less than 1000. The reason for this can be attributed to the effluent from prawn farms which kills the organisms on which the Flamingoes feed. The depletion of natural feed could have caused this reduction. ……….The Tamilnadu forest Department is establishing a third sanctuary in the southern tip of Pulicat lake.

We were told that due to the noise of oil engines, bulldozers and other disturbances by the prawn farms many birds especially painted storks have deserted this lake Dr. Sanjeeva Raj also states that Pulicat is ecologically very sensitive and fragile. The east coast is vulnerable to cyclones, With the hundreds of prawn farms along the coast excavating sand along the coast line every possibility existed for inviting the sea to enter and destroy the water table. Further, prawn farms destroys sand dunes and vegetations and in times of tidal waves sea water could enter in a big way.

Further, Dr. Sanjeeva Raj said that Pulicat lake is fairly shallow with an average depth of about 1.5 m. It can be described as a saucer.

The pumping of water by aquafarms up of the lake. Added to this the road, from Sulurpet that has been constructed for reaching the Shriharikotta rocket launching site through the lake has obstructed free flow of water. It is generally claimed by the prawn farm owners that the land on the eastern of the road is not the part of Pulicat lake and hence prawn farms can be constructed. This is false as all this land area is part of the Pulicat lake. The tragedy is that if prawn farms are erected on the higher side of the lake, the effluent from the prawn farms will flow back into the lake causing serious damage to marine and estuarine biota……….Pasiapuram Rajiv Gandhi Nagar has a dalit hamlet Edamani. This hamlet had a water tank which provided water to the nearby 35 villages. The source of water was the villages. The source of water was the village ground water. But due to the impact of the adjoining farm the water became saline making it unsuitable for consumption.

An eminent danger by the prawn companies is to the village called Jamila Badh. This village has 150 muslim families (fisher). They were originally living in the land on which the Shriharikotta Space Research Station is built. These families were relocated by the Government promising jobs and providing free housing site near the Pulicat lake. The built their own huts at the cost of Rs.5000 each. These huts today face serious flood threat since on both sides of the village two prawn enterprises have obstructed the Ponneri lake water to flow in to the sea. This obstruction due to the construction of Prawn farms floods the village.

From 1991 till date every year water reaches the boundary of the village and before it could enter inside nearly 2000 village people manudily divert the water to the sea. Though the village people have made representation and protested to the owners, they use their economic and Political Power to scare the fishing People and make them live in a permanent state of fear, People also told us that they areaffected by itching, scabies, and lever which could be due to the dischargeof effluent.” The Committes’ observations regurding Karaikal district Pondicherry are as under:

“As quoted by the Pondichery Science Forum, :Karaikal region has only 20 Kms of coastal stretch.

This coastal stretch is of environmental significance as the area and its environs have creeks and lagoons beaches with dunes, coasted Platns, natural reeves, Flood plain and is also the tail end of the Cauvery river basin, Karaikal is considered as the granary of Pondicherry and has main irrigation canals like NIni Kattalai Pidari Kattalal and Arasapuram:.

The ground water reserves of Karaikal is Frightfully meagre but for the only sweet water aquifer at about 10 to 20 ft deep there is no other Potable aquifer. This water source cannot be expionted continuously since it takes time to recharge and Poses danger of sed water intrusion. Only manual hand Pumps are being used to tap this water at Present.

It is in this context Karaikal is Posed with the serious danger of loosing this sweet water aquiter as most of the small Prawn farms are in the process of deriving water during the high tides from the rivers like. Mullaiyar, Thirumalairayananar. Arasalar Nandalar and Pravidayanar and also use ground water for Shrimp culture. This continuous withdrawal of fresh water will alter surface water resources. So, there is no Possibility for the recharging mechanisms as the wet lands near these river basnis are converted to aquafarms and these wet lands have lost their function of absorbing rain water and recharging the aquifer zones.” The conclusions reached by the Suresh Committee under various headings indicating the impact of shrimp culture farming on environment are reproduced hereunder;

“(a) Effluent Pollution As Shrimp Culture using high protein feeds is a highly polluting activity. Presently 78,000 tonnes feed is used in India in Shrimp Culture. This is bio-degradable, if properly treated. It leaves behind responded solids (organic) and the decomposition liberates inorganic N and P.77.5% of N and 86% of P from the feed are worked and enter the pond environment. 1 ton or P.monodon production results in a pollution load of 56.3-48.1 Kg N and 13.0-24.4 Kg P. (Phillips et at 1993. ICLARM. Conf. Proc 31 1/1 198).

Excess amounts of P and N are detrimental to environment ( 1994 SACMONID XVII (4); 10-14).

These lead to “hyper eutrophication” resulting in massive algal blooms and oxygen depletion which are harmful to aquatic like. These blooms such as “Red tide” cause fish mortality.

The effluent quality during harvesting the shrimp is:

total nitrogen 1900-2600 ppm, total 0 48-110 PPM and organic carbon 7.3-13.7 ppm. The impact of this is the reduced oxygen, hyper nitrification, alteration of community structure, sedinextation, changes in besithic communities etc. (Phillips et al 1993).

Further “Self pollution” results from feed wasted, which becomes unmanageable (lmre Csavas 1994. Shrimp News International, March-April 1994). Organic wastes, solid matter, dissolved metabolites like ammonia, Carbon-dioxide are produced. Decomposing organic matter depletes oxygen from water.

Admittedly being biodegradable the effluents consume oxygen and so denude the water of its oxygen.

When there is oxygen deficit, fish avoid such low oxygen zones and move further away to oxygen saturated zones and when there is oxygen depletion fish die en-masse.

Fishing village near whose coast shrimp ponds have come up – fish have become scarce and the artisanal fishermen have to go further away from shore to catch fish. Population of fish and their diversity decrease.

…………With regard to farm effluents being treated and discharged into the sea and other water bodies. We did not see or hear about any such scientific process of effluent treatment having been set up by prawn farms.

In m/s Bask farms we were shown two partially dry sedimentation tanks.

We saw untreated effluents from m/s Amaigam shrimp farm being discharged the beach (not even into the sea causing degradation of the shore with dark brown, four smelling organic matter, which is a hazard. The Joint Director, MPLDA itself has stated that “most of the farms have not set up effluent treatment systems.

(b) Slinisation The dominant species of Shrimp cultured is Penaeus monodon the tiger prawn and next comes the white prawn, P. indicus. Both are marine prawns. P.monodon grows best at salinities of 10-20 p.pt (20%) but tolerate slightly higher or lower salinities. P. indicus requires higher salinity 20-30 ppt.

Thus seawater is the primary medium of growth. Seawater or salinity 55- 36 ppt is taken into the ponds. The growing period ranges from 120-150 days. Sea water is periodically replaced. Sea water is periodically replaced. Sea water remaining in the pond for a long period seeps into neighbouring areas where agriculture is practiced and salinizes the soils which therefore lose their productivity for crops and become unfit for agriculture.

Even assuring that the 500 m zonation is enforced it will not solve the problem of salination.

Agriculture lands, inwards (towards inland) of shrimp ponds will become saline and the chain reaction will continue. ………… Many shrimp industries assert that they are taking only sea water for shrimp culture and do not use ground water. Sea water has a salinity around 35 ppt. It is mostly Penaeus monodon the tiger shrimp. This needs a salinity in the range of 15-20 ppt for optimum growth. 30 the shrimp producer have necessarily to dilute it to bring down the salinity by adding fresh water. Let along ground water, we have even seen river water being pumped near Poompuhar into to shrimp ponds. …………..

Salinization is not only possible but has actually happened all over the world. The Bhagwathi Institute of Environment and Development, analysed numerous samples of water adjacent to shrimp farms in Sirkali Taluk, TN, and found that in most of them Chlorides exceeded the permitted limits even by over 100 times for eg.15265 mg/1 in drinking water source near Suryakumar Shrimp co. Mahendrapalle. In Kurru village, Nellore District, drinking water became saline after four shrimp farms were established and 500 people of this village had no drinking water (Vandana Shiva 1994, “Social and Environmental impact or Aquaculture). Dr. Alagarswami, Director CIBA identifies salinization of drinking water, wells, dwelling units adjoining agriculture lands and aquifers as critical issues in shrimp culture.

(National Workshop on Transfer of Technology for sustainable shrimp Farming, Ms. Swaminathan Foundation Madras, January 9-10, 1995) Dr. V.

Gopalakrishnan, former FAO export says “salt water seepage problem appears to be genuine and such area should be avoided for establishing new shrimp farms” (Fish & Fisheries, Newsletter No 4 January 1995). Dr. Sanjeevaraj noted that in Political lake, saltwater from Prawn ponds was known to be seeping into drinking water tables (COPDANET NEWSLETTER winter 1994).

……….. We have noted the salinization of drinking water in Pudukuppam, Naicker Kuppam, Poompuhar, Perunthottam, Pudupet, etc in Sirkali Taluk caused by large shrimp units and also in a very acute manner in Pattinamarudur, iluticorin, VOC district which is sandwitched between two large farms viz. DTC and MAC Aqua farms Ltd.

(c) Feed and wastes In a moderate 3 t/ha yield of shrimp, 4-6 t/ha feed is applied while for a yield of 5t/ha it is 15t/ha. The magnitude of putreseible organic matter from these wastes is enormous. Hence, the practice of discharging such effluents into common water bodies needs to be strongly discouraged because of the strongly polluting effect (Mackintosh. D.J. INFOFISH.

International 6/92. 38/41). Feed wastes are more toxic than sewage and this is a sufficient ground for banning industrial Shrimp Culture.

…………..The Team found that Amalgam marine Harvests, was blatantly discharging the effluents into the foreshore narrow sandy breach at Pudukuppam. This has spoiled the aesthetic appearance of the beach. The area is dark brown in colour and foul smelling. This will pose a serious hazard to Public Health. The wastes also enter “Uppanar” stream hardly 5 m away from discharge point. This is illegal and affects the health of villages. Settleable solids silt up the ponds and canals. Over accumulation of detritus leads to profusion of protozoa, and ciliates, which cover the body of Pisa, Respiratory diseases, loss of appetite, black gill disease, shell disease, foul smell of internal parts, tail rot etc are caused on such unhealthy pond conditions. The quality of effluents discharged into the environment are so poor that biological methods will not be sufficient to treat them. Most of the environmental troubles are caused by the industrial shrimp.

The coastal zone used for culturing aquatic organisms is only a narrow strip on the continental shell and on the low lying flatlands. Hence the very fragile nature of the coatal ecosystem is getting destroyed.

(d) Fertilizers and therapeutants Large quantities of feeds are being used and fertilizer applications are generally minimal.

Lime is regularly used but continued use of lime impoverished the soil. It also hardens the soil.

However, it is the use of therapeutants that is highly destructive of the environment. A very incisive account of the use of drugs in aquaculture is available from P. de. Kinklein and C. Michael (INFOFISL International 4/92; 45-46 1992) and an exhaustive report is provided by Fred P. Meyer, an authority on the subject. (Review in Aquaculture sciences Ve 1 (4):

693-710 1989). However the use of drugs has only aggravated the damage to environment. Sulpha drugs, Tetracyclines, Quinolones, Nitrofurans, macrolids (for erythromycin). Chloramphenicol, and dozens of similar drugs are in use.

Organophosphorus compounds like Dichlorvas are also used. Formalin, malachite green copper sulphate, quaternary ammonium compounds, Iodophores, chloramine -I etc., are used as sanitizers.

Viruses cannot be treated by any of the drugs. Renibacterium sp is also resistant to drugs.

Chemotherapy leads to transit of drugs and their long persistence.

Rebase of drugs or their metabolites into the environment affects the non-target organisms.

Uses of steroids (Di-dehyl in ponds has carcinogenic effect on humans.

Use of chloramphenicol has unpredictable risks for human beings. Effluent treatment and self-recovery are hampered by the drugs by suppressing saprophytic bacteria involved in purification processes. Softs accumulate drug residues.

(e) Loss of Mangroves and Biodiversity We observed that removal or destruction of these important mangrove habitats for establishing shrimp farms is becoming increasingly common along the coast of Tamilnadu. From the Photographs (No. 40-45 showing the destruction of mangroves-bunds are already built), it is evident that there are several shrimp farms on the banks of Pitchavaram Mangrove forests a valuable Habitat. For the farms, water intake from the habitat will lead to virtual dryness of the habitat and the loss of biodiversity in this valuable reaim. It is evident that the consequences are felt by the existing farms (Palmyarh and coconut trees in nearby farms are withering – Photograph No.46 & 47).

The destruction of the mangroves (Photo No. 40-42) for shrimp farm will be a major cause for the loss of habitat diversity along the coastline of Tamilnadu. We are going to lose a valuable gene pool and thus conservation of mangroves genetic resources from the activities of shrimp industry is a matter of primary urgency.

(f) Loss of Biodiversity in Cauvery flood plain and delta The stagnation of water in this lower reaches is due to the illegal damming at several places along the course and the obstruction of feeder canals and distributors to the main river.

Once considered a best estuary and the delta of cauvery are now vanished (Photo No.48 showing the ill fated Cauvery). Also in the lower reaches in Nagai district, Tamilnadu, low land drains regulator has been used for their effluent release (Photo No.49) showing the block and the P.W.D.

feeder canals are either blocked by the farm owners or using as drainage for effluent release by Amalgam Marine Harvests Ltd at Pudhukkuppam (Photo No.50) from the farms. These canals and drains once used as a freshwater resource for bathing and rechargers for the wells for the fisher folk in several villages now become saline because of the cessation of flow (example : Pudukuppam village of Sirkali faluk district; Pudupettal village Tharangampadi faluk.

…………Seed collection of Peneaus monodon (tiger prawn) by children is a regular practice in these canals now. During their collection of seeds the children picked only the tiger prawn seeds and threw away all other shrimp and fish seeds, thus depleting the estuarine and coastal fishery resources. One child get paise 0.10 for the tiger prawn seed and one earns about Rupees one hundred (Rs.100 per day and 40-50 children are engaged in seed collection).

This involves child labour and depletion of fishery resources and the loss of biodiversity in coastal and beltaic regions of Cauvery.

Nursery grounds for shell and fin fishes are lost in this ancient river delta.

(g) Threatened Wetlands of National and International Importance The marshy swamps of Vedaranyam are now as threatened habitats with the formation of shrimp culture all along the brackish water zones and in the marshy swamps …………Another wet land of national importance, which is being threatened is Pulicat lake. Report A (1992) by the Ministry of Environment and forests, Government of India clearly stressed the need of conserving these wetlands of national importance. ……….In the Government of India Report Pulicat Lake has been identified as an important lagoon (p.8 of the Report). This fragile ecosystem has been under great threat by the industrial shrimp farming. In the main brackish water area, construction of bunds is going on (Photo No.55 to 66). From the photographs it is evident that the marshy lands with its typical marshy vegetation is the only area left and almost all the marshy areas are being lost because of the upcoming shrimp culture ponds.

These areas of marshy vegetation act as spawning/nursery grounds for a variety of estuarine/marine invertebrates, and fishes. These areas also provide wildlife habitats to several migrant birds.

(h) Impact on agriculture Dr. Alagarswami, Director CIBA identifies “indiscriminate conversion of agricultural lands into shrimp culture” as a critical issue. Most shrimp farmers in coastal areas have converted agricultural lands is the fact ponds. More relevant is the fact that shrimp industry causes salinisation of crop lands, Seawater (Salinity around 35 ppt i.e.35%) is pumped into the shrimp ponds. The growing period is from 120-150 days. This long detention of saline water in the shrimp ponds seeps into the adjacent crop lands and salinizes them resulting in reduction or productivity of even barrenness. Then this “Unproductive” land (so declared by the shrimp industries) is converted into shrimp ponds We are concerned that conversion of paddy fields to shrimp ponds is already adversely affecting local rice production. In all the places we visited in NUM district pattinamarudur of luticorin, Pulicat of Chengai MGR districts Etc; most of the shrimp ponds are constructed on fertile agricultural land or on marginal lands where on crop is raised.

Owing to the recent shortage of Cauvery water (dispute between T.N.

and Karnataka) the yield of crops has been affected. Taking advantage of this, Shrimp industries have been buying up agricultural land through inducement,, persuasion and high pressure on revenue authorities. Salinization of soil and water adjoining the shrimp farms is very well documented for Perunthottam village. As per the cultivation record for land purchased by Bask farms we see clearly that the ands purchased were fertile agricultural lands with an average of two crops having a 60% harvest yield.

(i) Denial of potable water “Nagai, Q.M. districts of Tamilnadu, the erstwhile granary of South” is today threatened with pollution, ecological imbalance and land alienation because of the arrival of large number of private companies and translational corporations that have been investing heavily in shrimp farms etc” (Mukul Sharma: Interpress service November 11 1994). Drinking water in the vicinity of shrimp farms has become saline, wherever such farms were operated. Shrimp culture may increase salinity through facilitating the flow of saline water inland and discharge of saline effluent (Phillips, Kwel lin and Beveridge 1993.) Water samples from 7 villages in Sirkazhi near the shrimp farms were analysed by Bhagwathi Environment Development Institute at Dindigul.

It was found that the water from bore wells and hand pumps were unpotable (see Annexure) The villages affected were Mahendrapatti, Neithavasal, Pudukuppam, Eranyimedu, Keelaiyun, Thirunagari, nirajimedu etc. This was also confirmed by the Bharatiya Mazdoor Sangh in Kurru village.

Nellore Dt where all the freshwater wells became saline and unpotable after 4 shrimp farms were established. The proof of this was the fast that the District Collector, Nellore ordered the supply of drinking water through tankers, to these villagers. Dr. P.

Sanjeev Raj (COPDANET NEWS LETTER winter 1994) also found that salt water from shrimp pond seeped into drinking water sources. Dr. Vandana Shiva, after visiting some villages recorded that “shortage of drinking water and deterioration of its quality have resulted in the neighbourhood of shrimp farms”.

Protection of ground water sources may be viewed as nontradeable capital, as once contaminated, they may prove impossible to rehabilitate (mark Eyvarard 1994).

As per the study done by BEDI, Water sample from a drinking water well in Naikarkuppam had a IDS of 2164 mg/1 and a chloride content of 99 mg/1 in addition to excessive quantities of MG and Ca. Samples collected from a drinking water hand pump near Shriram Shrimp farm now Amalgam farms had an exceedingly high TDS of 357/8 mg/1, hardness of 7506 mg/I which is as bad as seawater. Unacceptably high Ca, Mg and sulphate were recorded.

Another hand pump near the same farm had a TDS of 1466 mg/ and a chloride content of 656 ppm which are unpotable.

Drinking water from a handpump near the shrimp farm of Coastal Enterprises Ltd had a TDS of 7694, chloride of 3879, hardness or 24/0 mq/I and so was unpotable.” The three reports discussed above give a rather depressing scenario of the shrim industry. While the production increases and export earnings of the industry are well publicised, the socio-economic losses and environmental degradation affecting the well-being of coastal population are hardly noticed. The traditional production systems are being replaced by more intensive ones. This have been ecouraged by increasing demand from high income countries.

Shrimp yield per hectare in many areas increased within a few years from an average 100 kg/ha per harvest to an average of 1000 kg/ha/crop for semi-intensive shrimp farms and to between 2000 and 10000 kg/ha/crop for intensive type of production. The social and environmental costs of the expanding shrimp industry are closely inter-related.

Pollution and other types of natural resource degradation induced by shrimp farming have been considerably, highlighted in the NEERI reports and other material quoted and discussed by us. Social and environmental changes resulting from expanding shrimp industry in coastal areas are largely due to the conversion into shrimp farms of the lands, waters and forests which were earlier dedicated to other uses. In fact, shrimp farms are developing at the expense of other agriculture, acquaculture, forest uses and fisheries that are better suited in many places for meeting local food and employment requirements. Intensive and semi- intensive types of shrimp production hardly seem to meet these requirements.

Mangrove forests constitute an important component of coastal eco-systems. They thrive in tidle estuaries, salt marshes and muddy coast lines. Conversion of mangrove to shrimp farms significantly reduces the natural production of wild capture shrimp as well as other fisheries. More over, their production role for low-lying coastal regions is rapidly dimnishing by their replacement by shrimp ponds. The Sunder Bans, which constitute one of the biggest mangrove areas in the world, covered in the early 1990s about 12000 sq. kms. in India and Bangladesh. In the West Bengal part of Sunder Bans large mangrove areas have been replaced by the shrimp ponds.

The increasing need for land by shrimp enterpreneurs has meant a dramatic rise in land prices in many areas.

After the installation of shrimp farms near village lands, prices rise estronomically. Local farmers can no longer afford to purchase land, while indebted farmers are tempted to sell their holdings. Much of the coastal land recently converted into shrimp farms was previously used for food crops and traditional fishing.

The United Nations Research Institute for Social Development in colloboration with the World Wide Fund for Nature International has conducted a study and published a report dated June 19, 1995 called “Some Ecological and Social Implications of Commercial Shrimp Farming in Asia”.

The report is prepared by Solon Barraclong and Andrea Finger – Stich (the UN Report).

The UN Report gives the following picture regarding polluted waters and depleted fisheries:- “Polluted waters and depleted fisheries: Shrimp farms use both sea and fresh water to replenish their ponds. This brings them into competition with other users of these water resources. In areas where commercial shrimp ponds have been constructed there is frequently insufficient fresh water left to met customary needs for irrigation, drinking, washing, or other household and livestock related uses, and water supplies may be contaminated, or both.

Groundwater salinization has been reported in several places. This often means that people – most of the time women – have to bring water from more distant wells. In a village in Tamil Nadu (Nagar-Quaid- e-Millet district, Pompuhar region), for example, women have to walk two to three kilometres to fetch drinking water that previously was available nearby before the expansion of shrimp farms on about 10,000 hectares (Bhagat, 1994). In Andhra Pradesh, a case study conducted by Vandana Shiva reports that, in the Nellore district, there was no drinking water available for the 600 fisherfolk of the village of Kurru due to aquaculture farms salinizing groundwater. She adds that “after protest from the local women, drinking water was supplied in tankers” (Mukul, 1994)………Local stocks of native fish and crustaceans are being depleted in many places because of the removal of mangroves which served as nurserybeds, and also as a result of indiscriminate overfishing of wild shrimp fry (over 90 per cent of randomly caught fry are often wasted [Gujja, 1994]). Natural fisheries are also frequently damaged by pollution caused by overloads of nutrients, sediments and chemicals from shrimp farms. In another Indian coastal village, Ramachandrapuram, fishermen reported that the value of their average catch of shrimp used to be Rs.50,000 per catamaran per month, but after one year of operation of nearby aquafarms their catch was ten times smaller (Mukul, 1994). In the Chokoria part of the Sundarbans’ of Bangladesh, fishermen report an 80 per cent drop in fish capture since the destruction of the mangroves and building of dikes for shrimp farming (Sultna, 1994). Frequently, fisherfolk protest because their traditional access to the coast has been restricted or because stocks of wild crustaceans and fish have disappeared.

All the reports referred to by us clearly indicate that the expansion of modern shrimp ponds in the coastal areas has meant that local fishermen could only reach the beach by trespassing at great risk on shrimp farms or by taking a long detour. Local people have not only lost access to their fishing grounds and to their sources of riverine seafoods and seaweeds, but they also have to relinquish social and recreational activities traditionally taking place on their beaches. The UN Report gives the following picture regarding natural resource degradation as a result of shrimp farming:- “In areas densely covered with intensive shrimp farms, however, the industry is responsible for considerable self-pollution and particularly for bacteriological and viral contamination. Each hectare of pond produces tons of undigested feed and fasecal wastes for every crop cycle. This induces the growth of phytoplankton, protoza, fungus, bacteria and viruses (like the Vibrio group growing in shrimp faeces and in large part responsible for the 1988 collapse of Tasiwan’s production) (Lin, 1989). The overuse of fertilizers and of veterinary and sanitary products such as antibiotics adds to the water pollution problem. It also contributes to the decreasing resistance of the shrimp stock.

Where intensive shrimp farms are densely spaced, waste laden water tends to slosh from one pond to another before it is finally discharged into the sea. Shrimp producers are extremely concerned about assured supplies of clean water as it is vital for their immediate economic returns.

Large amounts of sedimentation in intensive shrimp ponds is posing serious disposal problems for shrimp farmers. From 100 to 500 tons of sediment per hectare per year are apparently accumulating.

Since only some 10 tons of feed is used to produce about 5 tons of shrimp per hectare per year, this raises questions about where such incredible quantities of sediment come from (Rosenberry, 1994a;42).

Ponds are cleaned after each crop cycle and the sediments are often discarded in water ways leading into the sea, or they are sometimes used to build dikes. Their putrefaction inside and outside the ponds causes foul odours, hypernutrification and eutrophisation, siltation and turbidity of water courses and estuaries, with detrimental implications on local fauna and flora. ………….Biodiversity losses: The impacts of semi- intensive and intensive shrimp aquaculture on biodiversity (“the totality of genes, species and ecosystems in a region”) are multiple. This is because of the land area they cover; the water they pollute; the water circulation systems they alter; the wild fish and crustacean habitats they replace; the risks they pose of disease transfer; the impacts of released raised shrimp on the genetic diversity and resilence of indigenous shrimp and possibly also their negative impacts on other native fauna and flora.

……….Health hazards: Health hazards to local populations living near or working in shrimp farms have been observed in several places. For instance, in Tamil Nadu (Quaid-e-Milleth district near Pondicherry) an approximately 1,500 acre large shrimp farm has been reported to have caused eight deaths from previously unknown diseases within a period of two months following the installation of the aquaculture farm (Naganathan et al., 1995:60/). There are numerous hazards to public health along the shrimp production chain from the farmers through the various processors to the often distant consumers. The workers employed on shrimp farms handle several potentially dangerous chemicals, and may be exposed to unsanitary working conditions.” According to the UN Report – intensive ponds have a maximum life of only 5 to 10 years. Abandoned ponds can no longer be used for shrimp and there are few known alternative uses for them except some other types of acquaculture. Apparently they can seldom be economically rehabilitated for other uses such as crop land. The extent of abandoned areas by the shrimp industry has been indicated by the UN Report in the following works:- “After a production cycle of about four of five months, shrimp ponds under intensive use are cleaned and disinfected and the polluted sludge is removed and often disposed for unsafely. This treatment, however, does not usually surfice to maintain the ponds’ productivity for more than five to ten yn years (Ibid., Annex III/12).

Entrepreneurs then move to other areas because of pollution and disease. This mode of production has been called “rape and run” (Csavas, 1994b). The altered milieu of these abandoned ponds inhibits the spontaneous regeneration of vegetation and their use for agriculture, forestry, other aquaculture or related fishing activities. These abandoned areas do not appear in worldwide estimastes of areas used for shrimp farming, which for 1993 were estimated to include 962,600 hectares, of which 847,000 hectares were in Asia. In December 1994 these areas were estimated to have increased worldwide to 1,147,500 with 1,017,000 hectares in Asia (Rosenberry, 1993 and 1994a).

Globally, areas affected by the industry’s practices over the last decade are probably at least one third larger, or even more if the total infrastructures surrounding the ponds are accounted for.” The UN Report pithily sums up the “conflicts and externalities” as under:- “A major portion of the conflicts arising from the expansion of shrimp farming are the result of environmental and social degradation that is not included in the costs of shrimp production.

Where the industry assumes no responsibility for damages to other groups arising from its activities, economists call them “externalities”. For example, abandoned ponds are usually virtually unusable for other purposes for indefinite periods without costly rehabilitation, which is seldom undertaken.

Mangrove destruction, flooding of crops, salinization or pollution of land and water associated with the expansion of shrimp farming all affect the local people depending on these resources” Alagarswami has divided the shrimp-farm technology into six types. We have already quoted the relevant paragraph 5.1.2 of the report. Although different experts have given different nomenclature to different types of shrimp farm technologies, we are of the view that the types indicated by Alagarswami in his report are based on the functioning of the shrimp culture industry in India and as such are acceptable. Keeping in view the NEERI report and other material quoted and discussed by us, we are of the view that the traditional and improved traditional types of shrimp- farm technologies – defined by Alagarswami – are environmentally benign and pollution free. Other types of technologies – extensive, modified extensive, semi intensive and intensive – create pollution and have degrading affect on the environment and coastal ecology. Such type of shrimp farms cannot be permitted to operate.

We may refer to constitutional and Statutory provisions which mandate the State to protect and improve the environment. Article 48-A of the Constitution of India states that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”. Article 51-A of the Constitution imposes as one of the fundamental duties on every citizen, the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The Environment (Protection) Act, 1986 (the Act) was enacted as a result of the decisions taken at the United Nations Conference on the Human Environment held at Stockhorm in June, 1972 in which India participated. The Indian delegation was led by the then Prime Minister of India. The Statement of objects and reason to the Act is as under:- “The decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. The world community’s resolve to protect and enhance the environmental quality.

Found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972, Government of India participate din the Conference and strongly voiced the environmental concerns. While several measures have been taken for environmental protection both before and after the Conference, the need for a general legislation further to implement the decision of the conference has become increasingly evident.” Section 2(a), 2(b), 2(c) and 2(e) of the Environment Act are as under:-

2. Definitions.-In this Act, unless the context otherwise requires,- (a) “environment” includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;

(b) “environmental pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;

(c) “environmental pollution” means the presence in the environment of any environmental pollutant;

(e) “hazardous substance” means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment;” Section 7 and 8 of the Environment Act are as under:- “7. Persons carrying on industry, operation, etc., not to allow emission or discharge of environmental pollutants in excess of the standards.- No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed.

8. Persons handling hazardous substances to comply with procedural safeguards.- No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed.

Section 15 of the Act makes contravention of the provisions of the said Act punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees or with both. If the failure or contravention continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. The effluents discharged by the commercial shrimp culture farms are covered by the definition of Environmental pollutant, environmental pollution and hazardous substance.

The NEERI reports indicate that the effluents discharged by the farms at various places were excess of the prescribed standards. Unfortunately, no action is being taken by the authorities under the Act.

Hazardous Waste (Management and Handling) Rules, 1989 (the rules) have been framed under the Act. Rule 2(i) of the rules defines “hazardous wastes” to mean categories of wastes specified in the Schedule appended to the rules.

Waste category No.12 under the Schedule to the rules is as under:- “SCHEDULE Categories of Hazardous Waste ———————————————————— Waste Categories Types of wastes Regulatory quantities ———————————————————— 1 2 3 = = = Waste category No.12 Sludges arising Irrespective of from treatment of any quality.

waste waters containing heavy metals, toxic organics, oils, emulsions and spend chemicals and incrineration ash.” Rule 5 of the rules makes it obligatory for every occupier generating hazardous wastes to obtain authorisation as provided under the said rule. Rule 5(4) requires the State Pollution Control Board not to issue and authorisation unless it is satisfied that the operator of a facility or an occupier, as the case may be, possesses appropriate facilities, technical capabilities and equipment to handle hazardous waste safely.

Mr. Mehta has vehemently contended that the shrimp culture farms are discharging highly polluting effluent which is “hazardous waste”, under the rules, Mr. Mehta relying upon the NEERI reports and other reports placed on record has contended that none of the farms have obtained authorisation from the State Pollution Control Boards.

The Water (Prevention & Control of Pollution) Act. 1974 (the Water Act) has been enacted to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water. The Statement of Objects and Reasons of the Water Act, inter alia, state as under:- “The problem of pollution of rivers and streams has assumed considerable importance and urgency in recent years as a result of the growth or industries and the increasing tendency to urbanization. It is, therefore, essential to ensure that the domestic and industrial effluents are not allowed to be discharged into the water courses without adequate treatment as such discharges would render the water unsuitable as source of drinking water as well as for supporting fish life and for use in irrigation. Pollution of rivers and streams also causes increasing damage to the country’s economy.” Section 2 (j) & (k) of the Water Act are as under:- “2. Definitions.- In this Act, unless the context otherwise requires,- (j) “stream” includes- (i) river;

(ii) water course (whether flowing or for the time being dry);

(iii) inland water (whether natural or artificial);

(iv) sub-terranean waters;

(v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;

(k) “trade effluent” includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any [industry operation or process, or treatment and disposal system], other than domestic sewage.

Section 25 of the Water Act provides that no person shall, without the previous consent of the State Board establish any industry, operation or process, of any treatment and disposal system which is likely in discharge sewage or trade effluent into a stream on well or sewer or on land. There is nothing on the record to show that the shrimp culture farm owners are even conscious of the statutory provisions which require them to obtain the necessary consent/authorisation from the concerned Pollution Control Boards.

There are other legislations like Fisheries Act 1987, Wild Life Protection Act, 1972 and Forest Conservation Act, 1980 which contain useful provisions for environment protection and pollution control. Unfortunately, the authorities responsible for the implementation of various statutory provisions are wholly re-miss in the performance of their duties under the said provisions.

At this stage we may deal with a question which has incidentally come up for our consideration. Under para 2 of the CRZ notification, the activities listed thereunder are declared as prohibited activities. Various State Governments have enacted coastal acquaculture legislations regulating the industries set up in the coastal areas. It was argued before us that certain provisions of the State legislations including that of the State of Tamil Nadu are not in consonance with the CRZ notification issued by the Government of India under Section 3(3) of the Act, Assuming that so, we are of the view that the Act being a Central legislation has the overriding effect. The Act the Environment Protection Act, 1986) has been enacted under Entry 13 of list 1 Schedule VII of the Constitution of India. The said entry is as under:- “Participation in international conferences, assessment and other bodies and implementing of decisions made there at.” The preamble to the Act clearly states that it was enacted to implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972. The Parliament has enacted the Act under Entry 13 of List 1 Schedule VII read with Article 253 of the Constitution of India the CRZ notification having been issued under the Act shall have overriding effect and shall prevail over the law made by the legislatures of the States.

This Court in Vellore Citizens Welfare Forum vs. Union of India & Ors. JT 1966 (7) SC 375 has dealt with the concept of “sustainable development” and has specifically accepted “The Precautionary Principle” and “The Polluter Pays” principle as part of the environmental laws of the land. The relevant part of the judgment is as under;

“The traditional concept that development and ecology are opposed to each other, is no longer acceptable. Sustainable Development is the answer. In the International sphere “Sustainable Development” as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called “Our Common Future”. The Commission was chaired by the then Prime Minister of Norway Ms. G.H.

Brundtland and as such the report is popularly known as “Brundtland Report”. In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called “Caring for the Earth” which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history – deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 159 nations. The delegates also approved by consensus three non binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century it areas like poverty population and pollution. During the two decades from Stockholm to Rio “Sustainable Development” has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems.

“Sustainable Development” as defined by the Brundtland Report means “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”. We have no hesitation in holding that “Sustainable Development” as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalised by the International Law Jurists.

Some of the salient principles or “Sustainable Development”, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays” principle are essential features of “Sustainable Development”. The “Precautionary Principle” – in the context of the municipal law – means:

(i) Environment measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation, (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation, (iii) The “Onus of proof” is on the actor of the developer/industrialist to show that his action is environmentally benign.

“The Polluter Pays” principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs.

Union of India JT 1996 (2) 190. The Court observed, “We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country”. The Court ruled that “Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to nay other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on”. Consequently the polluting industries are “absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water rand hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas”. The “Polluter Pays” principle as interpreted by this Court means that the obsolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable Development” and as such polluter is liable to pay the cost to the individual sefferers as well as the cost of reversing the damaged ecology.

The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:

“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. – The State shall regard the raising of the revel of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State that endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

48A. Protection and improvement of environment and safeguarding of forests and wild life. – The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” Apart from the constructional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are :

The Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act, 1986 (The Environment Act). The Water Act provides for the constitution f the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board, Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgment.

In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environment law of the country.

We are of the view that before any shrimp industry or shrimp pond is permitted to be installed in the ecology fragile coastal area it must pass through a strict environmental test. There has to be a high powered “Authority” under the Act to scrutinise each and every case from the environmental point of view. There must be an environmental impact assessment before permission is granted to instal commercial shrimp farms. The conceptual framework of the assessment must be broad-based primarily concerning environmental linked with shrimp farming. The assessment must also include the social impact on different population strata in the area. The quality of the assessment must be analytically based on superior technology. It must take into consideration the inter-generational equity and the compensation for those who are affected and prejudiced.

Before parting with this judgment, we may notice the “Dollar” based argument advanced before us. It was contended before us by the learned counsel appearing for the shrimp acquaculture industry that the industry has achieved singular distinction by earning maximum foreign exchange in the country. Almost 100 per cent of the produce is exported to America, Europe and Japan and as such the industry has a large potential to earn “Dollars”. That may be so, but the farm-raised production of shrimp is much lesser than the wild-caught production. The UN Report shows the world production of shrimp from 1982 to 1983 as under:- Table 1: World Production of Shrimp ———————————————————— Thousands of matric tons ———————————————————— Year Farm-raised Wild-caught Total ———————————————————— 1982 84 1,652 1,756 1983 143 1,683 1,626 1984 174 1,733 1,907 1985 213 1,906 2,121 1986 309 1,909 1,218 1987 551 1,909 2,264 1988 604 1,914 2,518 1989 611 1,832 2,518 1990 633 1,968 2,443 1991 690 1,968 2,601 1992 721 2,118 2,912 1993 610 2,100 2,710″ ———————————————————— It is obvious from the figures quoted above that term- raised production of shrimp is of very small quantity as compared to wild-caught Even if some of the shrimp culture farms which are polluting the environment, are closed, the production of shrimp by environmentally friendly techniques would not be affected and there may not be any loss to the economy specially in view of the finding given by NEERI that the damage caused to ecology and economics by the acquaculture farming is higher than the earnings from the sale of coastal acquaculture produce. That may be the reason for the European and American countries for not permitting their sea-coasts to be exploited for shrimp-culture farming.

The UN report shows that 80% of the farm – cultured – shrimp comes from the developing countries of Asia.

We, therefore, order and directed as under:

1. The Central Government shall constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986 and shall confer on the said authority all the powers necessary to protect the ecologically fragile coastal areas, sea shore, water front and other coastal areas and specially to deal with the situation created by the shrimp culture industry in the coastal States/Union Territories. The authority shall be headed by Judge of a High Court.

Other members preferably with expertise in the field of acquaculture, pollution control and environment protection shall be appointed by the Central Government. The Central Government shall confer on the said authority the powers to issue directions under section 5 of the Act and for taking measures with respect to the matters referred to in clauses (v), (vi), (vii), (viii), (ix), (x) and (xii) of sub-section (2) of Section 3. The Central Government shall constitute the authority before January 15, 1997.

2. The authority so constituted by the Central Government shall implement “the Precautionary Principle” and “the Polluter Pays” principles.

3. The shrimp culture industry/the shrimp ponds are covered by the prohibition contained in para 2(1) of the CRZ Notification. No shrimp culture pond can be constructed or set up within the coastal regulation zone as defined in the CRZ notification. This shall be applicable to all seas, bays, estuaries, creeks, rivers and backwaters. This direction shall not apply to traditional and improved traditional types of technologies far defined in Alagarswami report which are practised in the coastal low lying areas.

4. All acquaculture industries/shrimp culture industries/shrimp culture ponds operating/set up in the coastal regulation zone as defined under the CRZ Notification shall be demolished and removed from the said area before March 31, 1997. We direct the Superintendent of Police/Deputy Commissioner of Police and the District Magistrate/Collector of the area to enforce this direction and close/demolish all acquaculture industries/shrimp culture industries, shrimp culture ponds on or before March 31, A compliance report in this respect shall be in this Court by these authorities before April 15, 1997.

5. The farmers who are operating traditional and improved traditional systems of acquaculture may adopt improved technology for increased production productivity and return with prior approval of the “authority” constituted by this order.

6. The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of shrimp culture ponds.

7. No acquaculture industry/shrimp culture industry/shrimp culture ponds shall be constructed/set up within 1000 meter of Chilka lake and Pulicat lake (including Bird Sanctuaries namely Yadurapattu and Nelapattu)

8. Acquaculture industry/shrimp culture industry/shrimp culture ponds already operating and functioning in the said area of 1000 meter shall be closed and demolished before March 31, 1997. We direct the Superintendent of Police/Deputy Commissioner of Police and the District Magistrate/Collector of the area to enforce this direction and close/demolish and acquaculture industries/shrimp culture industries, shrimp culture ponds on or before March 31, 1997. A compliance report in this respect shall be filled in this Court by these authorities before April 15, 1997.

9. Acquaculture industry/shrimp culture industry/shrimp culture ponds other than traditional and improved traditional may be set up/constructed outside the coastal regulation zone as defined by the CRZ notification and outside 1000 meter of Chilka and Pulicat lakes with the prior approval of the “authority” as constituted by this Court. Such industries which are already operating in the said areas shall authorisation from the “Authority” before April 30, 1997 failing which the industry concerned shall stop functioning with effect from eh said date. We further direct that any acquaculture activity including intensive and semi-intensive which has the effect of causing salinity of soil, of the drinking water or wells and/or by the use of chemical feeds increases shrimp or prawn production with consequent increase in sedimentation which, on putrefaction is a potential health hazard, apart from causing silication turbidity of water courses and estuaries with detrimental implication on local fauna and flora shall not be allowed by the aforesaid Authority.

10. Acquaculture industry/shrimp culture industry/shrimp culture ponds which have been functioning/operating within the coastal regulation zone as defined by the CRZ Notification and within 1000 meter from Chilka and Puliket Lakes shall be liable to compensate the affected persons on the basis of the “polluter pays” principle.

11. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/ the affected areas and shall a individuals/families who have suffered because of the pollution and shall assess the compensation to be pain to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.

12. The authority shall compute the compensation under two heads hardly, for reversing the ecology and for payment to individuals. A statement showing amount to be recovered, the names of the whom the amount is to be recovered, the recovered from each polluter, the persons to whom the compensation is to be paid and the amount payable to each of them shall be forwarded to the Collector/District Magistrate of the area concerned. The Collector/District Magistrate shall recover the amount from the polluters, if necessary, as arrears of land revenue. He shall disburse the compensation awarded by the authority to the affected persons/families.

13. We further direct that any violation or non-compliance of the directions of this Court shall attract the provisions of the Contempt of Courts Act in addition.

14. The compensation amount recovered from the polluters shall be deposited under a separate head called “Environment Protection Fund” and shall be utilised for compensating the affected persons as identified by the authority and also for restoring the damaged environment.

15. The authority, in consultation with expert bodies like NEERI, Central Pollution Control Board, respective State Pollution Control Boards shall frame scheme/schemes for reversing the damage cause to the ecology and environment by pollutions of the coastal States/Union Territories. The scheme/schemes so framed shall be executed by the respective State Governments/Union Territory Governments under the supervision of the Central Government. The expenditure shall be met from the Environment Protection from other sources provided by the respective State Governments/Union Territory Governments and the Central Government.

16. The workmen employed in the shrimp culture industries which are to be closed in terms of this order, shall be deemed to have been retrenched with effect from April 30, 1997 provided they have been in continuous service (as defined in Section 258 of the Industrial Disputes Act, 1947) For not less than one year in the industry concerned before the said date. They shall be paid compensation in terms of Section of the Industrial Disputes Act, 1947. These workmen shall also be paid, in addition, six year’s wages as additional compensation. The compensation shall be paid to the workmen before May 31, 1997. The gratuity amount payable to the women shall be paid in addition.

The writ petition is allowed with costs. We quantify the costs as Rs. 1,40,000/-(Rupees one lac forty thousand) to be paid by the States of Gujarat. Maharashtra, Orissa, Kerala, Tamil Nadu, Andhra Pradesh and West Bengal in equal shares of Rs. 20,000/- each. The amount of Rs. 1,40,000/- realised from the seven coastal States shall be paid to Mr.

MC Mehta, Advocate who has assisted in this case throughout. We place on record our appreciation for the assistance rendered by Mr. Mehta.

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