30. At page 10, the report mentions the six dump sites outside the ‘H’ acid plant premises where the sludge was lying in the open. At pages 26 and 27, the report states on the basis of V.E.S. investigations that while certain wells were found contaminated others were not. At page 96, the report states thus:
The field surveys in contaminated fields in Zones I and II showed that no crops were coming in the field particularly in low lying areas. On some elevated areas, crops like jowar, maize were growing; however the growth and yield were very poor.
Further it was also observed that even trees like eucalyptus planted in contaminated fields show leaf burning and stunted growth. Many old trees which were badly affected due to contamination are still growing under stress conditions as a result of soil contamination.
The top soils at the old dump sites outside the plant premises are still contaminated and require decontamination before the land is used for other purposes.
It was observed that even after the operation of hauling the sludge back to the industry premises, some sludge mixed soil was still lying in the premises of a primary school (Table 1.1), which needs decontamination.”
31. Chapter-6 of the report mentions the remedial measures. Para 6.1, titled “Introduction” states:
“As could be seen from the data reported in Chapters 4 and 5, the ground water and soils within 2 km from the plant have been contaminated. After critically scrutinizing the data, it was concluded that there is an urgent need to work out a decontamination strategy for the affected area. This strategy includes the decontamination of the soil, contaminated ground water and abandoned dump sites. This Chapter details the remedial measures that can be considered for implementation to restore the environmental quality of the affected area.”
32. The Chapter then sets out the various remedial measures, including land treatment, soil washing, re-vegetation, control over the flow of the contaminated water to adjoining lands through canals, leaching of soluble salts, design of farm to development Agro forestry and/or forestry plantation with salt tolerant crops/plants and ground water decontamination. Inter alia, the report states:
“The entire contaminated area comprising of 350 ha of contaminated land and six abandoned dump sites outside the industrial premises has been found to be ecologically fragile due to reckless past disposal activities practiced by M/s. Sliver Chemicals Ltd, and M/s. Jyoti Chemical Ltd. Accordingly it is suggested that the whole of the contaminated area be developed as a green belt at the expense of M/s. Hindustan Agrochemical Ltd, during the monsoon of 1994.”
33. Under para 6.3.2, the report suggests “Decontamination Alternatives for Groundwater” including Bioremediation, Degradation of H-Acid by Azotobacter Vinelandi, Isolation of Bacterial Population from H-acid Contaminated Soil and several other methods.
34. Under para 6,4,2, the report mentions the several decontamination alternatives including containment of contaminated soil, surface control, ground water control, leachate collection and treatment, gas migration control and direct waste treatment.
35. At pages 157 and 158, the report mentions the continuing discharge of effluents in an illegal and dangerous manner. It reports:
“It was also observed by NEERI’s team during the current study that the industry has not provided adequate effluent treatment facilities and the waste waters (PH<1.5) from the existing plants (Sulphuric acid, Fertilizer, and Oil extraction) are being discharged, without treatment, on land within the plant premises. This indiscriminate and wilful disposal activity is further aggravating the contamination problem in the area. Acidic effluent leaches the pollutants from the dumped sludge and the contaminated soil and facilitates their penetration through the ground and thereby increasing the concentration of sulphates and dissolved solids in groundwater. What is most serious is the fact that the industry produced chlorosulfonic acid for a few months during late 1992 which is a hazardous and toxic substance as per MEF Notification titled Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 and even floated public shares for the manufactures of this obnoxious chemical. The production was however ceased due to the intervention of the Rajasthan Pollution Control Board in December 1992 as the industry was operating without obtaining site clearance. No objection Certificate (NOC/Consent from the concerned appropriate regularity (regulatory?) authorities and without providing for any pollution control measures. It is therefore, essential for M/s. Hindustan Agrochemical Ltd. to comply with these requirements for carrying out the present industrial activities. The abatement of further contamination warrants the closure of all industrial operations till an appropriate effluent treatment plant is installed, and certified by RPCB for its functionality in keeping with the provisions of Water Act.”
36. The Report adds:
“The Industry management in the past (during 1988-89) has shown scant respect for Pollution Control and Environment Protection Acts. Not only this, the management continues industrial activity producing obnoxious waste waters and dumping the same without any treatment, contaminating land and ground water without any concern for ecology and public health. It is necessary that the provisions of relevant legislations are imposed on the industry to avoid environmental damage and harm to public welfare.”
37. We do not think that the above Report requires any emphasis at our hands. It speaks for itself and it speaks volumes of the high regards the respondents have for law!
38. At Pages 179 onwards, the Report refers to the damage to the crops and the land and to the psychological and mental torture inflicted upon the villagers by the respondents and suggests that the principles of ‘Polluter Pays’ should be applied in this case inasmuch as “the incident involved deliberate release of untreated acidic process wastewater and negligent handling of waste sludge knowing fully well the implication of such acts.” The Report suggests that compensation should be paid under two heads, viz., (a) for the losses due to damage and (b) towards the cost of restoration of environmental quality. It then works out the total cost of restoration of environmental quality at Rs. 3738.5 Lakhs - i.e., Rs. 37,385 crores.
39. Para 7.4 states the conclusions flowing from the material in Chapter-6 thus:
“The cost of damage to be disbursed to the affected villagers is estimated at Rs. 342.8 lakhs and remediation of impacted well waters and soil at Rs. 3738.5 lakhs. This cost needs to be borne by the management of the industry in keeping with the Polluter Pays principle and the doctrine of Strict/Absolute liability, as applied to Sri Ram Food and Fertilizers Industry in the case of Oleum leak in 1985.”
Report of R.P.C.B Submitted in January, 1996 During the final hearing of these matters:
40. When all these matters were posted before the Court on October 13, 1995, we realized that the matter requires to be heard on a priority basis. Having regard to the voluminous data gathered by this Court and the several Orders passed from time to time, the matter was listed for regular hearing. We heard all the parties at length on 10th, 11th, 16th and 17th January, 1996. We have been taken through the voluminous record. Submissions have also been made on the questions of law arising herein.
41. At the end of the first day of regular hearing, we made an Order calling upon the R.P.C.B to send a team of high officials to the spot and report to us the latest position on the following aspects:
(i) Whether the factories of Silver Chemicals, Rajasthan Multi Fertilizers and Jyoti Chemicals are still working and whether the machinery installed in the said plant still exists? [This information was required to check the statement of the respondents that the said units are lying closed since last several years].
(ii) To report whether the factory or factories of Respondent No. 4, Hindustan Agro-Chemicals Limited, are working and if they are working, what are the products being manufactured by them? The Board was also directed to report whether the seventh respondent, Phosphate India, which was said to have merged with the fourth respondent, is having a separate factory and if so, what is being produced therein?
(iii) The approximate quantity of sludge-whether ‘iron ‘sludge’ or gypsum sludge’-lying in the area. The report was to indicate what quantity was entombed pursuant to the Orders of this Court and whether any further sludges was lying in the area or in the premises of the respondents complex, its approximate quality and the time, effort and cost required to remove the same.
(iv) The Board was also to take samples of the water in wells and tanks in the area and have them analyzed and tell us whether it is fit for drinking by cattle and/or fit for irrigation purposes.
42. Accordingly the R.P.C.B. officials visited the site and have filed a Report dated January 16, 1996 along with an affidavit. The Report discloses the following facts:
(1) The two units, Silver Chemicals, Jyoti Chemicals, do not exist now. There is no machinery. A go down and a Ferric Alum plant have been constructed at the site of the said plant. The Ferric Alum plant was not in operation at the time of inspection though plant and machinery for manufacturing it was found installed therein. Certain old stock of Ferric Alum was also found lying within the plant premises.
(2) Hindustan Agro-Chemicals Limited (R-4) has seven industrial plants, viz., Rajasthan Multi Fertilizers [manufacturing Granulated Single Super Phosphate (G.S.S.P)], a Sulphuric Acid Plant, a Chlorosulphonic Acid Plant, Edible Oil Solvent Extraction Plant, Edible Oil Refinery and a Ferric Alum Plant (known as M/s. Jyoti Chemicals), all of which are located within the same premises. All these seven plants were found not operating on the date of inspection by the R.P.C.B. officials though in many cases the machinery and the other equipment was in place. So far as the sludge still remaining in the area is concerned, the report stated:
“3. Village Bichhri and other adjoining areas were visited by the undersigned officials to know whether gypsum and iron sludge is still lying in the aforesaid area. In area adjoining the irrigation canal, sludge mixed with soil was found on an area of about 3000 sq. ft. The area was covered with foreign soil. Sample of the sludge mixed soil was collected for the perusal of the Hon’ble Court. Entire premises of M/s. Hindustan Agro Chemicals Ltd. were also inspected and sludge mixed with soil was observed in a large area. It was further observed that fresh soil in the varying depth has been spread over in most of the area. In view of the fact that sludge was mixed with the soil and difficult to separate out of the soil it is very difficult to estimate the exact quantity of the sludge required to be removed. Samples of sludge mixed with soil were collected from different part of this area after serving due notice under Environment protection Act, 1986.”
So far as the water in the wells was concerned, the Report mentioned that they took samples from the wells from Bichhri and other surrounding villages, i.e., from thirty two different locations and that water in sixteen locations was found to “contain colour of varying intensities ranging from very dark brown to light pink which apparently shows that these wells/hand pumps are still polluted.”
43. Sri K. N. Bhat, learned counsel for the respondents, however, submitted that the R.P.C.B. officials have throughout been hostile to the respondents and that, therefore, the Reports submitted by them should not be acted upon. He also submitted that respondents have had no opportunity to file objections to the said Report or to produce material to contradict the statements made therein. While taking note of these submissions, we may, however, refer to the letter dated January 13, 1996 written by the fourth respondent to the R.P.C.B. In this letter, the particulars of the stocks remaining in each of its seven plants are mentioned along with the date of the last production in each of those plants. The last dates of production are the following: Sulphuric Acid Plant-November 10, 1993, S.S.P. Plant (Phosphate India) - November 11, 1995, G.S.S.P. Plant (Rajasthan Multi Fertilisers)-July 7, 1995, Solvent Extraction Planted Refinery-December 2, 1993, Jyoti Chemicals-October, 1990 and Chlorosulphonic Acid Plant - September 29, 1995. It is worthy of note that these dates are totally at variance with the dates of closure mentioned in the counter-affidavits filed by these units in 1990-91.
CONTENTIONS OF THE PARTIES :
44. Sri M.C. Mehta, learned counsel appearing for the petitioner, brought to our notice the several Reports, orders and other material on record. He submitted that the abundant material on record clearly establishes the culpability of the respondents for the devastation in village Bichhri and surroundings areas and their responsibility and obligation to properly store the remaining sludge, stop discharge of all untreated effluents by taking necessary measures and defray the total cost required for remedial measures as suggested by NEERI (Rupees forty crores and odd). Learned counsel suggested that in view of the saga of repeated and continuous violation of law and lawful orders on the part of the respondents, they must be closed forthwith. So far as the legal propositions are concerned, the learned counsel relied strongly upon the Constitution Bench decision in M.C. Mehta v. Union of India (Oleum Gas Leak Case), (1987) (1) S.C.C. 395 : (AIR 1987 SC 1086) as well as the recent Order of this Court in Indian Council for Enviro-Legal Action v. Union of India, (1995 (5) SCales 578). Learned counsel also invited our attention to quite a few foreign decisions and text books on the subject of environment. Sri Altaf Ahmed, learned Additional Solicitor General appearing for the Union of India, also stressed the need for urgent appropriate directions to mitigate and remedy the situation on the spot in the light of the expert Reports including the one made by the central team of experts.
45. The learned counsel for the State of Rajasthan, Sri Aruneshwar Gupta, expressed the readiness of the State Government to carry out and enforce such orders as this Court may think fit and proper in the circumstances.
46. Sri K.B. Rohtagi, learned counsel for the R.P.C.B., invited our attention to the various Orders passed, action taken, cases instituted and Reports submitted by the Board in this matter. He submitted that until recently the Board had no power to close down any industry for violation of environmental laws and that after conferment of such power, they did pass orders of closure. He denied the allegations of mala fides or hostile intent on the part of the Board towards the respondents. Learned counsel lamented that despite its best efforts; the Board has not yet been successful in eradicating the pollution in the area and hence asked for stringent orders for remedying the appalling conditions in the village due to the acts of the respondents.
47. Sri K. N. Bhat, learned counsel for the respondents, made the following submissions:
(1) The respondents are private corporate bodies. They are not 'State' within the meaning of Article 32 of the Constitution. A writ petition under Article 32 of the Constitution, therefore, does not lie against them.
(2) The R.P.C.B. has been adopting a hostile attitude towards these respondents from the very beginning. The Reports submitted by it or obtained by it are, therefore, suspect. The respondents had no opportunity to test the veracity of the said Reports. If the matter had been fought out in a properly constituted suit, the respondents would have had an opportunity to cross-examine the experts to establish that their Reports are defective and cannot be relied upon.
(3) Long before the respondents came into existence, Hindustan Zinc Limited was already in existence close to Bichhri village and has been discharging toxic untreated effluents in an unregulated manner. This had affected the water in the wells, streams and aquifers. This is borne out by the several Report made long prior to 1987. Blaming the respondents for the said pollution is incorrect as a fact and unjustified.
(4) The respondents have been co-operating with this Court in all matters and carrying out its directions faithfully. The Report of the R.P.C.B. dated November 13, 1992 shows that the work of entombment of the sludge was almost over. The Report states that the entire sludge would be stored in the prescribed manner within the next two days. In view of this report, the subsequent Report of the Central team, R.P.C.B. and NEERI cannot be accepted or relied upon. There are about 70 industries in India manufacturing 'H' acid. Only the units of the respondents have been picked up by the Central and State authorities while taking no action against the other units. Even in the matter of disposal of sludge, the directions given for its disposal in the case of other units are not as stringent as have been prescribed in the case of respondents. The decision of the Gujarat High Court in Pravinbhai Jashbhai Patel (1995 (2) Guj LR 1210) shows that the method of disposal prescribed there is different and less elaborate than the one prescribed in this case.
(5) The Report submitted by the various so-called expert committees that sludge is still lying around within and outside the respondent’s complex and/or that the toxic wastes from the Sulphuric Acid Plant are flowing through and leaching the sludge and creating a highly dangerous situation is untrue and incorrect. The R.P.C.B. itself had constructed a temporary E.T.P. for the Sulphuric Acid Plant pursuant to the Orders of this Court made in Writ Petition (C) No. 76 of 1994. Subsequently a permanent E.T.P. has also been constructed. There is no question of untreated toxic discharges from this plant leaching with sludge. There is no sludge and there is no toxic discharge from the Sulphuric Acid Plant.
(6) The case put forward by the R.P.C.B. that the respondents units do not have the requisite permits/consents required by the Water Act, Air Act and the Environment (Protection) Act is again unsustainable in law and incorrect as a fact. The respondents units were established before the amendment of Section 25 of the Water Act and, therefore, did not require any prior consent for their establishment.
(7) The proper solution to the present problem lies in ordering a comprehensive judicial enquiry by a sitting Judge of the High Court to find out the causes of pollution in this village and also to recommend remedial measures and to estimate the loss suffered by the public as well as by the respondents. While the respondents are prepared to bear the cost of repairing the damage, if any, caused by them, the R.P.C.B. and other authorities should be made to compensate for the huge losses suffered by the respondents on account of their illegal and obstructionist policy adopted towards them.
(8) The decision in Oleum Gas Leak Case (AIR 1987 SC 1086) has been explained in the opinion of Ranganath Misra, CJ., in the decision in Carbide Corporation v. Union of India (1991) 4 SCC 584: (AIR 1992 SC 248). The law laid down in Oleum Gas Leak Case is at variance with the established legal position in other Commonwealth countries.
48. Sri Bhat suggested that in the larger interest of environment, industry and public, this Court may direct the Government of India to constitute, by proper legislation, environment courts all over the country - which courts alone should be empowered to deal with such cases, to give appropriate directions including orders of closure of industries wherever necessary, to make necessary technical and scientific investigations, to suggest remedial measures and to oversee their implementation. Proceedings by way of a writ in this Court under Article 32 or in the High Court under Article 226, the learned counsel submitted, are not appropriate to deal with such matters, involve as they do several disputed questions of fact and technical issues.
49. Before we proceed to deal with the submissions of the learned counsel, it would be appropriate to notice the relevant provisions of law.
Relevant statutory PROVISIONS:
50. Article 48A is one of the Directive Principles of State Policy. It says that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A sets out the fundamental duties of the citizens. One of them is "(g) to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures ......".
51. The problem of increasing pollution of rivers and streams in the country - says the Statement of Objects and Reasons appended to the Bill which became the Water (Prevention and Control of Pollution) Act, 1974 - attracted the attention of the State Legislatures and the Parliament. They realised the urgency of ensuring that domestic and industrial effluents are not allowed to be discharged into water courses without adequate treatment and that pollution of rivers and streams was causing damage to the country's economy. A committee was set up in 1962 to draw a draft enactment for prevention of water pollution. The issue was also considered by the Central Council of Local Self-Government in September, 1963. The Council suggested the desirability of having a single enactment for the purpose. A draft Bill was prepared and sent to various States. Several expert committees also made their recommendations meanwhile. Since an enactment on the subject was relatable to Entry 17 read with Entry 6 of List II in the Seventh Schedule to the Constitution - and, therefore, within the exclusive domain of the States the State Legislatures of Gujarat, Kerala, Haryana and Mysore passed resolutions as contemplated by Article 252 of the Constitution enabling the Parliament to make a law on the subject. On that basis, the Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974. (The State of Rajasthan too passed the requisite resolution). Section 24 (1) of the Water Act provides that "subject to the provisions of this section, (a) no person, shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well....". Section 25 (1), before it was amended by the Act 53 of 1988, provided that "(1) subject to the provisions of this section, no person shall, without the previous consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade into a stream or well or begin to make any new discharge of sewage or trade effluent into a stream or well." As amended by Act 53 of 1988, Section 25 now reads : "25 (1) Subject to the provision of this section, no person shall without the previous consent of the State Board, (a) establish or take any steps to establish any industry, operation or process or any treatment and disposal system or an extension or an addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage'); or (b) bring into use any new or altered outlets for the discharge of sewage or (c) begin to make any new discharge of sewerage" (It is stated that the Rajasthan Assembly passed resolution under Article 252 of the Constitution adopting the said amendment Act vide Gazette Notification dated May 9, 1990.) Section 33 empowers the Pollution Control Board to apply to the Court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class, to restrain any person causing pollution if the said pollution is likely to prejudicially affect water in a stream or a well. Section 33A which has been introduced by Amendment Act 53 of 1988, empowers the Board to order the closure of any industry and to stop the electricity, water and any other service to such industry if it finds such a direction necessary for effective implementation of the provision of the Act. Prior to the said amendment Act, the Pollution Control Board had no such power and the course open to it was to make a recommendation to the Government to pass appropriate orders including closure.