8. The Government of Rajasthan filed its counter-affidavit on January 20, 1990. It made a curious statement in Para 3 to the following effect : “(T)hat the State Government is now aware of the pollution of underground water being caused by liquid effluents from the firms arrayed as respondents Nos. 4 to 8 in the writ petition. Therefore, the State Government has initiated action through the Pollution Control Board to check further spread of pollution.” The State Government stated that the water in certain wells in Bichhri village and some other surrounding villages has become unfit for drinking by human beings and cattle, though in some other wells, the water remains unaffected.
9. The Ministry of Environment and Forests, Government of India filed its counter on February 8, 1990. In their counter, the Government of India stated that Silver chemicals were merely granted a Letter of Intent but it never applied for conversion of the letter of intent into industrial license. Commencing production before obtaining industrial license is an offence under Industries [Development and Regulation] Act, 1951. So far as Jyoti Chemicals is concerned, it is stated that it has not approached the Government at any time even for a Letter of Intent. The Government of India stated that in June, 1989, a study of the situation in Bichhri village and some other surrounding villages was conducted by the Centre for Science and Environment. A copy of their report is enclosed to the counter. The report states the consequences emanating from the production of ‘H’ acid and the manner in which the resulting wastes were dealt with by respondents Nos. 4 to 8 thus:
“The effluents are very difficult to treat as many of the pollutants present are refractory in nature. Setting up such highly polluting industry in a critical ground water area was essentially ill-conceived. The effluents seriously polluted the nearby drain and overflowed into Udaisagar main canal, severely corroding its cement-concrete lined bed and banks. The polluted waters also seriously degraded some agricultural land and damaged standing crops. On being ordered to contain the effluents, the industry installed an unlined holding pond within its premises and resorted to spraying the effluent on the nearby hill-slope. This only resulted in extensive seepage and percolation of the effluents into ground water and their spread down the aquifer. Currently about 60 wells appear to have been significantly polluted but every week a few new wells, down the aquifer start showing signs of pollution. This has created serious problems for water supply for domestic purposes, cattle watering, crop irrigation and other beneficial uses, and it has also caused human illness and even death, degradation of land and damage to fruit, tress and other vegetation. There are serious apprehensions that the pollution and its harmful effects will spread further after the onset of the monsoon as the water percolating form the higher parts of the basin moves down carrying the pollutants lying on the slopes in the holding pond and those already underground.”
10. Each of the respondents Nos. 4 to 8 filed separate counter-affidavits. All the affidavits filed on behalf of these respondents are sworn-to by Lt. Gen. M.L. Yadava, who described himself as the President of each of these units. In the counter-affidavit filed on behalf of the fourth respondent, it is stated that it is in no way responsible for the situation complained of. It is engaged in the manufacture of sulphuric acid and had commenced its operations on January 6, 1987. It has been granted ‘No-Objection Certificates’ from time to time. The consent obtained from R.P.C.B. is valid up to August 15, 1988. Application for extension of consent has already been filed. This counter-affidavit was filed on January 18, 1990.
11. In the counter-affidavit filed on behalf of the fifth respondent [Silver Chemicals], it is stated that the manufacture of ‘H’ acid which was commenced in February, 1988 has been completely stopped after January, 1989. The respondent is fully conscious of the need to conserve and protect environment and is prepared fully to cooperate in that behalf. It is ready to comply with any stipulations or directions that may be made for the purpose. It, however, submitted that the real culprit is Hindustan Zinc Limited. The Archaeological Department of the Government of Rajasthan has issued environmental clearance for its unit [rather surprising statement]. ‘No-Objection Certificates’ had also been issued by the Executive Engineer [Irrigation], Udaipur Division and the Wild Life warden. So far as the requirement of ‘consent’ under Water and Air Acts is concerned, it merely stated that it had applied for it. Its closure in January, 1989 was on account of promulgation of an order under Section 144 Cr. P. C. by the District Magistrate in view of wide-spread agitation by the villagers against its functioning.
12. In the counter-affidavit filed on behalf of the sixth respondent [Rajasthan Multi Fertilizers], it is stated that it commenced production on March 14, 1982 and closed down in December, 1985. Electrical connection to it was disconnected on February 13, 1988. It was submitted that since it is a small-scale industry, no consent was asked for from anyone. It denied that it was causing any pollution, either ground, air or water.
13. In the counter-affidavit filed on behalf of the seventh respondent [Phosphates India], it is stated that this unit commenced production on May 15, 1988 but was closed on and with effect from September 1, 1988 for want of support from the Central Government in the form of subsidies. It submitted that it has merged with the fourth respondent in 1987-88.
14. In the counter-affidavit filed on behalf of the eighth respondent [Jyoti Chemicals], it is stated that it has no electrical connection that it had commenced production in April 1987 and closed down completely in January, 1989. It is stated that the unit produced ‘H’ acid to an extent of 20 mt. as a trial measure for one month with the permission of the Industries Department. It is no longer manufacturing ‘H’ acid and, therefore, is not responsible for causing any pollution. It is further submitted that it is a small-scale industry and was registered with the District Industry Centre, Udaipur for the manufacture of ferric alum and ‘H’ acid. It began its operation simultaneously with the fifth respondent, Silver Chemicals, and several of the clearances are common to both, as both of them are located together. The trial production of ‘H’ acid, it is stated, took place in January, 1987.
15. Hindustan Zinc Limited was imploded as the ninth respondent at the instance of respondents Nos. 4 to 8. It has filed a counter-affidavit denying that it is responsible in any manner for causing any pollution in Bichhri village or the surrounding areas. According to it, its plants are situated downstream, towards north of Bichhri village. We do not think it necessary to refer to this affidavit in any detail inasmuch as we are not concerned, in this writ petition, with the pollution, if any, caused by the ninth respondent in other villages but only with the pollution caused by respondents Nos. 4 to 8 in Bichhri or surrounding villages.
ORDER PASSED AND STEPS TAKEN DURING THE PERIOD 1989-1992.
16. The first considered Order made, after hearing the parties, by this Court is of December 11, 1989. Under this Order, the Court requested the National Environmental Engineering Research Institute [NEERI] to study the situation in and around Bichhri village and submit their report “as to the choice and scale of the available remedial alternatives”. NEERI was requested to suggest both short-term and long-term measures required to combat the hazard already caused. Directions were also made for supply of drinking water to affected villages by the State of Rajasthan. The R.P.C.B. was directed to make available to the court the report it had prepared concerning the situation in Bichhri village.
17. On the next date of hearing, i.e., March 5, 1990, the Court took note of the statements made on behalf of respondents Nos. 4 to 8 that they have completely stopped the manufacture of ‘H’ acid in their plants and that they did not propose to resume its manufacture. The Court also took note of the petitioner’s statement that though the manufacture of ‘H’ acid may have been stopped, a large quantity of highly dangerous effluent waste/sludge has accumulated in the area and that unless properly treated, stored and removed, it constitutes a serious danger to the environment. Directions were given to the R.P.C.B. to arrange for its transportation, treatment and safe storage according to the technically accepted procedures for disposal of chemical wastes of that kind. All reasonable expenses for the said operation were to be borne by respondents Nos. 4 to 8 [hereinafter referred to in this judgement as the “respondents”]. So far as the polluted water in the wells was concerned, the court noted the offer made by the learned counsel for the respondents that they will themselves undertake the de-watering of the wells. The R.P.C.B. directed to inspect and indicate the number and location of the wells to be de-watered.
18. The matter was next taken up on April 4. 1990. It was brought to the notice of the Court that no meaningful steps were taken for removing the sludge as directed by this Court in its Order dated March 5, 1990. Since the monsoon was about to set in, which would have further damaged the earth and water in the area, the Court directed the respondents to immediately remove the sludge from the open spaces where it was lying and store it in safe places to avoid the risk of seepage of toxic substances into the soil during the rainy season. The respondents were directed to complete the takes within five weeks therefrom.
19. It is not really necessary to refer to the contents of the various Orders passed in 1990 and 1991, i.e., subsequent to the Order dated April 4, 1990 for the present purposes. Suffice it to say that the respondents did not comply with the direction to store the sludge in safe places. The de-watering of wells did not prove possible. There was good amount of bickering between the respondents on one side and the R.P.C.B. and the Ministry of Environment and Forests on the other. They blamed each other for lack of progress in the matter of removal of sludge. Meanwhile, years rolled by and the hazard continued to rise. NEERI submitted an interim report. [We are, however, not referring to the contents of this interim report inasmuch as we would be referring to the contents of the final report presently after referring to a few more relevant orders of this Court.]
20. On February 17, 1992, this Court passed a fairly elaborate order observing that respondents Nos. 5 to 8 are responsible for discharging the hazardous industrial wastes; that the manufacture of ‘H’ acid has given rise to huge quantities of iron sludge and gypsum sludge – approximately 2268 MT of gypsum-based sludge and about 189mt. of iron-based sludge; that while the respondents blamed respondent No. 9 as the main culprit, respondent No. 9 denied any responsibility therefore. The immediate concern, said the Court, was the appropriate remedial action. The report of the R.P.C.B. presented a disturbing picture. It stated that the respondents have deliberately spread the hazardous material/sludge all over the place which has only heightened the problem of its removal and that they have failed to carry out the Order of this Court dated April 4, 1990. Accordingly, the Court directed the Ministry of Environment and Forests, Government of India to depute its experts immediately to inspect the area to ascertain the existence and extent of gypsum-based and iron-based sludge, to suggest the handling and disposal procedures and to prescribe a package for its transportation and safe storage. The cost of such storage and transportation was to be recovered from the respondents.
21. Pursuant to the above Order, a team of experts visited the area and submitted report along with an affidavit dated March 30, 1992. The report presented a highly disturbing picture. It stated that the sludge has found inside a shed and also at four places outside the shed but within the premises of the complex belonging to the respondents. It stated further that sludge has been mixed with soil and at many places it is covered with earth. A good amount of sludge was said to be lying exposed to sun and rain. The report stated: “Above all, the extent of pollution in the ground water seems to be very great and the entire aquifer may be affected due to the pollution caused by the industry. The organic content of the sludge needs to be analyzed to assess the percolation property of the contents from the sludge. It is also possible that the iron content in the sludge may be very high which may cause the reddish coloration. As the mother liquor produced during the process (with pH-1) was highly acidic in nature and was indiscriminately discharged on land by the unit, it is possible that this might have eroded soil and caused the extensive damage. It is also possible that the organic contents of the mother liquor would have gone into soil with water together with the reddish colour.” The report also suggested the mode of disposal of sludge and measures for re-conditioning the soil.
22. In view of the above report, the Court made an order on April, 6, 1992 for entombing the sludge under the supervision of the officers of the Ministry of Environment and Forests, Government of India. Regarding revamping of the soil, the Court observed that for this purpose, it might become necessary to stop or suspend the operation of all the units of the respondent but that the Court said, requires to be examined further.
23. The work of entombment of sludge again faced several difficulties. While the respondents blamed the Government officers for the delay, the Government officials blamed the said respondents of non-co-operation. Several Orders were passed by this Court in that behalf and ultimately, the work commenced.
ORDERS PASSED IN 1993, FILING OF WRIT PETITION (C) NO. 76 OF 1994 BY RESPONDENT NO. 4 AND THE ORDERS PASSED THEREON:
24. With a view to find out the connection between the wastes and sludge resulting from the production of ‘H’ acid and the pollution in the underground water, the Court directed on 20th August, 1993 that samples should be taken of the entombed sludge and also of the water from the affected wells and sent for analysis. Environment experts of the Ministry of Environment and Forests were asked to find out whether the pollution in the well water was on account of the said sludge or not. Accordingly, analysis was conducted and the experts submitted the report on November 1, 1993. Under the heading “Conclusion”, the report stated:
5.1 On the basis of the observations and analysis results it is concluded beyond doubt that the sludge inside the entombed pit is the contaminated one as evident from the number of parameters analyzed.
5.2 The groundwater is also contaminated due to discharge of H-acid plant effluent as well as H-acid sludge/contaminated soil leakages as shown in the photographs and also supported by the results. The analysis result revealed good correlation between the colour of well water and H-acid content in it. The analysis results show high degree of impurities in sludge/soil and also in well water which is a clear indication of contamination of soil and groundwater due to disposal of H-acid waste.”
The report, which is based upon their inspection of the area in September, 1993 revealed many other alarming features. It represents a commentary on the attitude and actions of the respondents. In Para-2, under the heading “Site Observations & Collection of Sludge/Contaminated Soil Samples”, the following facts are stated:
“2.1. The Central team, during inspection of the premises of M/s. HACL, observed that H-acid sludge (iron/gypsum) and contaminated soil are still lying at different places, as shown in Fig. i. within the industrial premises (Photograph 1) which are the leftovers. The area, where the solar evaporation pond was existing with H-acid sludge dumped here and there was observed to have been levelled with borrowed soil (Photograph 2). It was difficult to ascertain whether the sludge had been removed before filling. However, there are visual evidences of contaminated soil in the area.
2.2. As reported by the Rajasthan Pollution Control Board (RPCB) representatives, about 720 tonnes out of the total contaminated soil and sludge scraped from the sludge dump sites is disposed off in six lined entombed pits covered by lime/fly ash mix, brick soling and concrete (Photographs 3 & 4). The remaining scraped sludge and contaminated soil was lying near the entombed pits for want of additional disposal facility. However, during the visit, the leftover sludge and contaminated soil could not be traced at site. Inspection of the surrounding area revealed that a huge heap of foreign soil of 5 meter height (Photograph 5) covering a large area, as also indicated in Fig. 1, was raised on the sloppy ground at the foot hill within the industry premises. The storm water run-off pathway over the area showed indication of the heap. Soil in the area was sampled for analysis.
2.3 M/s. HACL has a number of other industrial units which are operating within the same premises without valid consents from the Rajasthan Pollution Control Board (RPCB). These plants are sulphuric acid (H2SO4), fertilizer (SSP) and vegetable oil extraction. The effluents of these units are not properly treated and the untreated effluent particularly from the acid plant is passing through the sludge dump area playing havoc (Photograph 7). The final effluent was collected at the outlet of the factory premises during operation of these units, at the time of groundwater monitoring in September 1993, by the RBPC. Its quality was observed to be highly acidic (pH: 1.08, Conductivity: 37,100 mg/1,804: 21,000 mg/1, Fe : 392 mg/1, COD : 167 mg/1) which was also revealed in the earlier visits of the Central teams. However, these units were not in operation during the present visit.”
Under Para 4.2.1. The report stated inter alia:
“The sludge samples from the surroundings of the (presently non-existent) solar evaporation and the contaminated soil due to seepage from the newly raised dumpsite also exhibited very high values of the above mentioned parameters. This revealed that the contaminated soil is buried under the new dump found by the team.”
25. So much for the waste disposal by the respondents and their continuing good conduct! To the same effect is the report of the R.P.C.B. which is dated October 30, 1993.
26. In view of the aforesaid reports, all of which unanimously point out the consequence of the ‘H’ acid production the manner in which the highly corrosive waste water (mother liquor) and the sludge resulting from the production of ‘H’ acid was disposed of and the continuing discharge of highly toxic effluents by the remaining units even in the year 1993, the authorities (R.P.C.B.) passed orders closing down, in exercise of their powers under Section 33A of the Water Act, the operation of the Sulphuric Acid Plant and the solvent extraction plant including oil refinery of the fourth respondent with immediate effect. Orders were also passed directing disconnection of electricity supply to the said plants. The fourth respondent filed Writ Petition (C) No. 76 of 1994 in this Court, under Article 32 of the Constitution, questioning the said orders in January, 1994. The main grievance in this writ petition was that without even waiting for the petitioner’s [Hindustan Agro Chemicals Limited] reply to this show-cause notice, orders of closure and disconnection of electricity supply were passed and that this was done by the R.P.C.B. with a mala fide intent to cause loss to the industry. It was also submitted that sudden closure of its plants is likely to result in disaster and, may be, an explosion and that this consideration was not taken into account while ordering the closure. In its order dated March 7. 1994, this court found some justification in the contention of the industry that the various counter-affidavits filed by the R.P.C.B. are self-contradictory. The Board was directed to adopt a constructive attitude in the matter. By another order dated March 18, 1994, the R.P.C.B. was directed to examine the issue of grant of permission to restart the industry or to permit any interim arrangement in that behalf. On April 8, 1994, a ‘consent’ order was passed whereunder the industry was directed to deposit a sum of Rupees sixty thousand with R.P.C.B. before April 11, 1994 and the R.P.C.B. was directed to carry on the construction work of storage tank for storing and retaining ten days effluents from the Sulphuric Acid Plant. The construction of temporary tank was supposed to be an interim measure pending the construction of an E.T.P. on permanent basis. The Order dated April 28, 1994 noted the report of the R.P.C.B. stating that the construction of temporary tank was completed on April 26, 1994 under its supervision. The industry was directed to comply with such other requirements as may be pointed out by R.P.C.B. for prevention and control of pollution and undertake any works required in that behalf forthwith. Thereafter, the matter went into slumber until October 13, 1995.
27. At this juncture, it would be appropriate to refer to the report submitted by NEERI on the subject of “Restoration of Environmental Quality of the affected area surrounding village Bichhri due to past Waste Disposal Activities”. This report was submitted in April, 1994 and it states that it is based upon the study conducted by it during the period November, 1992 to February, 1994. Having regard to its technical competence and reputation as an expert body on the subject, we may be permitted to refer to its report at some length:
28. At page 7, the report mentions the industrial wastes emerging from the manufacture of ‘H’ acid. It reads:
“Solid wastes generated from H-acid manufacturing process are:
Gypsum sludge produced during the neutralization of acidic solution with lime after nitration stage (around 6 tonnes/tonne of H-acid manufactured).
Iron sludge produced during the reduction stage (around 0.5 tonnes/tonne of H-acid manufactured).
Gypsum sludge contains mostly calcium sulphate along with sodium salts and organics. Iron sulphate constitutes unreacted iron powder, besides ferric salts and organics.
It is estimated that, for each tonne of H-acid manufactured, about 20 m3 of highly corrosive wastewater was generated as mother liquor, besides the generation of around 2.0 m3 of wash water. The mother liquor is characterized by low pH (around 2.0) and high concentration of total dissolved solids (80- 280 g/L). High COD of the wastewater (90 g/L) could be attributed to organics formed during various stages of manufacture. These include naphthalene trisulphonic acid, nitro naphthalene sulphuric acid, Koch acid and H-acid, besides several other intermediates.”
29. At pages 8 and 9, the report describes the manner in which the sludge and other industrial wastes were disposed off by the respondents. It states inter alia:
“The total quantities of wastes water and that of sludge generated were around 8250 m3 and 2440 tonnes respectively for production of 375 tonnes by M/s. Silver Chemicals Ltd. and M/s. Jyoti Chemicals Ltd ……
* Majority of sludge brought back from disposal sites located outside the plants was transferred inside a covered shed.
* The sludge lying in the plant premises was entombed in the underground pit by RPCB as per the directions of the Hon’ble Supreme Court. It may be mentioned that only 720 MT of Sludge out of the estimated quantity of 2440 MT could be entombed as the capacity of the underground tanks provided by the industry for the purpose was only to that extent.
* Remaining sludge and sludge mixed soil were, however, present in the plant premises as these could not be transferred into underground tanks. It has also been observed that only sludge above the soil was removed from the six sites and transferred to the plant site. Subsurface soil of these sites appears to have been contaminated as the soil has reddish colour akin to that of the sludge.
*A fertilizer plant (single super phosphate), a sulphuric acid plant and an oil extraction and oil refining plant were in operation in the same premises where H-acid was earlier manufactured. The acidic wastewater (around pH 1.0) presently generated from these units was flowing over the abandoned dumpsite. This leaches the sludge mixed soil from the abandoned dumpsite and the contaminated water flows by gravity towards east and finds its way into a nallah flowing through the compound and conveys the contaminated water to an irrigation canal which originates from Udaisagar lake (Pate 1.4)”.