64. The Australian High Court has however, expressed its disinclination to treat the rule in Rylands as an independent head for claiming damages or as a rule rooted in the law governing the law of nuisance in Burnie Port Authority v. General Jones Pvt. Ltd. (1994) 68 Australian Law Journal 331. The respondent, General Jones Limited had stored frozen vegetables in three cold storage rooms in the building owned by the appellant, Burnie Port Authority (Authority). The remaining building remained under the occupation of the Authority. The Authority wanted to extend the building. The extension work was partly done by the Authority itself and partly by an independent contractor (Wildridge and Sinclair Pty. Ltd.). For doing its work, the contractor used a certain insulating material called E.P.S., a highly inflammable substance. On account of negligent handling of E.P.S., there was a fire which inter alia damaged the rooms in which General Jones had stored its vegetables. On an action by General Jones, the Australian High Court held by a majority that the rule in Rylands having attracted many difficulties, uncertainties, qualifications and exceptions, should now be seen, for the purposes of Australian Common Law, as absorbed by the principles of ordinary Negligence. The Court held further that under the rules governing negligence, if a person in control of a premises, introduces a dangerous substance to carry on a dangerous activity, or allows another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. In a case where a person or the property of that other is lawfully in a place outside the premises, the duty of care varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken. Applying the said principle, the Court held that the Authority allowed the independent contractor to introduce or retain a dangerous substance or to engage in a dangerous activity in its premises which substance and activity caused a fire that destroyed the goods of General Jones. The evidence, the Court held, established that the independent contractor's work was a dangerous activity in that it involved real and foreseeable risk of a serious conflagration unless special precautions were taken. In the circumstances, it was held that the Authority owed a non-delegable duty of care to General Jones to ensure that its contractor took reasonable steps to prevent the occurrence of a fire and the breach of that duty attracted liability pursuant to the ordinary principles of negligence for the damage sustained by the respondent.
65. On a consideration of the two lines of thought (one adopted by the English Courts and the other by the Australian High Court), 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. We are convinced that the law stated by this Court in Oleum Gas Leak Case (AIR 1987 SC 1086), is by far the more appropriate one - apart from the fact that it is binding upon us. (We have disagreed with the view that the law stated in the said decision is obiter). According to this rule, 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. In the words of the Constitution Bench, such an activity "can be tolerated only on the conditions 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.
66. Once the law in Oleum Gas Leak Case (AIR 1987 SC 1086) is held to be the law applicable, it follows in the light of our findings recorded hereinbefore, that respondents Nos. 4 to 8 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 the sludge and other pollutants lying in the affected area (by affected area, we mean the area of about 350 ha. indicated in the sketch at page 178 of NEERI Report) and also to defray the cost of the remedial measures required to restore the soil and the underground water sources. Sections 3 and 4 of Environment (Protection) Act confer upon the Central Government the power to give directions of the above nature and to the above effect. Levy of costs required for carrying out remedial measures is implicit in Sections 3 and 4 which are couched in very wide and expansive language. Appropriate directions can be given by this Court to the Central Government to invoke and exercise those powers with such modulations as are called for in the facts and circumstances of this case.
67. The question of liability of the respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz., the "Polluter Pays" Principle.
"The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'polluter pays' principle was promoted by the Organisation for Economic Co-operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on Government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialised society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactorily agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme (1987) O.J.C. 328/1) makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter, and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 120R (2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventive action; the need for environmental damage to be rectified at source; and that the polluter should pay".
("Historic Pollution - Does the Polluter pay?" By Carolyn Shelbourn - Journal of Planning and Environmental law. Aug. 1974 issue)
Thus, according to this principle, the responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 empower the Central Government to give directions and take measures for giving effect to this Principle. In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment (Protection) Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit.
68. The next question is what is the amount required for carrying out the necessary remedial measures to repair the damage and to restore the water and soil to the condition it was in before the respondents commenced their operations. The Report of NEERI has worked out the cost at more than Rupees forty crores. The estimate of cost of remedial measures is, however, not a technical matter within the expertise of NEERI officials. Moreover, the estimate was made in the year 1994. Two years have passed by since then. Situation, if at all must have deteriorated further on account of the presence of - and dispersal of the sludge - in and around the complex of the respondents by them. They have been discharging other toxic effluents from their other plants, as reported by NEERI and the central team. It is but appropriate that an estimate of the cost of remedial measures be made now with notice to the respondents, which amount should be paid to Central Government and/or recovered from them by the Central Government. Other directions are also called for in the light of the facts and circumstances mentioned above.
From the affidavits of the parties, Orders of this Court, technical Reports and other data, referred to above (even keeping aside the latest Report of the R.P.C.B. the following facts emerge :
(I) Silver Chemicals (R-5) and Jyoti Chemicals (R-8) had manufactured about 375MT of 'H' acid during the years 1988-89. This had given rise to about 8250 m3 of waste water and 2440 tonnes of sludge (both iron-based and gypsum-based). The waste water had partly percolated into the earth in and around Bichhri and part of it had flowed out. Out of 2440 tonnes of sludge, about 720 tonnes has been stored in the pits provided by the respondents. The remaining sludge is still there either within the area of the complex of the respondents or outside their complex. With a view to conceal it from the eyes of the inspection teams and other authorities, the respondents have dispersed it all over the area and covered it with earth. In some places, the sludge is lying in mounds. The story of entombing the entire quantity of sludge is untrue.
The units manufacturing 'H' acid - indeed most of the units of the respondents - had started functioning, i.e., started manufacturing various chemicals without obtaining requisite clearances/consents/licences. They did not install any equipment for treatment of highly toxic effluents discharged by them. They continued to function even after and in spite of the closure orders of the R.P.C.B. They did never carry out the Orders of this Court fully, (e.g., entombing the sludge) nor did they fulfil the undertaking given by them to the Court (in the matter of removal of sludge and de-watering of the wells). In spite of repeated Reports of officials and expert bodies, they persisted in their illegal course of action in a brazen manner, which exhibits their contempt for law, for the lawful authorities and the Courts.
(II) That even after the closure of 'H' acid plant, the fourth respondent had not taken adequate measures for treating the highly toxic waste water and other wastes emanating from the Sulphuric Acid Plant. The untreated highly toxic waste water was found - by NEERI as well as the Central team - flowing through the dumps of iron/gypsum sludge creating a highly potent mix. The letter of the fourth respondent dated January 13, 1996, shows that the Sulphuric Acid Plant was working till November 10, 1995. An assertion is made before us that permanent E.T.P. has also been constructed for the Sulphuric Acid Plant in addition to the temporary tank which was constructed under the Orders of this Court. We express no opinion on this assertion, which even if true, is valid only for the period subsequent to April 1994.
(III) The damage caused by the untreated highly toxic wastes resulting from the production of 'H' acid - and the continued discharge of highly toxic effluent from the Sulphuric Acid Plant, flowing through the sludge (Hacid waste) - is indescribable. It has inflicted untold misery upon the villagers and long lasting damage to the soil, to the underground water and to the environment of that area in general. The Report of NEERI contains a sketch, at Page 178, showing the area that has been adversely affected by the production of 'H' acid by the respondents. The area has been divided into three zones on the basis of the extent of contamination. A total area of 350 ha has become seriously contaminated. The water in the wells in that area is not fit for consumption either by human beings or cattle. It has seriously affected the productivity of the land. According to NEERI Report, Rupees forty crores is required for repairing the damage caused to men, land, water and the flora.
(IV) This Court has repeatedly found and has recorded in its Orders that it is respondents who have caused the said damage. The analysis Reports obtained pursuant to the directions of the Court clearly establish that the pollution of the wells is on account of the waste discharged by Respondents Nos. 4 to 8, i,e., production of 'H' acid, the report of the environment experts dated November, 1993 has already been refereed to hereinbefore. Indeed, several orders of this Court referred to supra are also based upon the said finding.
(V) Sections 3 and 5 of the Environment (Protection) Act, 1986, apart from other provisions of Water and Air Acts, empower the Government to make all such directions and take all such measures as are necessary or expedient for protecting and promoting the 'environment', which expression has been defined in very wide and expansive terms in Section 2(a) of the Environment (Protection) Act. This power includes the power to prohibit an activity, close an industry, direct and/or carry out remedial measures, upon the offending industry. The principle "Polluter Pays" has gained almost universal recognition, apart from the fact that it is stated in absolute terms in Oleum Gas Leak Case (AIR 1987 SC 1086). The law declared in the said decision is the law governing this case.
70. Directions: Accordingly, the following directions are made:
1. The Central Government shall determine the amount required for carrying out the remedial measures including the removal of sludge lying in and around the complex of Respondents 4 to 8, in the area affected in village Bichhri and other adjacent villages, on account of the production of 'H' acid and the discharges from the Sulphuric Acid Plant of respondents 4 to 8. Chapters-VI and VII in NEERI report (submitted in 1994) shall be deemed to be the show-cause notice issued by the Central Government proposing the determination of the said amount. Within six weeks from this day, respondents 4 to 8 shall submit their explanation, along with such material as they think appropriate in support of their case, to the Secretary, Ministry of Environment and Forests, Government of India, (M.E.F.). The Secretary shall thereupon determine the amount in consultation with the experts of his Ministry within six weeks of the submission of the explanation by the said respondents. The orders passed by the Secretary, (M.E.F.) shall be communicated to respondents 4 to 8 - and all concerned and shall also be placed before this Court. Subject to the Orders, if any, passed by this Court, the said amount shall represent the amount which respondents 4 to 8 are liable to pay to improve and restore the environment in the area. For the purpose of this proceedings, the secretary, (M.E.F.) and respondents 4 to 8 shall proceed on the assumption that the affected area is 350 ha, as indicated in the sketch at Page 178 of NEERI Report. In case of failure of the said respondents to pay the said amount, the same shall be recovered by the Central Government in accordance with law. The factories plant, machinery and all other immovable assets, of respondents 4 to 8 are attached herewith. The amount so determined and recovered shall be utilised by the M.E.F. for carrying out all necessary remedial measures to restore the soil, water sources and the environment in general of the affected area to its former state.
2. On account of their continuous, persistent and insolent violations of law, their attempts to conceal the sludge, their discharge of toxic effluents from the Sulphuric Acid Plant which was allowed to flow through the sludge, and their non-implementation of the Orders of this Court - all of which are fully borne out by the expert committees Reports and the findings recorded hereinabove - respondents 4 to 8 have earned the dubious distinction of being characterised as "rogue industries." They have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources and their entire environment - all in pursuance of their private profit. They have forfeited all claims for any consideration by this Court. Accordingly, we herewith order the closure of all the plants and factories of respondents 4 to 8 located in Bichhri village. The R.P.C.B. is directed to seal all the factories/units/plants of the said respondents forth with. So far as the Sulphuric Acid Plant is concerned, it will be closed at the end of one week from toady, within which period respondent No. 4 shall wind down its operations so as to avoid risk of any untoward consequences, as asserted by respondent No. 4 in Writ Petition (C) No. 76 of 1994. It is the responsibility of respondent No. 4 to take necessary steps in this behalf. The R.P.C.B. shall seal this unit too at the end of one week from today. The reopening of these plants shall depend upon their compliance with the directions made and obtaining of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can apply for directions in this behalf after such compliance.
3. So far as the claim for damages for the loss suffered by the villagers in the affected area is concerned, it is open to them or any organisation on their behalf to institute suits in the appropriate civil Court. If they file the suit or suits in forma pauperise, the State of Rajasthan shall not oppose their applications for leave to sue in forma pauperise.
4. The Central Government shall consider whether it would not be appropriate, in the light of the experience gained, that chemical industries are treated as a category apart. Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinising 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 area 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 Sections 3 and 5 of the Environment Act. The Central Government shall ensure that the directions given by it are implemented forthwith.
5. The Central Government and the R.P.C.B. shall file quarterly reports before this Court with respect to the progress in the implementation of Directions 1 to 4 aforesaid.
6. The suggestion for establishment of environment Courts is a commendable one. The experience shows that the prosecutions lunched in ordinary criminal Courts under the provisions of the Water Act, Air Act and Environment Act never reach their conclusion either because of the work-load in those Courts or because there is no proper appreciation of the significance of the environment matters on the part of those in charge of conducting of those cases. Moreover, any orders passed by the authorities under Water and Air Acts and the Environment Act are immediately questioned by the industries in Courts. Those proceedings take years and years to reach conclusion. Very often, interim orders are granted meanwhile which effectively disable the authorities from ensuring the implementation of their orders. All these points to the need for creating environment Court which alone should be empowered to deal with all matters, civil and criminal, relating to environment. These Courts should be manned by legally trained persons/judicial officers and should be allowed to adopt summary procedures. This issue, no doubt, requires to be studied and examined in-depth from all angles before taking any action.
7. The Central Government may also consider the advisability of strengthening the environment protection machinery both at the Centre and the States and provide them more teeth. The head of several units and agencies should be made personally accountable for any lapses and/or negligence on the part of their units and agencies. The idea, of an environmental audit by specialist bodies created on a permanent basis with power to inspect, check and take necessary action not only against erring industries but also against erring officers may be considered. The idea of an environmental audit conducted periodically and certified annually, by specialists in the field, duly recognised, can also be considered. The ultimate idea is to integrate and balance the concern for environment with the need for industrialisation and technological progress.
71. Respondents 4 to 8 shall pay a sum of Rupees fifty thousand by way of costs to the petitioner which had to fight this litigation over a period of over six years with its own means. Voluntary bodies, like the petitioner, deserve encouragement wherever their actions are found to be in furtherance of public interest. The said sum shall be deposited in this Court within two weeks from today. It shall be paid over to the petitioner.
72. Writ Petition (C) No. 967 of 1989 is allowed with the above directions with costs as specified hereinabove.
Writ petition (C) No. 76 of 1994:
73. In view of the decision in Writ Petition (C) No. 967 of 1989, the writ petition is dismissed.
Writ Petition (C) No. 94 of 1990:
74. In view of the decision in Writ Petition (C) No. 967 of 1989, no separate Orders are necessary in this petition. The writ petition is accordingly dismissed.
75. No costs.
Writ Petition (C) No. 824 of 1993:
76. In view of the decision in Writ Petition (C) No. 967 of 1989, no separate Orders are necessary in this petition. The writ petition is accordingly dismissed.
77. No costs
Ishwar Singh v. State of Haryana
AIR 1996 Punjab and Haryana 30
Civil Writ Petition No. 7418 of 1994, D/-10-7-1995
R. P. Sethi and S. S. Sudhalkar, JJ.
(A) Constitution of India, Art. 226 – Public interest litigation – Tenability – Question of locus standi – When becomes immaterial.
Public interest litigation cannot be permitted to be invoked by a person or a body of persons to satisfy his or its personal grudge and enmity. Public interest litigation contemplates legal proceedings for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law.
The question of locus standi would not be material and the Court would allow litigation in public interest if it is found:-
That the impugned action is violative of any of the rights enshrined in part III of the Constitution of India and relief is sought for its enforcement;
That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance of law;
That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the constitutional law;
That such person or group of persons is not a busy body of meddlesome inter-lopper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objectives. Every default on the part of the State or Public Authority being not justifiable in public in such litigation;
That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
That the State action was being tried to be covered under the carpet and intended to be thrown out of technicalities;
Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.