46. As far as the implementation of the main Notification is concerned, the Vohra Committee has stated it is report that many members of the Committee expressed great concern that sufficient attention was not being paid to the enforcement of regulations. It also noted that “in the absence of anything like adequate machinery to implement the regulations, a great deal of unauthorized development is taking place on most beaches which it will be difficult if not impossible to remove in the future.” The Committee also recommended that the problems relating to the implementation of the regulations should be given high priority by the Ministry, if these are not to become a mockery.
47. With increasing threat to the environmental degradation taking place in different pats of the country, it may not be possible for any single authority to effectively control the same. Environmental degradation is best protected by the people themselves. In this connection, some of the non-governmental organization (NGOs) and other environmentalists are doing singular service. Time has perhaps come when the Government can usefully draw upon the resources of such NGOs to help and assist in the implementation of the laws relating to protection of the environment. Under Section 3 of the Act, the Central Government has the power to constitute one or more authorities for the purposes of exercising and performing such powers and functions, including the power to issue directions under Section 5 of the Act of the Central Government as may be delegated to them.
(1) Keeping in view the aforesaid observations in mind, we would direct that if any question arises with regard to the enforcement or implementation or infringement of the main Notification as amended by the notification of 1994, the same should be raised before and dealt with by the respective High Courts. In the present case, there were allegations in infringement having been taking place by allowing the setting up of industries. In Dahanu Taluka in Maharashtra in violation of the provisions of the main Notification and which industries are stated to be causing pollution. Similar, there were allegations of non-compliance with the provisions of law by a unit manufacturing alcohol in Pondicherry; with regard to Goa also a allegations have been made. As we have already observed, it will be more appropriate if the allegations so made are dealt with by the respective High Courts, for they would be in a better position to know about and appreciate the local conditions which are prevailing and the extent of environmental damage which is being caused. We, accordingly, direct that the contentions raised in the petition regarding infringement of the main Notification and of the notification dated 20/6/1991 relating to Dahanu Taluka should be dealt with by the Bombay High Court. The high Court may issue such directions as it may deem fit and proper in order to ensure that the said notifications are effectively implemented and complied with. A copy of the writ petition along with a copy of the judgement should be sent to the High Court by the Registry for appropriate orders. As regards as Nos. 17-18 of 1995 relating to alcohol- manufacturing unit at Pondicherry, the said application is transferred to the Madras High Court for disposal in accordance with law.
(2) Any allegation with regard to the infringement of any of the notifications dated 19/2/1991 and 18/8/1994 field in the High Courts having territorial jurisdiction over the areas in respect of which the allegations are made. As far as this Court is concerned, this matter stands concluded except to examine the reports which are to be field by all the States with regard to the approval of the Management Plans, or any classification which may be sought.
(3) Considering the fact that the Pollution Control Boards are not only overworked but simultaneously have a limited role to play insofar as it relates to controlling of polluting for the purpose of ensuring effective implementation of the notifications of 1991 and 1994, as also of the Management Plans, the Central Government should consider setting up under Section 3 of the Act, State Coastal Management Authorities in each State or zone and also a National Coastal Management Authority.
(4) The Stated which have not field the Management Plans with the Central Government are directed to file the complete plans by 30/6/1996. The Central Government shall finalise and approve the said plans, with or without modifications within three months thereafter. It is possible that the plans as submitted by the respective State Government and Union Territories may not be acceptable to the Ministry of Environment and Forests. Returning the said plans for modifications and then resubmission of the same may become an unnecessary, time consuming and, perhaps, a futile exercise. In order to ensure that these plans are finalized at the very earliest, we direct that the plans as submitted will be examined by the Central Government who will inform the State Government or the Union Territory concerned with regard to any short comings or modifications which the Ministry of Environment and Forests may suggest. It necessary, a discussion among the representatives of the State Government and the Ministry of Environment and Forests should take place and finalized by the Ministry of Environment, if necessary, by carrying out such modifications as may be required. The decision by the Ministry of Environment and Forest in this regard shall be final and binding.
A report with regard to the submission and the finalization of the plans should be filed in this Court and the case will be listed for nothing compliance in September 1996.
(5) Pending finalization of the plans, the interim orders passed by this Court on 12/2/1994 and 9/3/1995 shall continue to operate.
(6) Four States, namely, Andhra Pradesh, Gujarat, Karnataka and Kerala have not yet submitted their Management plans to the Central Government. There is thus a clear non-compliance with the direction issued by this Court on 12/12/1994 and 9/3/1995. We are issue notices to the Chief Secretaries of these States to explain and show cause why further appropriate action be not taken for this non-compliance. The notices are to be returnable after six weeks.
Indian Council for Enviro-Legal Action v. Union of India
AIR 1996 Supreme Court 1446
Writ Petition (Civil) No. 967 of 1989 with Writ Petition (Civil) Nos. 94 of 1990. 824 of 1993 and 76 of 1994, D/-13-2-1996
B. P. Jeevan Reddy and B. N. Kirpal. JJ.
(A) Constitution of India, Arts, 32, 21 – Writ petition - Tenability – Social action litigation on behalf of villagers – Invasion of their right to life because of pollution caused by private companies alleged – Petition directed against Central and State Governments and State Pollution Control Board to compel them to perform their statutory duties – Cannot be said to be not maintainable on ground that private companies are not amenable to writ jurisdiction – Moreover S. C. has power and duty to intervene and protect right to life of citizens.
(B) Constitution of India, Art. 32 – Practice and procedure – Reports from experts – Use of – Petition alleging invasion of right to life because of pollution caused by private companies – Reports from experts called by Supreme Court – Various orders passed from time to time on basis of reports – Objection to use of reports without opportunity to cross-examine experts – Raised after lapse of several years – Not tenable.
(Para 55) (C) Constitution of India, Art. 32 – Powers of Supreme Court – Petition complaining of pollution caused by private companies – Supreme Court can direct Central Govt. To recover Costs of remedial measures from companies – Question whether Court under Art. 32 can award damages against private company left open.
Even if it is assumed that Supreme Court cannot award damages against the private companies responsible for causing pollution in proceedings under Art. 32 that does not mean that the Supreme Court cannot direct the Central Government to determine and recover the cost of remedial measures from the private companies. Read with the wide definition of “environment” in S. 2 (a), Ss. 3 and 5 of the Environment (Protection) Act clothe the Central Government with all such powers as are “necessary or expedient for the purpose of protecting and improving the quality of the environment”. The Central Government is empowered to take all measures and issue all such directions as are called for the above purpose. In the present case where pollution is caused by sludge created by chemical industries, the said powers will include giving directions for the removal of sludge, for undertaking remedial measures and also the power to impose the cost of remedial measures on the offending industry and utilize the amount so recovered for carrying out remedial measures. The Supreme Court can certainly give directions to the Central Government/its delegate to take all such measures, if in a given case the Court finds that such directions are warranted. It cannot be therefore said that the Supreme Court cannot make appropriate directions for the purpose of ensuring remedial action. It is more a matter of form.
(D) Torts – Negligence – Person carrying on hazardous or inherently dangerous activity – Rule of absolute liability for damage caused laid down in AIR 1987 SC 1086, oleum gas leak case – Is appropriate and binding.
The rule laid down by Supreme Court in oleum gas leak case (AIR 1987 SC 1086), namely 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 is by far the more appropriate one and binding. The rule is premised upon the very nature of the activity carried on. In the words of the Constitution Bench, such an activity “can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not”. The Constitution Bench has also assigned the reason for stating the law in the said terms. It is that the enterprise (carrying on the hazardous or inherently dangerous activity) alone has the resource to discover and guard against hazards or dangers – and not the person affected and the practical difficulty on the part of the affected person, in establishing the absence of reasonable care or that the damage to him was foreseeable by the enterprise.
(Para 65) (E) Environmental (Protection) Act (29 of 1986), Ss. 3, 4 – Pollution – Remedial measures – Costs for carrying out – Can be levied by Central Govt. on polluter – Such power is implicit in Ss. 3, 4.
(F) Environmental (Protection) Act (29 of 1986), Ss. 3, 5 – Pollution – Remedial measures – Liability of polluter to defray costs – Is universally accepted as a sound principle – Ss. 3 and 5 empower the Central Government to give directions and take measures for giving effect to this principle.
(G) Environmental (Protection) Act (29 of 1986), Ss. 3, 5 – Constitution of India, Art. 32 – Pollution caused in Bichhri village due to chemical industries producing H acid and sulphuric acid – Direction given to Central Govt. to determine amount required for remedial measures – Amount so determined to be paid by the chemical industries – Supreme court directed attachment of factories, plant, machinery and all other immovable assets of these industries – Also directed their closure.
(H) Environmental (Protection) Act (29 of 1986), Ss. 3, 5 – Environmental pollution – Chemical industries – Are main culprits – Their establishment and functioning must be scrutinized more rigorously.
Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinizing their establishment and functioning more rigorously. No distinction should be made in this behalf as between a large-scale industry and a small-scale industry or for that matter between a large-scale industry and a medium-scale industry, All chemical industries, whether big or small, should be allowed to be established only after taking into considerations all the environmental aspects and their functioning should be monitored closely to ensure that they do not pollute the environment around them. It appears that most of these industries are water intensive industries. If so the advisability of allowing the establishment of these industries in arid areas may also require examination. Even the existing chemical industries may be subjected to such a study and if it is found on such scrutiny that it is necessary to take any steps in the interests of environment, appropriate directions in that behalf may be issued under Ss. 3 and 5 of the Environment Act.
(I) Constitution of India, Art. 32 – Environmental pollution – Creation of Environmental Courts – Need stressed – Central Government directed to consider the advisability of strengthening the environment protection machinery both at the Centre and the states and provide them more teeth – Also Directed to consider the idea of an environmental audit by specialist bodies having power to inspect, cheek and take necessary action not only against erring industries but also against erring officers.
Environmental (Protection) Act (29 of 1986), S.1.
(J) Constitution of India, Art. 32 – Costs – Petition by environmentalist organization bringing to light pollution hazards caused by chemical industries in Bichhri village – Polluter industries directed to pay costs of Rs. 50,000/- to petitioner organization.
Civil P. C. (5 of 1908), S. 35.
Cases Referred: Chronological Paras
1995 (5) SCALE 578 (SC) 44,60
(1995) 2 Guj LR 1210 4,47
(1994) 2 WLR 53 (HL), Cambridge Water Company v. Eastern
Countries Leather, PL 63
(1994) 68 AUS 331, Burnic Post Authority Vs. General Joners Pvt. Ltd. 64
(1885) 29 Ch D 115: 52 LT 942: 54 LJ Ch 454, Ballard v. Tomlinson 63
(1868) LR 3 HL 330: 19 LT 220: 37 LJ Ex 161,
Rylands v. Fletcher 58, 59, 61, 63, 64
B.P. JEEVAN REDDY, J.:-Writ Petition (C) No. 967 OF 1989: This writ petition filed by an environmentalist organization brings to light the woes of people living in the vicinity of chemical industrial plants in India. It highlights the disregard, any, contempt for law and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, as they do, of the country’s need for industrialization and export earnings. Pursuit of profit has absolutely drained them of any feeling for fellow human beings-for that matter, for any thing else. And the law seems to have been helpless. Systemic defects? It is such instances which have led many people in this country to believe that disregard of law pays and that the consequences of such disregard will never be visited upon them particularly, if they are men with means. Strong words indeed – but nothing less would reflect the deep sense of hurt, the hearing of this case has instilled in us. The facts of the case will bear out this opening remark.
2. Bichhri is a small village in Udaipur district of Rajasthan. To its north is a major industrial establishment, Hindustan Zinc Limited, a public sector concern. That did not affect Bichhri. Its woes began somewhere in 1987 when the fourth respondent herein, Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum (said to be the concentrated form of Sulphuric acid) and Single Super Phosphate. The real calamity occurred when a sister concern, Silver chemicals (Respondents No. 5), commenced production of ‘H’ acid in a plant located within the same complex. ‘H’ acid was meant for export exclusively. Its manufacture gives rise to enormous quantities of highly toxic effluents – in particular, iron-based and gypsum-based sludge – Which if not properly treated, pose grave threat to mother Earth. It poisons the earth, the water and everything that comes in contact with it. Jyoti Chemicals (Respondent No. 8) is another unit established to produce ‘H’ acid, besides some other chemicals. Respondents Nos. 6 and 7 were established to produce fertilizers and a few other products.
3. All the units/factories of Respondents Nos. 4 to 8 are situated in the same complex and are controlled by the same group of individuals. All the units are what may be called “chemical industries”. The complex is located within the limits of Bichhri village.
4. Because of the pernicious wastes emerging from the production of ‘H’ acid, its manufacture is stated to have been banned in the western countries. But the need of ‘H’ acid continues in the West. That need is catered to by the industries like the Silver Chemicals and Jyoti Chemicals in this part of the world. (A few other units producing ‘H’ acid have been established in Gujarat, as would be evident from the decision of the Gujarat High court in Pravinbhai Jashbhai v. State of Gujarat, (1995) 2 Guj LR 1210. a decision rendered by one of us, B. N. Kirpal, J. as the chief Justice of that Court, J. Silver Chemicals is stated to have produced 375 MT of ‘H’ acid. The quantity of ‘H’ acid produced by Jyoti Chemicals is not known. It says that it produced only 20 MT., as trial production, and no more. Whatever quantity these two units may have produced, it has given birth to about 2400-2500 MT of highly toxic sludge (iron-based sludge and gypsum based sludge) besides other pollutants. Since the toxic untreated waste waters were allowed to flow out freely and because the untreated toxic sludge was thrown in the open in land around the complex, the toxic substances have percolated deep into the bowels of the earth polluting the aquifers and the sub-terranean supply of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, the main stay of the villagers. The resulting misery to the villagers needs no emphasis. It spread disease, death and disaster in the village and the surrounding areas. This sudden degradation of earth and water had an echo in Parliament too. An Hon’ble Minister said, action was being taken, but nothing meaningful was done on the spot. The villagers then rose in virtual revolt leading to the imposition of Section 144, Cr. P. C. by the District Magistrate in the area and the closure of Silver Chemicals in January, 1989. It is averred by the respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped manufacturing ‘H’ acid since January, 1989 and are closed. We may assume it to be so. Yet the consequences of their action remain – the sludge, the long-lasting damage to earth, to underground water, to human beings, to cattle and the village economy. It is with these consequences that we are to content with in this writ petition.
5. The present social action litigation was initiated in August, 1989 complaining precisely of the above situation and requesting for appropriate remedial action. To the writ petition, the petitioner enclosed a number of photographs illustrating the enormous damage done to water, cattle, plants and to the area in general. A good amount of technical data and other material was also produced supporting the averments in the writ petition.
COUNTER-AFFIDAVITS OF THE RESPOSNDENTS:
6. On notice being given, counter-affidavits have been filed by the Government of India, Government of Rajasthan, Rajasthan Pollution Control Board (R.P.C.B.) and Respondents Nos. 4 to 8. Since the earliest counter-affidavit in point of time is that of R.P.C. B we shall refer to it in the first instance. It was filed on October 26, 1989. The following are the averments:
(a) Re.: Hindustan Agro Chemicals Limited [R-4]: The unit obtained ‘No-Objection Certificate’ from the P.C.B. for manufacturing sulphuric acid and alumina sulphate. The Board granted clearance subject to certain conditions. Later ‘No-Objection Certificate’ was granted under the Water [Prevention and Control of Pollution] Act, 1974 [Water Act] and Air (Prevention and Control of Pollution) Act, 1981 [Air Act], again subject to certain conditions. However, this unit changed its product without clearance form the Board. Instead of sulphuric acid, it started manufacturing Oleum and Single Super Phosphate [S.S.P]. Accordingly, consent was refused to the unit on February 16, 1987. Directions were also issued to close down the unit.
(b) Re.: Silver Chemicals [R-5]: This unit was promoted by the fourth respondent without obtaining ‘No-Objection Certificate’ from the Board for the manufacture of ‘H’ acid. The waste water generated from the manufacture of ‘H’ acid is highly acidic and contains very high concentration of dissolved solids along with several dangerous pollutants. This unit was commissioned in February, 1988 without obtaining the prior consent of the Board and accordingly notice of closure was served on April 30. 1988. On May 12, 1988, the unit applied for consent under Water and Air Acts which was refused. The Government was requested to issue directions for cutting off the electricity and water to this unit but no action was taken by the Government. The unit was found closed on the date of inspection, viz., October 2, 1989.
(c) Re.: Rajasthan Multi Fertilizers [R-6]: This unit was installed without obtaining prior ‘No-Objection Certificate’ from the Board and without even applying for consent under Water and Air Acts. Notice was served on this unit on February 20, 1989. In reply whereto, the Board was informed that the unit was closed since last three years and that electricity has also been cut of since February 12, 1988.
(d) Re.: Phosphates India [R-7]: This unit was also established without obtaining prior ‘No-Objection Certificate’ from the Board nor did it apply for consent under the Water and Air Acts. When notice dated February 20, 1989 was served upon this unit, the Management replied that this unit was closed for a long time.
(e) Re.: Jyoti Chemicals [R-8] : This unit applied for ‘No-Objection Certificate’ for producing ferric alum. ‘No-Objection Certificate’ was issued imposing various conditions on April 8, 1988. The ‘No-Objection Certificate’ was withdrawn on May 30, 1988 on account of non-compliance with its conditions. The consent applied for under Water and Air Acts by this unit was also refused. Subsequently, on February 9, 1989, the unit applied for fresh consent for manufacturing ‘H’ acid. The consent was refused on May 30. 1989. The Board has been keeping an eye upon this unit to ensure that it does not start the manufacture of ‘H’ acid. On October 2, 1989 when the unit was inspected, it was found closed.
7. The Board submitted further [in its counter-affidavit] that the sludge lying in the open in the premises of respondents Nos. 4 to 8 ought to be disposed off in accordance with the provisions contained in the Hazardous Wastes (Management and Handling) Rules, 1989 framed under Environment (Protection) Act. According to the Board the responsibility for creating the said hazardous situation was squarely that of Respondents Nos. 4 to 8, the Board enclosed several documents to its counter in support of the averments contained therein.