INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION A
v.
UNION OF INDIA
FEBRUARY
13, 1996 [B.P. JEEVAN REDDY AND B.N. KIRPAL, JJ.]
B
Constitution of India, 1950 : Articles 21 and 32.
Writ Petition-Maintainability of-Social action litigation--On behalf
of affected villagers-Due to pollution caused by private chemical in- C
dustries--Directed against Central and State Govemments and State Pollution
Control
Board-To compel them to perfonn their statutory duties-Held :
Petition maintainable even
if private chemical industries were not amenable
to writ jurisdiction-The
Cowt had power and duty to intervene and protect
right to life
of citizens-Water (Prevention
and Control of Pollution) Act,
1981-AIR (Prevention and Control of Pollution) Act, 1981-Hazardous D
Wastes (Management and Handling) Rules, 1989.
Constitution of India, 1950 : Article 32.
Petition complaining of pollution by private chemical industries-Court
can direct Central Govemment to recover costs
of remedial measures from
offending industries-Question
of awarding damages against these industries
left open.
Environmental (Protection) Act, 1986:
Sections 3 & 4.
Environmental Pollution-Remedial measures-Costs for carrying
out-Central Govemment could levy on pollute~Such power was implicit in
Sections 3 &
4.
·Environmental (Protection) Act, 1986: Sections 3 & 5.
E
F
I G
Envirimmental Pollution-Remedial measures-Pollute~Liability
of-To defray costs-{Jniversally accepted as sound principle-central
Govemment empowered to give directions and take measures for giving effect
to this principle.
Environmental
Pollution-chemical industries-Main culprits-Their H
503
504 SUPREME COURT REPORTS [1996] 2 S.C.R.
A establishment and functioning must be scmtinized rigorously.
Torts:
Environmental pollutiort--Negligence-P1inciples
of "strict liability'' and
"Polluter pays"-Applicability of-Hazardous or inherently dangerous ac
B tivity-Person carrying on-Absolute liability-Rule of-Laid down-In
Oleum gas leak-Not obiter but appropriate and binding--Rule in Reylands
v. Fletche1~Suitability and applicability to Indian conditions.
c
D
E
Practice and Procedure :
Environmental pollution-:;-R.ight to life-Invasion of-Due to pollution
caused
by private chemical
industries-Rep01ts from experts-Called by
Court-Use of-Various orders passed on basis
of reports-Objection theretO-Urged at a belated stage after lapse of several years-Wholly unacceptable.
The units/factories of the Respondents, located in
an industrial
complex, were all chemical industries
and were controlled by the same
group of individuals. The respondents started producing certain chemicals
like Oleum (concentrated form of sulphuric acid), Single Super Phosphate,
'H' acid, fertilizers and a few other products. The respondents had not
obtained the requi.site clearances/consents/licences; nor did they instal any
equipment for treatment of highly toxic effiuents discharged by them.
'H'
acid was meant for export exclusively. Its manufacture gave rise to
enor
mous quantities of highly toxic effiuents-in particular iron -based and
gypsum-based sludge -which if not properly treated, posed grave threat to
mother
Earth. It poisoned the earth, the water and everything that came
F
·in contact with it. The chemical produced ~y the respondents had given
birth to 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
and around the complex, the toxic substances had
percolated deep into the bowels of the earth polluting
foe acquifers and
G the sub-terranean supply of water. The water in the wells and the streams
and turned dark and dirty rendering it unfit for human consumption, unfit
for cattle to
drink and for irrigating the land. The soil had become polluted
rendering
it unfit for cultivation, the main stay of the villagers, resulting
in misery to the
vill~gers needs no emphasis. It spread disease, death and
H disaster in the village and the surrounding areas. The villagers then rose
/.
..
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. 505
in virtual revolt leading to the imposition of Section 144 Cr.P.C. by the A
District Magistrate in the area. It was averred by the respondents that
both the units, had stopped manufacturing 'ff' acid and were closed. 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.
The petitioner filed the present writ petition before this Court by way
of social action litigation, complaining precisely of the above situation
and
requesting for appropriate remedial action. The Court requested the
Na
tional Environmental Engineering Research Institute (NEERI) to study
B
the situation in and around the village and submit their report "as to the C
choice and scale of the available remedial alternatives". It was found that
out of a large quantity of sludge only a small quantity had been stored in
the pits provided by the respondents. The remaining sludge was still there
either within the area of the complex of the respondents
or outside their
complex. Huge quantities of sludge were lying
around either in the form
of mounds or placed in depressions, or spread over the continguous areas D
and covered with local soil to conceal its existence. The said sludge was
only a
part of the pernicious discharge emanating from the manufacture
of
'H' acid. The other part, which was not visible now (except in its
deleterious effects upon the soil
and underground water) was the 'mother
liquor' produced in enormous quantities which
had either flowed out or E
percolated into
·the soil.
On behalf of the petitioner it was contended that the abundant
material on record clearly established the culpability of the respondents for
the devastation in the village
and surrounding areas and their respon
sibility
and obligation to
properly store the remaining sludge, stop dis·
charge of all untreated effluents by taking necessary measures.
On behalf of the respondents it was contended that they were private
corporate bodies
and were not 'State' within the meaning of Article 12 of
F
the Constitution; that a writ petition under Article 32 of the Constitution G
was, therefore, not maintainable; that the
State Pollution Control Board
.
had been adopting a hostile and malafide attitude towards them; that
blaming them for the pollution was incorrect as a fact and unjustified; that
they had been cooperating with this Court in all matters and carrying out
its directions faithfully,
and that the Reports submitted by the various
so-called expert committees
that sludge was still lying around within and
H.
q
j
506 SUPREME COURT REPORTS [1996] 2 S.C.R. '
A outside their complex and/or that the toxic wastes from the Sulphuric Acid
Plant were flowing through and reaching the sludge a:'Jd creating a highly
dangerous situation w~s untrue and incorrect.
B
c
Allowing the appeal, this Court
HELD : 1.1. This writ petition is not really for issuance of ap
propriate writ, order or directions against the respondents but is directed
against the Central Government, the State Government and the State
Pollution Control Board to perform their statutory duties on the ground
that their failure to carry out their statutory duties is seriously undermin
ing the right to life (of the residents of the village and the affected area)
guaranteed
by Article 21 of the Constitution. If this Court finds
that the
Government/authorities have
not taken the action required of them by law
and that their inaction is jeopardising the right to life of the citizens of
this Country or of any section thereof, it is the duty of this Court to
D intervene. If it is found that the respondents are flouting the provisions of
law and the directions and orders issued by the lawful authorities, this
Court can certainly make appropriate directions to ensure compliance
with
law and lawful directions made thereunder. This is a social action
litigation on behalf
of the villagers whose right to life, as elucidated by this
Court in several decisions, is invaded and seriously infringed by the
E respondents as is established by the various Reports of the experts called
for,
and filed before this Court. If an industry is established without
obtaining the requisite permission
and clearances and if the industry is
continued to be
run in blatant disregard of law to the detriment of life and
liberty of the citizens living in the vicinity, this Court has power to
F intervene and' protect the fundamental right to life a.nd
liberty_ of the
citizens
of this country. [536-E-H; 537-A-B]
1.2. The
State Pollution Control Board has not been adopting a
hostile attitude towards the re~pondents and the reports prepared by it
G can be relied upon. If the respondents establish and operate their plants
contrary to law, flouting all safety norms provided by law, the State
Pollution Control Board is bound to act. On that account, it cannot be
said to be acting out of animus or adopting a hostile attitude. Repeated
and persistent violations call for repeated orders. That is no proof of
hostility. The Reports were called by this
Court and several
Orders pass~d
H on the basis of those Reports. It was never suggested on behalf of Respon-
-
'
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. 507
dents that unless they are permitted to cross-examine the experts or the A
persons who made those Reports, their Reports cannot be acted upon. This
objection, urged
at this late stage of proceedings -after a lapse of several
years -is wholly unacceptable. The persons who made the
said Reports are
all experts in their field and under no obligation either to the
State
Pollution Control Board or for that matter to any other person or in
dustry. It is in view of their independence and competence that their
Reports were relied upon and made the basis of passing Orders by this
Court from time to time. (537-C-H;
538-A]
B
13. The report of National Environmental Engineering Research
Institute clearly establish
that huge quantities of sludge were still lying C
around either in the form of mounds or placed in depressions, or spread
over the continguous areas
and covered with local soil to conceal its
existence.
It is worth reiterating that the said sludge is only part of the
pernicious discharges emanating from the manufacture of
'H' acid. The
other
part, which is unfortunately not visible now (except in its deleterious
effects upon the soil
and underground water) is the 'mother liquor' D
produced in enormous quantities which has either flowed out or percolated
into the soil.
It must, therefore, be held that the respondents alone are
responsible for all the damage to the soil, to the underground water and
to the village in general. (539-C-E; H]
Indian Council for Enviro-Legal Action v.
Union of India, (1995) 5
SCALE 578, relied on.
E
2.1. Even if it is assumed that this Court cannot award damages
against the respondents in these proceedings
that does not mean that the
Court cannot direct the Central Government to determine
and recover the F
cost of remedial measures from the respondents.
The Central Government is empowered
under
Sections 2 (a), 3 and
5 of the Environment (Protection) Act, 1986 to take all measures and issue
all such directions as are called for, for the above purpose.
In the present
case, the said powers will include giving directions for the removal of
G
sludge, for undertaking remedial measures and also the power to impose
the cost of remedial measures on the offending industry
and utilise the
amount so recovered for carrying out remedial measures. This
Court can
certainly
give directions to the Central Government/its delegate to take all
such measures, if in a given case this
Court finds that such directions are H
j
.
508 SUPREME COURT REPORTS [1996] 2 S.C.R.
A warranted. It cannot, therefore, be said that this Court cannot make
B
· appropriate directions for the purpose of ensuring remedial action. It is
more a
matter of form. [542-E; 543-A-D; G]
Indian Council for Enviro-Legal Action v.
Union of India, (1995) 5
SCALE 578, relied on.
2.2. The question is whether
and to what extent can the respondents
be made responsible for defraying the cost of remedial measures
in these
proceedings
under Article 32. Any principle evolved in this behalf should
be simple, practical and suited to the conditions obtaining in this country.
C The law stated by this Court in
M.C. Mehta v. Union of India (Oleum Gas
Leak Case), [1987) 1 SCC 395 is by far the more appropriate one and the
said decision is not obiter. According to this rule, once the activio/ 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
D 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 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
E dangerous activity regardless of whether it is carried on carefully or
not."
F
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 danger 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.
[540-B; 546-F-H; 547-A-C]
23. The Constitution Bench also observed such liability is not sub
ject to any of the exceptions which operate vis-a-vis the tortious principle
G of strict liability under the rule in Ryland v. Fletcher. The twin tests ~ apart
from the proof of damage to the plaintiff by the act/negligence of the
defendants -which
must be satisfied to attract this rule are
"foreseeability"
and "non-natural" user of the land. [545-F]
H M.C. Mehta v. Union of India, [1987) 1S.C.C.395, followed.
r
. '
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INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.0.I. 509
Union Carbide C01poration v. Union of India, [1991] 4 S.C.C. 584, A
paras 14 & 15, overruled .
Pravinbhai Jashbhai & Ors. v. State of Gujarat and Anr., (1995) 2
G.L.R. 1210; Cambridge Water Company v. Eastern Counties Leather, plc,
(1994) 2 W.L.R. 53 and Bumie Port Authority v. General Jones Pty Ltd.,
(1994) 68 Aus. W 331, referred to.
Ballard v. Tomlinson, (1885) 29 Ch. D. 115, cited.
Rylands v. Fletcher, (1866) 3 H.L. 330, held inapplicable.
B
3.1. The question of liability of the respondents to defray the costs C
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. According to this principle, the responsibility for
repairing the damage is
that of the offending party. Sections 3 and 5 of the
Environment Act empower the Central Government to give directions
and D
take measures for giving effect to this principle. Sections 3 and 4 of the
Environment Act confers 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. [547-F-G; 548-G-H;
5:17-E]
"Historic Pollution - Dose the Polluter Pay ?" By Carolyn Shelbourn
-Journal of Planning and Environmental Law, Aug. 1974 issue, approved.
E
3.2. Further, in this case, there is a clear violation of law and
disobedience of the Orders of this Court apart from the orders of the
lawful authorities. This
Court has to ensure the observance of law and of F
1
its Orders as a part of enforcement of fundamental rights. That power
cannot be disputed.
If so, this Court is competent to make
Orders neces-
sary for a full
and effective implementation of its
Orders -and that
includes the imposition and recovery of cost of all measures including
remedial measures. [542-F,
G] G
4. In the circumstances, it is appropriate that the task of determining · 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, is placed upon the
Central Government in the light of the provisions of the Environment Act.
H
510 SUPREME COURT REPORTS [1996] 2 S.C.R.
A It is open to the Central Government to take the help and assistance of
the State Government, the State Pollution Control Board or such other
agency
or authority as it thinks fit.
Itis but appropriate that an estimate.
of the cost of remedial measures be made
now with notice to the respon
dents, which amount should be paid to Central Government
and/or
B
·recovered from them by the Central Government. [548-H, 549-A, D]
c
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 967 of
1989.
With
Writ Petition-(C) Nos.
94/90, 824/93 and 76 of 1994. (Under Article 32 of the Constitution of India.)
Altaf Ahmad, Additional Solicitor General, Harish
N. Salve, K.N.
D Bhat and P.P. Malhotra,
M.C. Mehta, Ms. Seema Midha, K.R.R. Pillai,
P.R. Seetharaman, R.P. Wadhwani,
K.B. Rohtagi, M.K. Aggarwal, Ms.
Aparna Rohtagi, Mukul Mudgal, Aruneshwar Gupta, S.B. Wad, Surya
Kant, Ms.
Sushma Suri and Wasim A. Qadri for the appearing parties.
E
The Judgment of th'e Court was delivered by
B.P. JEEVAN REDDY, J. WRIT PETITION (C) NO. 967 OF 1989:
This 'Writ petition filed by an environmentalist organisation brings to
light the woes of people living in the vicinity of chemical industrial plants
p in India. It highlights the disregard, nay, 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
industrialisation and export earnings. Pursuit of profit has absolutely
drained them of any feeling for fellow human beings -for that matter, for
anything else. And the law seems to have been helpless. Systemic defects?
G 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
H out these opening remarks.
r
j
, ..
INDIANCOUNCILFORENVIRO-LEGALActrONv. U.O.I. [B.P.JEEVANREDDY,J.J 511
Bichhri is a small village in Udaipur district of Rajasthan. To its A
north is a major industrial establishment, Hindustan Zinc Limited, a public
sector concern. That did not affect Bichri. 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 [Respondent
B
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.
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.
c
D
Because of the pernicious wastes emerging from the production of E
'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 F
Gujarat High Court in Pravinbhai Jashbhai &
Ors. v. State of Gujarat &
Anr., (1995) 2 G.L.R. 1210, a decision rendered by one of us, B.N. Kirpoal,
J.
as the Chief Justice of that Court.] 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 G
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 and around
the complex, the toxic substances have percolated
dee.P into the bowels of H
512 SUPREME COURT REPORTS [1996] 2 S.C.R.
A the earth polluting the acquifers and the sub-terranean supply of water.
B
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
C 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 conse
quences of their action remain -the sludge, the long-lasting damage to
earth, to underground water, to human beings, to cattle and the village
D economy .. It is with these consequences that
we are to contend with in this
writ petition.
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
E 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 RESPONDENTS:
F On notice being given, counter-affidavits have been filed by the
Government
of India, Government of Rajasthan, Rajasthan Pollution Con
trol 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
G 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
H [Prevention and Control of Pollution] Act, 1974 [Water Act] and Air
_,
INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.l. (B.P.JEEVANREDDY,J.) 513
(Prevention and Control of Pollution) Act, 1981 [Air Act], again subject to A
certain conditions. However, this unit changed its product without
clearance
from the Board. Instead of sulphuric acid, it started manufactur-
ing 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 concentra-
B
tion of dissolved solids along with several dangerous pollutants. This unit C
was commissioned in February, 1988 without obtaining the prior consent
of the Board and accordingly, notice
pf closure was served on April 30,
1988. On May 12, 1988, the unit applied for consent under Wat er 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 mspection, D
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
E
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 off 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
F
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
is-G
sued imoosing 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 H
514 SUPREME COURT REPORTS [1996] 2 S.C.R.
A 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.
B
c
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 of in accordance with the provisions contained in the Hazardous
Wastes (Management and Handling) Rules,
1989 framed under Environ
ment (Protection) Act,
1986. 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.
The Govemment of Rajas than 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 under ground water
being caused by liquid effluents from the firms arrayed as Respondent Nos.
D 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
Bichri village and some other surrounding villages has become unfit for
drinking by human beings and cattle, though in some other wells, the water
E
remains unaffected.
The Ministry of Environment and Forests, Govemment of India filed
its counter
on February 8, 1990. In their counter, the Government of India
stated that Silver Chemicals
was merely granted a Letter
of Intent but it
never applied for conversion of the Letter of Intent into industrial licence.
F Commencing production before obtaining industrial licence 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 Govern
ment at any time even for a Letter of Intent. The Government of India
stated that in June,
1989, a study of the situation in Bichri village and some
G 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 Respon
dents Nos. 4 to 8 thus :
H "The effluents are very difficult to treat as many of the pollutants
·-
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. (B.P. JEEVAN REDDY, J.] 515
present are refractory in nature. Setting up such highly pollutin~ A
industry in a critical ground water area was essentially ill-con
ceived. The effluents seriously polluted the nearby drain and over
flowed into U daisagar 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
B
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 acquif er. Currently about
60 wells
appear to have been significantly polluted but every week a
few
new wells, down the acquifer start showing signs of pollution. This
has created
~erious problems for water supply for domestic pur
poses, cattle-watering crop irrigation and other beneficial uses, and
c
it has
also caused human illness and even death, degradation of
land and damage to fruit, trees and other vegetation. There are
D
serious apprehensions that the pollution and its harmful effects
will spread further after the onset of the monsoon
as the water
percolating from the higher parts of the basin moves down carrying
the pollutants
lying on the slopes -in the holding
pond and those
already underground."
Each of the
Respondent Nos. 4 to 8 filed separate counter-affidavits.
E
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 . p
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
upto August
15, 1988. Application for extension of consent has already
been filed. This counter-affidavit was filed on january
18, 1990.
In the counter-affidavit filed on behalf of the fifth respondent
[Silver
Chemicals], it is stated that the manufacture of 'H' acid which was com
menced
in February, 1988
has been completely stopped after January, 1989.
G
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 H
516 SUPREME COURT REPORTS [1996] 2 S.C.R.
A 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 Archeological Department of the Government of Rajasthan
had issued environmental clearance for its unit [rather surprising state
ment]. 'No-Objection Certificates' had also been issued by the Executive
B
c
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.
In the counter-affidavit
filed on behalf of the sixth respondent [Rajas
than Mult~ 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
D it was causing any pollution, either ground, air or water.
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
E 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.
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 commencei,i production in April 1987 and closed down completely in
F 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, there
fore,
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
G 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 ..
H Hindustan ·Zinc Limited was impleaded as the ninth respondent at
(
j
)
..
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. (B.P. JEEV AN REDDY, J.J 517
the instance of Respondents Nos. 4 to 8. It has filed a counter-affidavit A
denying that it is responsible in any manner for causing any pollution in
Bichri
village or the surrounding areas. According to it, its plants are
situated downstream, towards north of Bichri
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 Bichri or surrounding villages.
B
ORDERS PASSED AND STEPS TAKEN DURING
THE PERIOD 1989-1992:
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
c
the situation in and around Bichri village and submit their report "as to the
choice and scale of the available remedial alternatives". NEERI
was re-D
quested to suggest both short-term and long-term measures required to
combat the hazard already caused. Directions were also made for
supply
of d1inking 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 Bichri village.
On the next da.te 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
E
of the petitioner's statement that though the manufacture of 'H' acid may F
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
~~ environment.
Directions were given to the R.P .C.B. to arrange for its· transportation,
treatment and safe storage according to the technically accepted proce
dures
for disposal of chemical wastes of that kind. All reasonable expenses G
for the said operation were to be borne by Respondents Nos. 4 to 8
;;-.... [hereinafter referred to in this judgment 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. was directed to H
l
f
1
518 SUPREME COURT REPORTS [1996] 2 S.C.R.
A inspect and indicate the number and location of the wells to be de-watered.
B
c
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 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
task within
five weeks therefrom.
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-water-
D ing 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
E 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.)
On February 17, 1992, this Court passed a fairly elaborate order
observing that Respondents Nos.
5 to
8 are responsible for discharging the
F 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 189 mt. of iron-based sludge;-that
while the respondents blamed Respondent No. 9 as the main culprit,
Respondent No. 9 denied any responsibility therefor. The immediate con
cern, said the Court,
was the appropriate remedial action. The
l'eport of
G 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
H of India to depute its experts immediately to inspect the area to ascertain
-·
-
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. [B.P. JEEVAN REDDY, J.) 519
the existence and extent of gypsum-based and iron-based sludge, to suggest A
the handling and disposal procedures and to prescribe a package for its
transportation and safe storage. The cost of such storage and transporta-
tion
was to be recovered from the respondents.
Pursuant to the above Order, a team of experts visited the area and
submitted a Report alongwith an affidavit dated
t:Aarch 30, 1992. The
report presented a highly disturbing picture.
It stated that the sludge was
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 acquifer
may be affected due to the
pollution caused
by the industry. The organic content of the sludge needs
B
c
to be analysed 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 D
high which may cause the reddish colouration. 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
h_ave 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.
E
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 F
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
f1,1rther.
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-cooperation.
Several Orders were passed
by this Court in that behalf and ultimately, the
work commenced.
G
H
520 SUPREME COURT REPORTS [1996] 2 S.C.R.
A ORDERS PASSED IN 1993, FILING OF WRIT PETITION (C) NO. 76
OF 1994 BY RESPONDENT NO. 4 AND THE ORDERS PASSED
THEREIN:
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 under-
B ground 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,
C analysis was conducted and the experts submitted the Report on November
1, 1993.
Under the heading "Conclusion", the report stated.:
D
E
F
"5.0. CONCLUSION
5.1. On the basis of the observations and analysis results, it is
concluded beyond doubt that the sludge inside the emtomed ·pit is
the contaminated one as evident from the number of parameters
analysed.
5.2. The groundwater is also contaminated due to discharge of
H-acid plant effluent as well as H-acid siudge/contaminated soil
leachates
as sh.own in the photographs and also supported by the
results. The analysis result revealed good correlation between the
colour of well water and
Headd 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
groundwa~er
due to disposal of H~acid waste."
The report which is based upon th!!ir 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
G heading "Site Observations & Collection of Sludge/Contaminated Soil
Samples", the following facts are stated :
"2.1. The Central team, dur.ing inspection of the premises of M/s.
HACL, observed that
H-acid sludge
(iron/gypsum) and con
taminated soil are still lying at different places, as shown in Fig. I,
H within the industrial premises (Photograph 1) which are the left
.,
I
"- INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.I. [B.P.JEEYANREDDY,J.) 521
overs. The area, where the solar evaporation pond was existing A
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.
B
moy-
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 of
in six
lined entombed pits
covered by lime/flyash mix, brick soling and
concrete (Photographs 3 &.4).
The remaining scraped sludge and c
contaminated soil was lying near the entombed pits for want of
additional djsposal facility. However, during the visit, the left over
sludge and contaminated soil could not be traced at site. Inspection
of the surrounding area revealed that
a huge heap off oreign soil
of 5 metre height (Photograph 5) covering a large area, as also
D
indicated in Fig. 1, was raised
on the slopy ground at the foot hill
within the industry premises.
The storm water run-off pathway over
the area showed indication of H-acid sludge leachate coming out
of the heap. Soil in the area
was sampled for analysis.
2.3. Mis HACL has a number of other industrial units which are
E
operating within the same premises without valid consents from the
Rajasthan Pollution Control Board
(RPCB). These plants are
sulphuric acid (H2S04), fertilizer (SSP) and vegetable oil extrac-
tion.
The effluent of these units are not properly treated and the un~reated effluent particularly from the acid plant is passing through
F
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, S04 : 21,000 mg/1,
Fe : 392 mg/1, COD : 167 mg/1) which was also revealed in the
G
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 sample from the surroundings of the (presently non-ex- H
"
f
522 SUPREME COURT REPORTS [1996] 2 S.C.R. '._
A
B istent) solar evaporation and the contaminated soil due to seepage
from the newly raised dump site also exhibited
very high values of
the above mentioned parameters. This revealed that the con
taminated soil is buried under the new dump found by the team."
So much for the waste disposal by the respondents and their continu
ing good conduct! To the same effect is the Report of the R.P.C.B. which
is dated October 30, 1993.
In view of the aforesaid Reports, all of which unanimously point out
the consequences of the
'H' acid production, the manner in which the
C 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
D Acid Plant and the solvent extraction Plant including oil refinery of the
fourth respondent with immediate effect. Orders were also passed direct
ing disconnection of electricity supply to the said plants. The fourth .respon
dent 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
E petitioner's [Hindustan Agro Chemicals Limited] reply to the show-cause
notices,. orders of closure and disconnection of electricity supply were
passed and that this was done by the
R.P.C.B. with a malafide 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
F 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 con
structive 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
G re-start 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 ef-
H fluents from the Sulphuric Acid
Plant. The construction of temporary tank ,
..
\.
I
1
" INDIAN COUNCIL FOR ENVIRO·LEGAL ACTION v.
1
U.O.I. [B.P. JEE:" AN REDDY, J.] 523
was supposed to be an interim measure pending the construction of an A
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 a slum
B
ber until
October 13, 1995.
NEERI REPORT:
At this juncture, it would be appropriate to refer to the Report C
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
D
to its Report at some length :
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 : E ·
Gypsum sludge produced during the neutralisation 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 sludge constitutes unreacted iron
powder, besides ferric salts
and organics.
It is estimated that, for each tonne of H-acid manufactured, about
F
G
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 characterised by low pH (around 2.0) and high
concentration of total dissolved solids (80 -280 g/L). High COD H
A
B
c
D
. E
F
G
H
524
SUPREME COURT REPORTS
J
[1996] 2 S.C.R.
of the wastewater (90 g/L) could be attributed to organics formed
during various stages of manufacture. These include nephthalene
trisulphonic acid, nitro nephthalene sulphonic acid, Koch acid and
H-acid, besides several other intermediates.':
At Pages 8 and 9, the Report describes the manner in which the
sludge and other industrial wastes were disposed of 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 a produc
tion of
.375 tonnes by Mis. Silver Chemicals Ltd. and
M/s. Jyoti
Chemicals Ltd ...... .
*
*
*
* Majority of sludge brought back from disposal sites located
outside the plant 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
pwpose was only to that extent .
Remaining sludge
and sludge mixed soil were, howeve1; present
in the plant premises as these could
not be transfe"ed 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 superphosphate), 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
I. 0) presently
generated from these units was flowing over the abandoned
dumpsite. 11tis leaches the sludge mixed soil from the aban
doned dumpsite
and the contaminated water flows by gravity
towards east
and finds its way into a nallah flowing through the
"l
-
..
-
INDIAN COUNCIL FOR ENVIRO-LEGALACTION "· U.0.1. [B.P. JEEVAN REDDY, J.) 525
compound and conveys the contaminated water to an ilrigation A
canal which oliginates from Udaisagar lake (Pate 1.4)."
(Emphasis added)
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 :
"Damage to Crops and Trees
The field surveys in contaminated fields
in zone I and II showed
that no
crops were coming in the fields paTticularly 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
1
old trees which were badly affected due to contamination are still
· growing under stress conditions as a result of soil contamination.
B
c
D
The top soils at the old dump sites outside the plant premises are E
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 F
decontamination."
In Chapter-6, 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
G
ground water and soils within 2 km from the plant have been
contaminated. After critically scrutinising the data, it was con
cluded that there is an urgent need to work out a decontamination
strategy for the affected area. This strategy includes the decon
tamination of the soil, contaminated ground water and abandoned H
A
B
c
D
526 SUPREME COURT REPORTS (1996] 2 S.C.R.
dump sites .. This Chapter details the remedial measures that can
be considered for implementation to restore the environmental
quality of the affected area."
The Chapter then sets out the various remedial measures, including
land treatment, soil washing, revegetation, control over the
flow of the
contaminated water to adjoining lands through canals, leaching
Of soluble
salts, design of farm to development Agroforestry and/or forestry planta
tion with salt tolerant crops/plants and ground water decontamination.
Inter alia, the Report states :
"The entire contaminated area compnsmg of
350 ha of con
taminated 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. Silver Chemicals Ltd. and
M/s. Jyoti Chemicals 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 Agrochemicals Ltd. during the
monsoon of
1994."
Under
Para 6.3~2., the Report suggests "Decontamination Alterna
tives for Groundwater" including Bioremediation, Degradation of H-acid
E by Azotobacter Vinelandii, Isolation of Bacterial Population from H-acid
Contaminated Soil and several other methods.
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
F control and direct waste treatment.
G
H·
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 NEERl's team during the current study
that the industry
has not provided adequate effluent treatment
facilities
and the wastewaters (pH 1.5) from the existing plants
(Sulphuric acid, Fertilizer,
and Oil extraction) are being dis
charged, without treatment, on land within the plant premises. This
indiscriminate and willful disposal activity
is further aggravating the
contamination problem
in the area. Acidic effluent leaches the pol-
I
"-'-
-
/
--
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEV AN REDDY, J.J 527
lutants from the dumped sludge and the contaminated soil and A
facilitates th Cir penetration through the ground and thereby increas-
ing the concentration of sulphates and dissolved solids in
groundwater. What is most selious is the fact that the indust1y
pro,duced chlorosulfonic acid for a few months during late 1992
which is a hazardous and toxic substances as per MEF Notification B
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 con- C
cemed appropriate regularity (regulatory?) auth01ities and without
providing for any pollution control measures.
it is, therefore, essen-
tial for
M/s. Hindustan Agrochemicals Ltd. to comply with these
requirements for carrying out the present industrial activities.
The
abatement
of
further contamination wa1Tants the closure of all in-D
dustrial operations. till an appropriate effluent treatment plant is
installed, and certified by RPCB for its functionality in keeping
with the provisions of Water Act."
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
concem 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."
(Emphasis added)
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 regard' the
respondents have for
law!
At
Pages 179 onwards, the Report refers to the damage to the crops
E
G
and the land and to the psychological and mental torture inflicted upon H
'('
528 SUPREME COURT REPORTS
. f
[1996] 2 S.C.R.,
A the villagers by the respondents and suggests that the principle of 'Polluter
Pays' should be applied
in this case inasmuch as
"the incident involved
deliberate release
of untreated acidic process wastewater and negligent han
dling
of waste sludge knowing
fully well the implif:ation of such acts." The
Report suggest that compensation should be paid under two heads, viz.,
B
c
D
E
F
(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.
Para
7.4. states the conclusions flowing from the material in Chap
ter-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:
When all these matters were posted before the Court on October 13,
1995, we realised 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. Sub
missions have also been made on the questions of law arising herein.
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 officiais to the spot and
G report to us the latest position on the following aspects : .
(i) Whether the factories of Silver Chemicals, Rajasthan Multi Fer
tilizers and Joyti Chemicals are still working and whether the machinery
installed in the said plant
is still existing? [This information was required
to check the statement of the respondents that the said units are lying
H closed since last several year,s.]
•
"
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION" U.0.1. (B.P. JEEV AN REDDY, J.) 529
(ii)
To report whether the factory or factories of Respondent No. 4, A
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 sludge was lying in the
area or in the premises of the respondents'
complex, its approximate quantity
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 analysed and tell us whether it is fit for
drinking by cattle
and/or fit for irrigation purposes.
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 dis
Closes the following facts :
B
c
D
(1) The two units, Silver Chemicals and Jyoti Chemicals, do not exist E
now. There is no machinery. A godown 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 Grannulated Single
Super Phosphate (G.S.S_P.)], a Sulphuric Acid
Plant, a Chlorosulphonic
Acid Plant, Edible Oil Solvent Extraction Plant, Edible Oil Refinery and
F
a Ferric Alum Plant (known as M/s. Jyoti Chemicals), all of which are G
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
h the area is concerned, the report stated :
"3. Village Bicchidi and other adjoining areas were visited by the H
A
B
c
530 SUPREME COURT REPORTS (1996] 2 S.C.R.
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 were 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
Mis Hindustan Agro Chemicals Ltd. was 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 notices under Environ
ment Protection Act,
1986." So far as the water in the wells was concerned, the Report mentioned that
D 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".
E
Sri K.N. Bhat, learned counseJ for the respondents, however, sub
mitted 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 oppor
tunity to file objections to the said Report or to produce material to
F
. contradict the statements made therein. While taking note of these submis
sions,
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, 1995,
G S.S.P. Plant [Phosphate India] -November 11, 1995, G.S.S.P. Plant [Rajas
than Multi Fertilizers] -July 7, 1995, Solvent Extraction Plant and 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-af-
H fidavits filed by these units in
1990~9f.
<-
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.0.1. [B.P. JEEVAN REDDY, J.) 531
CONTENTIONS OF THE PARTIES:
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 estab
lishes the culpability of the respondents for the devastation in village
Bichhri and surrounding areas and their responsibility and obligation to
properly store the remaining sludge, stop discharge of
all untreated
ef
fluents 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
l~w and lawful orders on the part of the respon
dents, 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 SCC 395 as well as the recent Order of this Court in Indian Council
A
B
c
for Enviro-Lega/ Action v. Union of India, (1995) 5 SCALE 578. Learned D
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.
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
cir
cumstances.
Sri K.B. Rohtagi, learned counsel for the R.P.C.B., invited our atten-
E
F
tion 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 environ
mental laws and that after conferment of such power, they did pass orders G
of closure. He denied the allegations of malaftdes 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 remedy-
ing the apalling conditions in the village due to the acts of the respondents.
H
532 SUPREME COURT REPORTS [1996] 2 S.C.R.
A Sri K.N. Bhat, learned counsel for the respondents, made the follow-
B
c
ing submissions :
(1) The respondents are private corporate bodies. They are not
'State' within the meaning of Article
12 of the Constitution. A writ petition
under Article
32 of the
~onstitution, therefore, does not lie against them.
(2) The R.P.C.B. has been adopting a hostile attitude towarqs these
respondents from the very beginning. The Reports submitted
by it
~r
obtained by it are, therefore, suspect. The respondents had no opportunity
to test the veracity of the said Reports.
If the
matt~r had been fought out
in a properly constituted suit, the respondents would have had an oppor
tunity 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
D discharging toxic untreated effluents in an unregulated Jllanner. This had
affected the water in the wells, streams and acquifers. This
is
borne out by
the several Reports made long prior to 1987. Blaming the respondents for
the said pollution
is incorrect as a fact and unjustified.
E
F
(4) The respondents have been cooperating 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 oJ 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
upon 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
G been prescribed
iti the case of respondents. The decision of the Gujarat
High Court in
Pravinbhai Jashbhai
Patel shows that the method of disposal
prescribed there is different and less elaborate than the one prescribed in
this case.
(5)
The Reports submitted by the various so-called expert
commit
H tees that sludge is still lying around within and outside the respondents'
.<
,.J
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P . .TEEVAN REDDY, J.] 533
complex and/or that the toxic wastes from the Sulphuric Acid Plant are A
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
B
Act and the Environment [Protection] Act is again unsustainable in law C
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
D
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 E
the respondents on account of their illegal and obstructionist policy
adopted towards them.
(8) The decision in Oleum Gas Leak case has been explained in the
opinion of Ranganath Misra,
CJ., in the decision in Union Carbide Cor
poration V. Union of India, [1991) 4 sec 584. The law laid down in
Oleum F
Gas Leak case is at variance with the established legal position in other
Commonwealth countries.
Sri Bhat suggested that in the larger interests of environment, in
dustry and public, this Court may direct the Government
of India to G
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.
Proceed-
ings by way of a writ in this Court under Article 32 or in the High Court H
i
534 SUPREME COURT REPORTS
[1996] 2 S.C.R.
A 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.
B
c
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:
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 livin1roreatures ...... ".
The problem of increasing pollution of rivers and streams in the
D 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· treat
ment and that pollution of rivers and streams was causing damage to the
E country's economy. A committee was set up in 1962 to draw a draft
ena~tment 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
p expert committees also made their recommendations meanwhile. Since an
enactment on the subject
was relatable to Entry 17 read with Entry 6 of List-I~ 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
G 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 ~ccord-
H ance with such standards as may be laid down by the State Board to enter
-
\'
~
--
INDIAN COUNCIL FOR ENVJRO-LEGAL ACTION v. U.0.1. [RP. JEEVAN REDDY. J.] 535
whether (directly or indirectly) into any stream or well
....
". Section 25(1), A
before it was amended by 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 effluent into a stream or well or begin to make any new
discharge of sewage or trade effluent into a steam or well." As amended
by Act
53 of 1988,
Section 25 now reads : "25(1) Subject to the provisions
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']; er (b) bring into use any new
B
c
or altered outlets for the discharge of sewage or (c) begin to make any new
discharge of sewage ..... ". [It is stated that the Rajasthan Assembly passed
resolution under Article
252 of the Constitution adopting the said amend
ment Act
vide Gazette Notification dated may 9,
1990.J Section 33 em-D
powers 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 provisions of the Act.
Prior to the said
amendment Act, the Pollation 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.
The Air [Prevention and Control of Pollution] Act, 1981 contains
similar provisions.
E
F
In the year 1986, Parliament enacted a comprehensive legislation,
Environment (Protection) Act. The Act
defines "environment" to include G
"water, air and land and the inter-relationship which exists among and
between water, air and land and human beings, other living creatures,
plants, micro-organison and property." The preamble to the Act recites
that the said Act was made pursuant to the decisions taken at the
United
Nations Conference on the Human Environment held at Stockholm in H
1
I
,I
536 SUPREME COURT REPORTS [1996] 2 s.c.R.
A June, 1972 in which India also participated. Section 3 empowers the
Central Government
"to take all such ineasures as it deems
necessa1y or
expedient for the pwpose
of protecting and improving the quality of the
environment and preventing, controlling and abating environmental pollu
tion". Sub-section (2) elucidates the several powers inhering in Central
B
c
government in the matter of protection and promotion of environment.
Section 5 empowers the Central Government to issue appropriate direc
tions to any person, officer or authority to further the objects of the
enactment. Section 6 confers rule-making power upon the Central Govern
ment in respect of matters referred
to in Section 3. Section 7 says that "no
person carrying on any industry, operation or process shall discharge or
emit or permit to be discharged or emitted any environmental pollutant in
excess of such standards,
as may be prescribed".
The Central Government has made the Hazardous Wastes (Manage
ment and Handling) Rules,
1989 in exercise of the power conferred upon
D it by Section 6 of the Environment
(Protection) Act prescribing the manner
in which the hazardous wastes shall be collected, treated, stored and
disposed
of.
E
F
CONSIDERATION OF THE SUBMISSIONS:
Taking up the objections urged by Sri Bhat first, we find it difficult
to agree with them. This writ petition
is not really for issuance of ap
propriate writ, order
or directions against the respondents but is directed
against the Union of India, Government of Rajasthan and R.P.C.B. to
compel them to perform their statutory duties enjoined
by the Acts
aforementioned on the ground that their failure to carry out their statutory
duties is seriously undermining the right to life [of the residents of Bichhri
and the affected area] guaranteed by Article
21 of the Constitution. If this
Court finds that the said authorities have not taken the action required of
them by law and that their inaction
is jeopardising the right to life of
citizens of this country or of any section thereof, it is the duty of this court
G to intervene. If it is found that the respondents are flouting the provisions
of law and the directions and orders issued
by the lawful authorities, this
Court can certainly make appropriate directions to ensure compliance
with
law and lawful directions made thereunder. This is a social action litigation
on behalf of the villagers of Bichhri whose right to life, as elucidated by
H this Court in several decisions, is invaded and seriously infringed by the
-
~-INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.O.I. [B.P. JEEVAN REDDY.J.] 537
respondents as is established by the various Reports of the experts called A
for, and filed before, this Court. If an industry is established without
obtaining the requisite permission and clearances and if the industry
is
continued to be run in blatant disregard of law to the detriment of life and
liberty of the citizens
living in
the vicinity, can it be suggested with any
modicum of reasonableness that this Court has no power to intervene and
protect the fundamental right to life and liberty of the citizens of this
country. The answer,
in our opinion, is self-evident. We are also not
convinced of the plea of
Sri Bhat that R.P.C.B. has been adopting a hostile
attitude towards his clients throughout and, therefore, its contentions or
B
the Reports prepared by its officers should not be relied upon. If the
respondents establish and operate their plants contrary to
law, flouting all
safety norms provided
by law, .the
R.P.C.B. was bound to act. On that
account, it cannot be said
to be acting out of animus or adopting a hostile
attitude. Repeated and persistent violations call for repeated orders. That
c
is no proof of hostility. Moreover, the Reports of
R.P.C.B. officials are fully
corroborated and affirmed
by the Reports of central team of experts and D
of NEER!. We are also not prepared to agree with
Sri Bhat that since the
Report of NEERI
was prepared at the instance of
R.P.C.B., it is suspect.
This criticism is not only unfair but is also uncharitable to the officials of
NEERI who have no reason to be inimical to the respondents.
If, however,
the actions of the respondents invite the concern of the experts and if they
depict the correct situation in their Reports, they cannot be accused of any
bias. Indeed, it is this court that asked
NEERI to suggest remedial
measures and it
is in compliance with those orders that NEERI submitted
its interim Report and also the final Report. Similarly, the objection of
Sri
Bhat that the Reports submitted by the NEERI, by the Central team
(experts from the Ministry of Environment and Forests, Government of
India] and R.P.C.B. cannot be acted upon is equally unacceptable. These
Reports were called
by this Court and several
Orders passed on the basis
of those Reports.
It was never suggested on behalf of Respondents Nos. 4
E
F
to 8 that unless they are permitted to cross-examine the experts or the
persons who made those Reports, their Reports cannot be acted upon. This
G
objection, urged at this late stage of proceedings -after a lapse of several
years -is wholly unacceptable. The persons who made the said Reports are
all experts in their field and under no obligation either to the
R.P.C.B. or
for that matter to any other person or industry. It
is in view of their
independence and competence that their Reports were relied upon and H
!
,/
538 SUPREME COURT REPORTS (1996] 2 S.C.R.
A made the basis of passing Orders by this Court from time to time.
B
Now coming to the question alleged pollution by Hindustan Zinc
Limited (R-9], it may
be that Respondent No. 9 is also responsible for
discharging untreated effluents at one or the other point of time but that
is not the issue we are concerned with in these writ
petitions: These writ
petitions are confined to the pollution caused in Bichhri village on account
of the activities of the respondent. No Report among the several Reports
placed before us in these proceedings says that Hindustan Zinc Limited is
responsible for the pollution at Bichhri village. Sri Bhat brought to our
notice certain Reports stating that the discharges from Hindustan Zinc
C Limited were causing pollution in certain villages but they are all down
stream, i.e., to the north of Bichhri village and
we are not concerned with
the pollution in those
village~ in these proceedings. The bringing in of
Hindustan Zinc Limited in these proceedings
is, therefore, not relevant. If
necessary, the pollution, if any, caused by Hindustan Zinc Limited can be
D
tlie subject-matter of a separate proceeding.
We may now deal with the contentions of Sri Bhat based upon the
affidavit of R.P.C.B. dated November 13, 1992 which has been repeatedly
and strongly relied upon
by the learned counsel in support of his
submis
sion that the entire sludge has been properly stored by or at the expense
E of his clients. It is on the basis of this affidavit that Sri Bhat says that the
subsequent Reports submitted showing the existence of sludge within and
outside their complex should not
be accepted or acted upon. Let us turn
to the affidavit of
R.P.C.B. dated November 13, 1992 and see how far does
it support Sri Bhat's contention.
It is in
Para 2(b) that the sentence, strongly
F relied upon by Sri Bhat occurs, viz., "remaining work is likely to be
completed by 15th November, 1992". For a proper appreciation of the
purport of the said sentence, it would
be appropriate to read the entire Para 2(b), which is to the following effect: "(b) that all the six tanks have
been entombed with brick toppings. Roofing
is complete on all
tanks which
have also been proyided with proper outlets for the exit of gases which may
G form as a result of possible chemical reactions in the sludge mass. The
tanks have also been provided with reinforced concrete to prevent
broop
ing of the roof. Remaining work is likely to be completed by 15th Novem
ber, 1992." We find it difficult to read the said sentence as referring to the
storage of th~ remaining about 1700 MT of sludge. When the storage of
H 720 MT itself took up all the six tanks provided by the respondent, where
-
--
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.L [B.P. JEEVAN REDDY, J.) 539
was the remaining 1700 tonnes stored? Except relying upon the said A
sentence repeatedly, Sri Bhat has not been able to tell us where this 1700
MT has been stored, whether in tanks and if so, who constructed the tanks
and when and
how were they covered and sealed. He is also not able to
tell
us on what dates the remaining sludge was stored. It is evident that the
aforesaid sentence occurring in clause 2(b) refers to the proper sealing and
completion of the said tanks wherein
720 MT of sludge was stored. If, in
fact, the said 1700 MT has also been entombed, it was not difficult for the
respondents to
give the particulars of the said storage. We are, therefore,
unable to agree with Sri Bhat that the subsequent Reports which repeatedly
and uniformly speak of the presence of sludge within and outside the
complex of the respondents should not be accepted.
It may be recalled that
the Report of the team of Central Experts
was submitted on November 1,
1993 based upon the inspection made by them in September/October, 1993.
To the same effect is the affidavit of
R.P.C.B. dated October 30, 1993 and
the further affidavit dated December
1, 1993. These Reports together with
B
c
the report of NEERI Clearly establish that huge quantities of sludge were D
still lying around either in the form of mounds or placed in depressions,
or spread over the contiguous areas and covered with local soil to conceal
its existence.
It is worth reiterating that the said sludge is only part of the
pernicious discharges emanating from the manufacture of
'H' acid. The
other part, which
is unfortunately not visible now [except in its deleterious
effects upon the soil and underground water] is the 'mother liquor'
produced in enormous quantities which has either flowed out or percolated
into the soil.
So far as the responsibility of the respondents for causing the pollu-
E
tion in the wells, soil and the acquifers is concerned, it is clearly established F
by the analysis Report referred
to in the Report of the Central Experts
team dated November
1, 1993
[Page 1026 of Vol. II]. Indeed, number of
Orders passed
by this Court, referred to hereinbefore, are premised upon
the finding that the respondents are responsible for the said pollution.
It
is only because of the said reason that they were asked to defray the cost
of removal and storage of sludge.
It is precisely for this reason that, at one G
stage, the respondents had also undertaken the de-watering of polluted
wells. Disclaiming the responsibility for the pollution in and around Bichhri
village, at this stage of proceedings,
is clearly an afterthought. We accord
ingly held and affirm that the respondents alone are responsible for all the
damage to the soil, to the underground water and to the village Bichhri in
H
j
.(
540 SUPREME COURT REPORTS [1996) 2 S.C.R.
A general, damage which. is eloquently portrayed in the several Reports of
the experts mentioned hereinabove. NEER! has worked out the cost for
repairing the damage at more than Rupees forty crores.
Now, the question
is whether and to what extent can the respondents be made responsible for
defraying the cost of remedial measures in these proceedings under Article
B
32. Before we advert to this question, it may perhaps be appropriate to
clarify that
so far as removal of remaining sludge and/or the stoppage of
discharge of further toxic wastes are concerned, it
is the absolute respon
sibility
of the respondents to store the sludge in
a· proper manner [in the
same manner in which 720 MT of sludge has already been stored) and to
stop the discharge of any other or further toxic wastes· from its plants
C including Sulphuric Acid Plant and to ensure that the wastes discharged
do not flow into or through the sludge.
Now, turning to the question of
liability, it would be appropriate to refer to a
few decisions on the subject.
In
Oleum Gas Leak case, a Constitution Bench discussed this ques
D tion at length and held thus :
E
F
G
H
"We are of the view that an enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and non
delegable duty to the community to ensure that no harm results to
anyone on account of hazardous or inherently dangerous. nature
of the activity which it has undertaken. The enterprise must be
held to be under an obligation t<? provide that the hazardous or
inherently dangerous activity
in which it is engaged must be con
ducted with the highest standards of safety and if any harm results
on account
of such activity, the enterprise must be absolutely liable
to compensate for such harm and it should
be no answer to the
enterprise to say that it had taken all reasonable care and that the
harm occurred without any negligence on its part.
Since the per
sons harmed on account of the hazardous or inherently dangerous
activity carried on
by the enterprise would not be in a position to
isolate the process of operation from the hazardous preparation
of substance or any other related element that caused the harm
the enterprise must be held strictly liable for causing such harm
as a part of the social cost for carrying on the hazardous or
inherently dangerous activity.
If the enterprise is permitted to carry
---
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INDIAN COUNCIL FOR ENVIRO-LEGALACDON "· U.0.1. [B.P. JEEVAN REDDY, J.J 541
on an hazardous or inherently dangerous activity for its profits, the A
law must presume that such permission is conditional on the
enterprise absorbing the cost of
any accident arising on account
of
such. hazardous or inherently dangerous activity as an ap
propriate item of its overheads.
Such hazardous or inherently
dangerous activity for private profit can be tolerated only on
condition that the enterprise engaged
in such hazardous or in
herently 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 .......... We would therefore hold that where an enterprise
is engaged in a hazardous or inherently dangerous activity and
harm results to anyone on account of an accident in the operation
B
c
of such hazardous or inherently dangerous activity resulting for
example, in escape of toxic
gas the enterprise is strictly and
absolutely liable to
compem~te all those who are affected by the
accident and such liability
is not subject to any of the exceptions D
which operate vis-a-vis the tortious principle of strict liability under
the rule in
Ryland v. Fletcher [supra] ..
We would also like to point out that the measure of compen
sation in the kind of cases referred to in the preceding paragraph
must be correlated to the magnitude and capacity of the enterprise
because such compensation must have a deterrent effect. the larger
and more prosperous the entire,
greater must be the amount of
compensation payable
by it for the harm caused on account of an
accident in the carrying on of the hazardous
or inherently
dangerous activity
by the enterprise."
Sri Bhat, however, points out that in the said decision, the question
whether the industry concerned therein
was a 'State' within the meaning of
Article
12 and, therefore, subject to the discipline of Part-III of the
Constitution including Article
21 was left open and that no compensation
E
F
as such was awarded by this Court to the affected persons. He relies upon G
the observations in the concurring opinion of Ranganath Misra, CJ., in
Union Carbide Corporation (1991] 4
SCC 584. The learned Chief Justice,
referred in the first instance, to the propositions enunciated in
Oleum Gas
Leak case and then made the following observations in
Paras 14 and 15:
"14. In M.C. Mehta case, no compensation was awarded as this H
I
542
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B
c
SUPREME COURT REPORTS [1996] 2 S.C.R. '
Court could not reach the conclusion that Shriram (the delinquent
comI?any) came within the meaning of 'State' in Article 12 so as
to be liable to the discipline of Article
21 and to be subjected to
a proceeding under Article 32 of the Constitution. Thus what was
said
was essentially obiter.
15. The extracted part of the observations from
M.C. Mehta case
perhaps
is a good guidelines for working out compensation in the
cases to which the ratio
is intended to apply. The statement of the
law ex-facie makes a departure from the accepted legal position
in
Rylands v. Fletcher. We have not been shown any
binc}ing
precedent from the American Supreme Court where the ratio of
M.C. Mehta decision has in terms been applied. In fact Bhagwati,
C.J., clearly indicates in the judgment that his
view is a departure
from the law applicable to western countries."
The majority judgment delivered
by M.N.Venkatachaliah, J. [on be-
D
llalf of himself and two other learned Judges] has nQt expressed any
opinion on this issue. We on o~r part find it difficult to say, with great
respect to the learned Chief Justice, that the law declared
in
Oleum Gas
Leak case is obiter. It does not appear to be unnecessary for the purposes
of that case. Having declared the
law, the Constitution Bench directed the
E parties and other organisations to institute actions on
the-basis of the law
so declared.* Be that
as it may,
we are of the considered opinion that even
if it
is assumed [for the sake of argument] that this Court cannot award
damages against the respondents in these proceedings that does not mean
F
G
H
* A distinction between the
Oleum Gas Leak case and the present case may be noticed.
That
was not a case where the industry was established or was being operated contrary
to law
as in the present case. That was also
not a case where the orders of lawful ·
authorities and Courts were violated with impunity as in this case. In this case, there
is a clear violation of law and disobedience to the Orders of this Court apart from the
orders of the lawful authorities. The facts stated above and findings recorded by us
hereinafter bear it out. This Court has to ensure the observance of law and of its
Orders
as a part of enforcement of fundamental rights. That power cannot be disputed.
If so, a question may arise why is this Court not competent to make Orders necessary
for a full and effective implementation
of its Orders -and that includes the imposition
and recovery
of cost of all measures including remedial measures. Above all, the
Central Government has the power under the provisions
of Sections 3 and 5 of the
Environment
(Protection) Act, 1986 to levy and recover the cost of remedial measures
-as
we shall presently point out. If the Central Government omits to do that duty, this
Court can certainly issue appropriate directions to it to
takt necessary measures. Is it
not open to the Court, in an appropriate situation, to award damages against private
parties as part
of
relief granted against public authorities. Thls is a question upon which
we do not wish to express any opinion in the absence
of a full debate at the Bar.
--
...
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.] 543
that the Court cannot direct the Central Government to determine and A
recover the cost of remedial measures from the respondents. Section 3 of
the Environment (Protection) Act, 1986 expressly empowers the Central
Government [or its delegate, as the case may be] to
"take all such measures
as it deems
necessaiy or expedi.ent for the purpose of protecting and improving
the quality of environment ...... ". Section 5 clothes the Central Government
[or its delegate] with the power to issue directions for achieving the objects
of
the Act. Read with the wide definition of "environment" in Section 2(a),
Sections 3
and 5 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, the said powers will include
giv.ng directions
for the removal of sludge, for undertalCing remedial measures and also the
power to impose the cost of remedial measures
on the offending industry
B
c
and utilise the amount so recovered for carrying out remedial measures.
This Court can certainly give directions to the Central Government/its
D
delegate to take all such measures, if in a given case this Court finds that
such directions are warranted. We find that similar directions have
been
made in a recent decision of this Court in
In di.an Council for Enviro-Legal
Action and Ors. [supra). That was also a writ petition filed under Article
32 of the Constitution. Following
is the direction:
"It appears that the Pollution Control Board had identified as many
as 22 industries responsible for the pollution caused by discharge
of their effluents into Nakkavagu. They were responsible to com
pensate to farmers. It was the duty
of the State Government to
ensure that this amount was recovered from the industries
and
paid to the farmers."
It is, therefore, idle to contend that this Court cannot make appropriate
directions for the purpose of ensuring remedial
action_ It is more a matter
of form.
Sri
KN. Bhat submitted that the rule of absolute liability is not
accepted in England or other Commonwealth countries
and that the rule
evolved by the House of Loards in
Rylands v. Fletcher, (1866) 3 H.L.
330
E
F
G
is the correct rule to be applied in such matters. Firstly, in view of the
binding decision of this Court in Oleum Gas Leak case, this contention is H
544 SUPREME COURT REPORTS [1996) 2 S.C.R. '
A untenable, for the said decision expressly refers to the rule in Rylands but
refuses to apply
it saying that it is not suited to the conditions in India.
Even so, for the sake of completeness, we may discuss the rule in
Rylands
B
c
D
· and indicate why that rule is inappropriate and unacceptable in this
country. The rule was first stated
by Blackburn, J. [Court of Exchequer
Chamber] in the following
words: "We think that the true rule of law is, that the person who for his
own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his
peril, and, if he does not do
so, is prima facie answerable for all
the damage which is the natural consequence of its escape.
He can
excuse himself by shewing that the escape was owing to the
plaintiffs default; or perhaps that the escape was the consequence
of
vis major, or the act of God; ........ and it seems but reasonable
and just that the neighbour, who has brought something on his own
property which was not naturally there, harmless to others so long
as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbour's, should be obliged to make
good the damage which ensues if he does not succeed in confining
it to his own
property."
E The house of Lords, however, added a rider to the above statement,
viz., that the user by the defendant should be a "non-natural" user to attract
the rule. In other words, if the user by the defendant
is a natural user of
the land, he would not be liable for damages. Thus, the twin tests -apart
from the proof of damage to the plaintiff by the act/negligence of the
F defendants -which must be satisfied to attract this rule are
"foreseeab~lity"
and "non-natural" user of the land.
The rule in
Rylands has been approved by the House of Lords in the
recent decision in
Cambridge Water Company v. Eastem Counties Leather,
PLC, (1994) 2 W.L.R. 53. The plaintiff, Cambridge Water Company, was
G a statutory corporation engaged in providing public water supply within a
certain area including the city of Cambridge.
It was lifting water from a
bore well situated at some distance from Sawstyn. The defendant-company.
Eastern Leather,
was having a tannery in Sawstyn. Tanning necessarily
involves degreasing of pelts. For that purpose, the defendant was using an
H organo chlorine called
P.C.E. P.C.E. was stored in a tank in the premises
... -..... -
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INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.O.I. [B.P. JEEV AN REDDY,J.) 545
of the defendant. The plaintiffs case was that on account of the P.C.E.
percolating into the ground, the water in its well became contaminated and
unfit for human consumption and that on that account it
was obliged to
find an alternative source at a substantial cost.
It sued the defendant for
the resulting damages: The plaintiff based
his claim on
three alternative
grounds, viz., negligence, nuisance and the rule in Rylands. The Trial Judge
(High Court) dismissed the action in negligence and nuisance holding that
the defendant could not have reasonably foreseen that such damage could
occur
to the plaintiff.
So far as the rule in Rylands was concerned, the Trial
Judge held that the user by the defendant
was not an non-natural user and
hence,
it was not liable for damages.
On appeal, the Court of Appeal
declined to decide the matter on the basis of the rule in Rylands. It relied
strongly upon the ratio in
Ballard v. Tomlinson, (1885) 29 Ch. D. 115
holding that no person having a right to use a common source is entitled
to contaminate that source
so as to prevent his neighbour from having a
full value of his right of appropriation. The Court of Appeal also opined
A
B
c
that the defendant's use of the land was not a natural use.
On appeal by D
the defendant, the House of Lords allowed the appeal holding that
foreseeability of the harm of the relevant type by the defendant was a
pre-requisite to the right to recover damages both under the heads
of
nuisance and also under the rule in Rylands and since that was not
established
by the plaintiff, it has to fail. The House of Lords, no doubt,
held that the defendant's use of the land was a non-natural use
but
dismissed the suit,
as
st~ted above, on the ground that the plaintiff has failed
E
to establish that pollution of their water supply by the solvent used by the
defendant in his premises was in the circumstances
of the case f orseeable by
the defendant.
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 Bwnie
P01t
Auth01ity v. General Jones Pty Ltd., (1994) 68 Australian Law Journal 331.
F
The respondent, General Jones Limited, had stored frozen vegetables in
three cold storage rooms in the building owned
by the appellant, Burnie G 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 H
546 SUPREME COURT REPORTS [1996) 2 S.C.R.
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
B
c
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 substances 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
D 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 Authoiity owed a non-
E delegable duty of care to
General Jones to ensure that its contractor took
reasonable steps to prevent the occwTence
of a fire and the breach of that
duty attracted liability pursuant to the
ordina1y principles of negligence for the
damage sustained by the respondent.
F
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 is by far the more
appropriate one -apart
fro~ the fact that it is binding upon us. [We have
G disagreed with the view that the law stated in the said decision is obiter. J
According to this rule, once· the activity carried on is hazardous or in
herently dangerous, the person carrying
ort such activity is liable to make
good the loss caused to any other person
by his activity
imspective of the
fact whether he took reasonable care while carrying on his activity. The
. H rule is premised upon the very nature of the activity carried on. In the
...,.,
-
-
INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.I. (B.P.JEEVANREDDY,J.] 547
words of the Constitution Bench, such an activity "can be tolerated only on A
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 his was foreseeable by the enterprise.
B
c
Once the law in Oleum Gas Leak case is held to be the law ap
plicable, 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
D
measures to remove the
sludge and other pollutants lying in the affected
area
[by affected area, we
!!lean 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 confers upon
the Central Government the power to
give directions or 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.
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
E
F
G
role of government to meet the costs involved in either prevention
· H
A
B
c
D
E
F
G
1
548 SUPREME COURT REPORTS [1996] 2 S.C.R.
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
[OECDJ 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 in
dustrialised society.
Since then there has been considerable dis
cussion 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 satisfactory
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.C328/1) 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 130R(2) of the Treaty states that environmental
considerations are to play a part in all the policies of the Com
munity, and that action
is to be based on three principles : the
need for preventative action; the need for environmental damage
to the 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.
Section 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 ap-
H propriate that the task of determining the amount required for carrying out
t
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'
).
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.L [B.P. JEEVAN REDDY, J.) 549
the remedial measures, its recovery/realisation and the task of undertaking A
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.
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
th~ sludge -in and around the complex of
B
c
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 D
now with notice to the responde.nts, which amount should be paid to
Central Government and/or recovered from them
by the Central Govern
ment.
Other directions are also called for in the light of the facts and
circumstances mentioned above.
E
CONCLUSIONS :
~ From the affidavits of the parties, Orders of this Court, technical
--
Reports and other data, ref erred 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 manufac
tured about
375 MT of 'H' acid during the years 1988-89. This had given
rise to about
8250 rn3 of waste water and 2440 tonnes of sludge [both
iron-based and gypsum-based]. The waste water had partly percolated into
F
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 G
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 H
)
.550 SUPREME COURT REPORTS
.z
[1996) 2 S.C.R.
A the entire quantity of sludge is untrue.
B
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 instal any equipment for treatment of highly toxic effluents dis
charged by them. They continued to function even after and inspite 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]. Inspite of repeated Reports of officials and
C 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 respon-
D dent 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,
E 1995. An assertion is made before us that permanent E.T.P. has also been
constructed for the Sulfuric 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.
F
(III) The damage caused by the untreated highly toxic wastes result
ing from the production of
'H' acid -and the continued discharge of highly
toxic effluent from the Sulphuric Acid
Plant, flowing through the sludge
[H-acid waste] -
is undescribable. It has inflicted untold misery upon the
villagers and long lasting damage to the
soil, to the uncerground water and
G 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
H that area i.s not fit for consumption either by human beings or cattle. It has
•
1-·
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'
....._ INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. [B.P. JEEVAN REDDY, J.) 551
seriously affected the productivity of the land. According to NEERI. A
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 wastes discharged by
Respondents Nos. 4 to
8, i.e., production of 'H' acid. The Report of the
environment experts dated November
1, 1993 has already been referred to
hereinbefore. Indeed, several orders of this Court referred to
supra are also
based upon the said finding.
B
c
(V) Sections 3 and 5 of the Environment
(Protection) Act, 1986,
apart from other provisions of Water and Air Acts, empower the Govern
ment 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
D
Section 2(a) of the Environment
[Protection] Act. This power includes the
power to prohibit an activity, close an inqustry, direct and/or carry out
remedial measures, and wherever necessary impose the cost of remedial
measures upon the offending industry. The principle "Polluter Pays" has
gained almost universal recognition, apart from the fact that it is stated in
E
absolute terms in Oleum Gas Leak case. The law declared in the said
decision
is the law governing this case.
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
F
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
G
of 'H' acid and the discharges from the Sulphuric Acid
Plant of Respon
dents 4 to
8. Chapters-VI and VII in NEER! Report [submitted in 1994]
shall be deemed to be the show-cause notice issued by the Central Govern
ment 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
H
)
552 SUPREME COURT REPORTS -
[1996] 2 S.C.R.
A Secretary, Ministry of Environment and Forests, Government of fodia,
[M.E.F.] The Secretary shall thereupon determine the amount in consult
ation with the experts of his Ministry within
six weeks of the submission of
the explanation by the said Respondents. The order passed
by the
Secretary, [M.E.F.] shall be communicated to Respondents 4 to 8 -and all
B
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 these proceedings, the
Secretary, [M.E.F.] and Respondents 4 to 8 shall proceed on the assump
tion that the affected area
is
350 ha, as indicated in the sketch at Page 178
C 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 immov
able 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
D 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 aliowed to
flow through
E 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, un,suspecting villagers, despoiling
F their land, their water sources and their entire environment .. all in pur
suance of their private profit. ·They have forfeited all claims for any
consideration
by this Court. Accordingly, we herewith
order the closure of
all the piants and factories of Respondents 4 to 8 lo.cated in Bichhri village.
The R.P.C.B. is directed to seal all the factories/units/plants of the said
G respondents forthwith. So far as the Sulphuric Acid Plant is c0ncerned, it
will be closed at the end of one week from· today, within which period
Respondent
No. 4
sh'l-ll 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
H end of one week from today. The re-opening of these plants shall depend
--
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.) 553
upon their compliance with the directions made and obtaining of all A
requisite permissions and consents from the relevant authorities. Respon
dents 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
Jonna pauperis, the
State of Rajasthan shall not oppose their
applications for leave to sue in
Jonna paupe1is.
B
c
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 dis
tinction 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, D
should be allowed to be established only after taking into consideration all
the environmental aspects and their functioning should be monitored close-
ly 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 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 tliis Court with respect to the progress in the implementa
tion of Directions 1 to 4 aforesaid.
6. The suggestion for establishment of environment courts is a com-
mendable
one. The experience shows that the prosecutions launched in
ordinary criminal courts under the provisions of the Water Act,
Air Act
E
F
G
and Environment Act never reach their conclusion either because of the
work-load
in those courts or because their is no proper appreciation of the
significance of the environment matters on the part of those in charge of
H
<
I
A_
554 SUPREME COURT REPORTS (1996) 2 S.C.R.
A 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 im-
B
c
plementation . of their orders. All this points to the need for creating
environment courts 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 indepth 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 heads 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 environ-
D
mental audit by specialist bodies created on a permanent basis with power
to inspect, check and take necessary action not only against erring in
dustries 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 ul-
E timate idea is to integrate and balance the concern for environment with
the need for industrialisation. and technological progress.
F
G
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 fur
therance of public interest. The said sum
shall be deposited' iii this Court
within two weeks from today.
It shall be paid over to the petitioner.
Writ Petition (C)
No. 967of1989 is allowed with the above directions
with costs as specified hereinabove.
WRIT PETITION (C) NO. 76 OF 1994:
In view of the decision in Writ Petition (C) No. 967 of 1989, the writ -
petition
is dismissed.
H No costs.
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.) 555
WRIT PETITION (C) NO. 94 OF 1990 :
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 accord
ingly dismissed.
No costs.
WRIT
PE.TIT/ON (C) NO. 824 OF 1993:
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 accord-
A
B
ingly dismissed. c
No costs.
v.s.s. Petition dismissed.
The landmark Supreme Court ruling in Indian Council for Enviro-Legal Action v. Union of India (1996) stands as a cornerstone of Indian environmental jurisprudence, firmly cementing the Polluter Pays Principle into the nation's legal fabric. This pivotal judgment, now meticulously indexed on CaseOn, redefined corporate responsibility for environmental damage and championed the fundamental right to a clean and healthy environment, as enshrined in Article 21 of the Constitution. The case serves as a stark reminder of the devastating impact of unchecked industrial pollution and the judiciary's vital role in holding powerful entities accountable.
The case originated from a social action litigation filed by the Indian Council for Enviro-Legal Action, an environmentalist organization, on behalf of the residents of Bichhri, a small village in Udaipur, Rajasthan. The villagers' lives and livelihoods were shattered by the reckless operations of several private chemical industries (Respondents 4 to 8). These factories, primarily engaged in producing hazardous chemicals like 'H' acid, operated without the requisite permits, clearances, or effluent treatment plants.
The manufacturing process generated thousands of tons of highly toxic iron-based and gypsum-based sludge, along with corrosive 'mother liquor.' This hazardous waste was indiscriminately dumped in and around the factory complex. The toxic effluents were allowed to flow freely, percolating deep into the earth. The consequences were catastrophic: the groundwater and local streams turned dark and poisonous, rendering the water unfit for human or cattle consumption and the soil barren for cultivation. The pollution led to widespread disease, death, and the complete collapse of the village economy.
The Supreme Court was faced with a complex situation involving blatant corporate negligence, regulatory failure, and a severe infringement of the villagers' fundamental rights.
The Court drew upon a robust legal framework to address these issues:
Analyzing the intricate legal arguments and the evolution from strict to absolute liability in rulings like this can be time-consuming. This is where legal tech platforms like CaseOn.in become invaluable. Their concise, 2-minute audio briefs on judgments such as Indian Council for Enviro-Legal Action v. UoI allow legal professionals to quickly grasp the core principles and judicial reasoning, saving critical hours of research.
The Court systematically dismantled the respondents' arguments and established their culpability based on overwhelming evidence from expert bodies like the National Environmental Engineering Research Institute (NEERI).
The Supreme Court, finding the industries to be "rogue industries" that showed contempt for the law, delivered a powerful and decisive judgment:
In essence, the Supreme Court in Indian Council for Enviro-Legal Action v. Union of India established a new paradigm for environmental justice in India. It took a stand for a poor, voiceless community against powerful industrial polluters. By upholding the Absolute Liability and Polluter Pays principles, the Court sent a clear message: environmental degradation for private profit is unacceptable, and those who pollute will be held financially and legally accountable for restoring the damage they cause. The judgment empowered government bodies to take punitive action and affirmed the judiciary's role as the ultimate guardian of the people's fundamental right to a clean environment.
This case is essential reading for anyone in the legal field for several reasons:
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. The content is a summary and analysis of a court judgment and should not be used as a substitute for professional legal consultation.
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