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PETITIONER:

F.B. TARAPORAWALA AND OTHERS ETC.ETC.

Vs.

RESPONDENT:

BAYER INDIA LTD. AND OTHERS

DATE OF JUDGMENT: 09/09/1996

BENCH:

KULDIP SINGH, B.L HANSARIA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

HANSARIA. J.

Industrial growth, yes; but by exposing a large segment

of society to the risk of losing lives, no. This

apprehension is not imaginary. Bhopal disaster brought to

the knowledge of all what a tragedy can be caused by

chemical industries. In the wake of what happened there more

than a decade ago, industrialists engaged in production of

chemicals started thinking of taking precautionary and

protective measures to see that if worst wore to befall, how

could their financial liability be taken care of.

2. The aforesaid mental make-up led some leading chemical

manufacturers in the country, like Bayer India Limited, one

of the respondents herein, to approach the Bombay High Court

in a pending writ petition filed by some builders seeking

certain orders of the High Court. In one of the writ

petitions taken by the High Court for hearing, which was

numbered as 4497/90, the Court required the Municipal

Corporation to re-examine the building plans and to pass

appropriate orders keeping in view, inter alia, the

provisions of section 46 of the Maharasthra Regional and

Town Planning Act. The matter was brought to this Court by

the respondents contending, inter alia, that in the

sanctioned plan the area had been shown reserved for

industrial user. This Court permitted the respondents to

file a review petition before the High Court. On being so

approached, the High Court dismissed the intervention

application of the respondents and directed the Municipal

Corporation to permit construction. This order led the

respondents to approach this Court again by filing

Interlocutory Application in the disposed of SLP. This

Court, by an order passed on 24.2.1993, directed the High

Court to dispose of the review application and further

directed to maintain status quo, which prevented the

appellants tn carry on construction activity within one k.m.

radius from the factory premises. The High Court disposed of

the review application on 26.9.1994 by giving the following

directions :-

"(i) No additions or modifications

shall be permitted in respect of

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buildings that have been completed

or those were under construction as

on the data of stay order passed by

this Hon'ble Court on 8.1.1996.

(ii) In respect of schemes where

permission may have been granted

but no actual construction has been

commenced as on the date of this

Court's order dated 8.1.1991 ,

prohibition in respect of a total

ban on further construction within

1 km. radius from the chemical

units shall apply.

(iii) Save and except in the

aforesaid cases, the stay order

passed by this Court on 8.1.1991

shall continue to the extent that

there shall be a prohibition in

respect of any further permissions

or for that further permissions or

for that matter construction within

1 k.m. radius from the chemical

factories.

(iv) The stay order shall stand

vacated only in those of the cases

as indicated where construction has

been commenced and was required to

be stopped by virtue of the stay of

this Hon'ble Court."These appeals

question the aforseaid directions

of the High Court.

3. The appeals were heard on a number of occasions and

being of the prima facie view that by giving aforesaid

immunity to the industrialists injustice has been caused to

the residents of the locality inasmuch as prohibition of

constructions within 1 k.m. radius like- Thane did adversely

affect the right to reside in the locality, leaving at the

same time the large number of inhabitants already residing

exposed to the risk mentioned above, it was thought by us

that if the industrialists wanted to safeguard their

interest in the event of some accident happening in their

factories, it was for them either to shift their factories

to such places where the residential area could be kept wide

apart from the factory premises. But then,the response of

the respondents to the first proposal being negative because

of the huge financial involvement we applied our mind as to

whether we could examine at our level the question of

relocation.

4. Respondents were heard on this aspect on many occasions

and in the written submissions filed on 2.9.1996 by Bayer

India. which can be taken as a representative stand of the

respondents, it has been stated relocation is not possible

logistically, financially or otherwise. The written

submission mentions about various aspects relating to

relocation at pages 16 to 20. It has been felt by us that we

have neither the expertise nor are in possession of various

information, which shall be required. to decide one way or

the so far as the question of relocation is concerned. In

such a situation what has appealed to us is to leave this

matter to be examined by an Authority which we would require

the Central Government to constitute, as visualized by

section 3(3) of the Environment Protection Act, 1986 (the

Act). It is not necessary to deal at length as to what is

visualized by this Act and why ? This has been explained in

detail in a judgment delivered by one of us (Kuldip Singh,

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J.) on August 28, 1996 in Writ Petition (C) No.914 of 1991,

on behalf of a 3-Judge Bench. The concept of "sustainable

development", whose salient points have been noted in the

aforesaid Judgment, does call upon one and all to see to the

maintenance of balance between development and its

sustenance in future.

5. In the appeals at hand, we are confronted with a problem

which has more serious consequences and which touches the

core of Article 21 of the Constitution inasmuch as the very

lives of the inhabitants living around the factories in

question are in great jeopardy so much so that any probable

accident in the factories may see annihilation of large

number of inhabitants. May be the accident does not take

place, as has been submitted by Shri Jaitley appearing for

the respondents. There is, however, no ruling out of the

same altogether as Bhopal has shown. No risk can, therefore,

be taken. But then relocation does need a deeper probe

because of the various factors which would be required to be

gone into. Such an exercise can usefully be taken by an

Authority of which mention has been made above.

6. We, therefore, direct the constitution of an Authority

under section 3(3) of the Act by the Central Government, who

shall confer all the necessary powers under the Act on the

Authority, which shall be constituted within one month from

the receipt of this order. The Authority shall submit its

report to the Central Government within three months after

examining and deciding all the relevant issues including

those mentioned by us. This would be done by affording

reasonable opportunity of hearing to the concerned parties.

Follow up actions shall be taken by all concerned as per the

recommendations of the Authority within reasonable time.

7. As the constitution and deliberation of the authority

would take times, and its ultimate result cannot be foreseen

at this stage, we have thought it fit to direct the Bombay

Municipal Corporation to proceed further with the plans

which had been submitted by the appellants, some of which

also came to be sanctioned. But then, as sanctioning in some

cases was about a decade back and as the scenario and

thinking on the subject has since then changed a lot, so

also the building bye-laws, we have thought it fit to direct

the Corporation to re-examine the question of grant of

sanction on the basis of the existing rules and bye laws.

The Corporation may proceed with this exercise, but it would

await the result of the report of the aforesaid Authority.

We have desired the Corporation to undertake this work at

this stage itself because the matter has been delayed

already and Authority's deliberation would not be available

for quite some time.

8. In the aforesaid view of the matter, the review petitions

filed before the High Court by the respondents are not

required to be kept alive and they would stand dismissed on

withdrawal, to which effect prayer was made before us. The

impugned directions of the High Court would automatically

lapse.

9. The appeals are disposed of with these directions. No

order as to costs.