petitioner: vellore citizens welfare forum vs. respondent: union of india & ors. date of judgment: 28/08/1996 j u d g m e n t kuldip singh, j.. this petition - public interest - under article 32 of the constitution of india has been filed by vellore citizens welfare forum and is directed against the pollution which is being caused by enormous discharge of untreated effluent by the tanneries and other industries in the state of tamil nadu. it is stated that the tanneries are discharging untreated effluent into agricultural fields to, road-sides,water ways and open lands. the untreated effluent is finally discharged in river palar which is the main source of water supply to the residents of the area. according to the petitioner the entire surface and sub-soil water of river palar has been polluted resulting in non availability potable water to the residents of the area. it is stated that the tanneries in the state of tamil nadu have caused environmental degradation in the area. according to the preliminary survey made by the tamil nadu agricultural university research center vellore nearly 35,000 hectares of agricultural land in the tanneries belt, has become either partially or totally unfit for cultivation. it has been further stated in the petition that the tanneries use about 170 types of chemicals in the chrome tanning processes. the said chemicals include sodium chloride, lime, sodium sulphate, chlorium sulphate, fat liquor amonia and sulphuric acid besides dyes which are used in large quantities. nearly 35 litres of water is used for processing one kilogram of finished leather, resulting in dangerously enormous quantities of toxic effluents being let out in the open by the tanning industry. these effluents have spoiled the physico-chemical properties of the soil, and have contaminated ground water by percolation. according to the petitioner an independent survey conducted by peace members, a non governmental organisation, covering 13 villages of dindigal and peddiar chatram anchayat unions, reveals that 350 wells out of total of 467 used for drinking and irrigation purposes have been polluted. women and children have to walk miles to get drinking water. legal aid and advice board of tamil nadu requested two lawyers namely, m.r, ramanan and p.s.subramanium to visit the area and submit a report indicating the extent of pollution caused by the tanneries. relevant part of the report is as under : "as per the technical report dated 28.5.1983 of the hydrological investigations carried out in solur village near ambur it was noticed that 176 chemicals including acids were contained in the tannery effluents. if 40 litres of water with chemicals are required for one kilo of leather, with the production of 200 tons of leather per day at present and likely to be increased multifold in the next four to five years with the springing up of more tanneries like mushroom in and around ambur town, the magnitude of the effluent water used with chemicals and acids let out daily can be shockingly imagined. ..... the effluents are let out from the tanneries in the nearby lands, then to goodar and palar rivers. the lands, the rivulet and the river receive the effluents containing toxic chemicals and acids. the sub soil water is polluted ultimately affecting not only arable lands, wells used for agriculture but also drinking water wells. the entire ambur town and the villages
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petitioner:vellore citizens welfare forum
vs.
respondent:union of india & ors.
date of judgment: 28/08/1996 j u d g m e n t
kuldip singh, j.. this petition - public interest - under article 32 of the constitution of india has been filed by vellore citizens welfare forum and is directed against the pollution which isbeing caused by enormous discharge of untreated effluent by the tanneries and other industries in the state of tamil nadu. it is stated that the tanneries are discharginguntreated effluent into agricultural fields to, road-sides,water ways and open lands. the untreated effluent is finally discharged in river palar which is the main source of watersupply to the residents of the area. according to the petitioner the entire surface and sub-soil water of river palar has been polluted resulting in non availability potable water to the residents of the area. it is stated that the tanneries in the state of tamil nadu have caused environmental degradation in the area. according to the preliminary survey made by the tamil nadu agricultural university research center vellore nearly 35,000 hectares of agricultural land in the tanneries belt, has become either partially or totally unfit for cultivation. it has been further stated in the petition that the tanneries use about 170 types of chemicals in the chrome tanning processes. thesaid chemicals include sodium chloride, lime, sodium sulphate, chlorium sulphate, fat liquor amonia and sulphuric acid besides dyes which are used in large quantities. nearly 35 litres of water is used for processing one kilogram of finished leather, resulting in dangerously enormous quantities of toxic effluents being let out in the open by the tanning industry. these effluents have spoiled the physico-chemical properties of the soil, and have contaminated ground water by percolation. according to the petitioner an independent survey conducted by peace members,a non governmental organisation, covering 13 villages of dindigal and peddiar chatram anchayat unions, reveals that 350 wells out of total of 467 used for drinking and irrigation purposes have been polluted. women and children have to walk miles to get drinking water. legal aid and advice board of tamil nadu requested two lawyers namely, m.r, ramanan and p.s.subramanium to visit the area and submit a report indicating the extent of pollution caused by the tanneries. relevant part of the report is as under : "as per the technical report dated 28.5.1983 of the hydrological investigations carried out in solur village near ambur it was noticed that 176 chemicals including acids were contained in the tannery effluents. if 40 litres of water with chemicals are required for one kilo of leather, with the production of 200 tons of leather per day at present and likely to be increased multifold in the next four to five years with the springing up of more tanneries like mushroom in and around ambur town, the magnitude of the effluent water used with chemicals and acids let out daily can be shockingly imagined. ..... the effluents are let out from the tanneries in the nearby lands, then to goodar and palar rivers. the lands, therivulet and the river receive the effluents containing toxic chemicals and acids. the sub soil water is polluted ultimately affecting not only arable lands, wells used for agriculture but also drinking water wells. the entire ambur town and the villages
situated nearby do not have good drinking water. some of the influential and rich people are able to get drinking water from a far off place connected by a few pipes. during rainy days and floods, the chemicals deposited into the rivers and lands spread out quickly to other lands. the effluents thus let out, affect cultivation, either crops do not come up at all or if produced the yield isreduced abnormally too low. ........ the tanners have come to stay. the industry is a foreign exchange earner.but one moot point is whether all the cost of the lives of lakhs of people with increasing human population the activities of the tanneries should be encouraged on monetary considerations. we find that the tanners have absolutely no regard for the healthy environment in and around their tanneries. the effluents discharged have been stored like a pond openly in the most of the places adjacent to cultivable lands with easy access for the animals and the people. the ambur municipality, which can exercise its powers as per the provisions of the madras district municipalities act (1920) more particularly under sections 226 to 231, 249 to 253 and 338 to 342 seems to be a silent spectator probably it does not want to antagomise the highly influential and stupendously rich tanners. the powers given under section 63 of the water prevention and control of pollution act 1974 (6 of 1974) have not been exercised in the case of tanneries in ambur and the surrounding areas."alongwith the affidavit dated july 21, 1992 filed by deputy secretary to government, environment and forests department of tamil nadu, a list of villages affected by thetanneries has been attached. the list mentions 59 villages in the three divisions of thirupathur, vellore and ranipath.there is acute shortage of drinking water in these 59 villages and as such alternative arrangements were being made by the government for the supply of drinking water.in the affidavit dated january 9, 1992 filed by member secretary, tamil nadu pollution control board (the board), it has been stated as under :"it is submitted that there are 584 tanneries in north arcot ambedkar district vide annexure 'a' and 'd'.out of which 443 tanneries have applied for consent of the board.the government were concerned with the treatment and disposal of effluent from tanneries. the government gave time upto 31.7.1985 to tanneries to put up effluent treatment plant (e.t.p.). so far 33 tanneries in north arcot ambedkar district have put up effluent treatment plant.the board has stipulated standards for theeffluent to be disposed by the tanneries." the affidavits filed on behalf of state of tamil nadu and the board clearly indicate that the tanneries and other polluting industries in the state of tamil nadu are being persuaded for the last about 10 years to control the pollution generated by them. they were given option either to construct common effluent treatment plants for a cluster of industries or to set up individual pollution control devices. the central government agreed to give substantial subsidy for the construction of common effluent treatment plants (cetps). it is a pity that till date most of the tanneries operating in the state of tamil nadu have not taken any step to control the pollution caused by the discharge of effluent. this court on may 1, 1995 passed a detailed order. in the said order this court noticed various earlier orders passed by this court and finally directed as under : "mr. r. mohan, learned senior counsel for the tamil nadu pollution control board has placed before us a consolidated tatement dividing the 553 industries into three parts. the first part in statement no.1 and the second part in statement no.2 relate to those tanneries who have set up the effluent treatment plants either individually or collectively to the satisfaction of the tamil nadu pollution control board. according to the report placed on the record by the board, these industries in statements 1 and 2 have not achieved the standard or have not started functioning to the satisfaction of the board. so far as the industries in statements 1 and 2 are concerned, we give them
three months notice from today to complete the setting up of effluent treatment plant (either individually or collectively) failing which they shall be liable to pollution
fine on the basis of their past working and also liable to be closed. we direct the tamil nadu pollution control board to issue individual notices to all these industries within two weeks from today. the board is also directed to issue a general notice on
three consecutive days in a local newspaper which has circulation in the district concerned. so far as the 57 tanneries listed in statement iii (including 12 industries who have filed writ petition, nos. of which have been given above) are concerned, these units have not installed and commissioned the effluent treatment plants despite various orders issued by this court from time to time. mr. r. mohan, learned senior counsel appearing for tamil nadu pollution control board states that the board has issued separate notices to these units directing them to set up the effluent treatment plants. keeping in view the fact that this court has been monitoring the matter for the last about four years and various orders have been issued by this court from time to time, there is no justification to grant any further time to these industries. we, therefore, direct the- 57 industries listed hereunder to be closed with immediate effect. ...... we direct the district collector and the senior superintendent of police of the district to have our orders complied with immediately. both these officers shall file a report in this court within one week of the receipt of the order. we give opportunity to these 57 industries to approach this ' court as and when any steps towards the setting up of effluent treatment plants their plants and their commissioning have been taken by these industries. if any of the industries wish to be relocated to
some other area they may come out with a proposal in that respect : on july 28,1995 this court suspended the closure orderin respect or seven industries mentioned therein for aperiod of eight weeks. it was further observed as under: "mr. g . ramaswamy, learned senior advocate appearing for some of the tanneries in madras states that the setting up of the effluent treatment plants is progressing satisfactorily. according to him several lacs have already been spent and in a short time it would start operating. mr. mohan, learned counsel for the tamil nadu pollution control board will inspect that project and file a report by 3rd august, 1995". this court on september 8, 1995 passed the followingorder : "the tamil nadu pollution control board relates to about 299 industries stated by m.g. ramaswamy, mr. kapil sibal and mr. sanghi, learned senior advocates appearing f for these industries, that the setting up of projects is in progress. according to the learned counsel tamil nadu leather development corporation (talco) is in charge of the project. the learned counsel state that the project shall be completed in every respect within 3 months from today. the details of these industries and the projects undertaken by talco as per list no. i is as under...... we are of the view that it would be in the interest of justice to give a little more time to these industries to complete the project. although the industries have asked time for three months, we give them time till 31st december, 1995. we make it clear that in case the projects are not completed by that time, the industries shall be liable to be to be closed forthwith. apart from that, these industries shall also be liable to pollution fine for the
past. period during which they had been operating. we also take this opportunity to direct talco to take full interest in these projects and have the projects completed within the time granted by us. mr. kapil sibal, learned counsel appearing for the tanneries, stated that council, for indian finished leather manufacturers export association is a body which is collecting 5% on all exports. this body also helps the tanneries in various respect. we issue notice to the association to be present in this court and assist this court in all the matters pertaining to the leather tanneries in madras. mr. sampath takes notice . so far as list no. ii is concerned, it relates to about 163 tanneries (except m/s. vibgyor tanners & co., kailasagiri roads, mittalam-635 811 ambur (via), the pollution control board has inspected all these tanneries and placed its report before us. according to the report mosts of these tanneries have not even started primary work at spot. some of them have not even located the land. the tanneries should have themselves set, up the pollution control devices right at time when they started working. they have not done so. they are not even listening to various orders passed by this court from time to time during the last more than 2 years. it is on the record that these tanneries are polluting the area. even the water around the area where they are operating is not worth drinking. we give no further time to these tanneries. we direct all the following tanneries which are numbering about 162 to be closed with immediate effect. it may be mentioned that this court suspended theclosure orders in respect of various industries from time totime enable the said industries to install the pollutioncontrol devices.
this court by the order dated october 20, 1995 directedthe national environmental engineering research institute,nagpur (neeri) to send a team of experts to examine, inparticular, the feasibility of setting up of cetps forcluster of tanneries situated at, different places in, thestate of tamil nadu where the work of setting up of thecetps has not started and also to inspect the existing cetpsincluding those where construction work was in progress .neeri submitted its first report on december 9, 1995 and thesecond report on february 12, 1996. this court examined thetwo reports and passed the following order on april 9, 1996: "pursuant to this court's order dated december 15, 1955, neeri has submitted final examination report dated february 12, 1996, regarding cetps constructed/under construction by the tanneries in various districts of the state of tamil nadu. a four member team constituted by the director, neerj inspected the cetps from january 27 to february 12, 1996. according to the report, at present, 30 cetps sites have been identified for tannery clusters in the five districts of tamil nadu viz., north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r. all the 30 cetps are inspected by the team. according to the report, only 7 cetps are under operation, while 10 are under construction and 13 are proposed. the following 7 etps are under operation: 1. m/s. talco ranipet tannery effluent treatment co. ltd. ranipet, dist. north arcot ambedkar. 2. m/s. talco ambur tannery effluent treatment co. ltd., thuthipet sector, ambur dist. north arcot ambedkar. 3. m/s. talco vaniyambadi tanners enviro control systems ltd., vaniyambattu, vaniyambadi, dt. north arcot. 4. m/s. pallavaram tanners industrial effluent treatment co., chrompet area, dist. chengai) mgr. 5. m/s. ranipet sidco finished
leather effluent treatment co. pvt. ltd., ranipet, dist. north arcot ambedkar. 6. m/s. talco vaniyambadi tanners enviro control systems ltd. udayendiram, vaniyambadi, dist. north arcot ambedkar. 7. m/s. talco pernambut tannery effluent treatment co. ltd., bakkalapalli, pernambut, dist. north arcot ambedkar. the cetps mentioned at sl. nos. 5, 6 & 7 were commissioned in january, 1996 and were on the date of report passing through stabilization period. the report indicates that so far as the above cetps are concerned, although there is improvement in the performance they are still not operating at their optimal level and are not meeting the standards as laid down by the ministry of environment and forests and the tamil nadu pollution control board for inland surface water discharge. the neeri has given various recommendations to be followed by the above mentioned units. we direct the units to comply with the recommendations of neeri within two months from today. the tamil nadu pollution control board shall monitor the directions and have the recommendations of the neeri complied with. so far as the three units which are under stabilization, the neeri team may inspect the same and place a final report before this court within the period of two months. apart from the tanneries which are connected with the above mentioned 7 units, there are large number of other tanneries operating in the 5 districts mentioned above which have not set up any satisfactory pollution control devices. mr. mohan learned counsel for the tamil nadu pollution control board states that notices were issued to all those tanneries from time to time
directing them to set up the necessary pollution control devices. it is mandatory for the tanneries to set up the pollution control devices. despite notices it has not been done. this court has been monitoring these matters for the last about 4 years. there is no awakening or realisation to control the pollution which is being generated by these tanneries. the neeri has indicated the physico-chemical characteristics of ground water from dug wells near tannery clusters. according to the report, water samples show that well-waters around the tanneries are unfit for drinking. the report also shows that the that the quality of water in paler river down stream from the place where effluent is discharged, is highly polluted. we, therefore, direct that all the tanneries in the districts of north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r which are not connected with the seven cetps mentioned above, shall be closed with immediate effect. none of these tanneries shall be permitted to operate till the time the cetps are constructed to the satisfaction of the tamil nadu pollution control board. we direct the district magistrate and the superintendent of police of the area concerned, to have all these tanneries closed with immediate effect. mr. mehta has placed on record the report of tamil nadu pollution control board. in statement i of the index, there is a list of 30 industries which have also not been connected with any cetps. according to the report, these industries have not, till date set up pollution control devices. we direct the closure of these industries also. list is as under. ..... the tamil nadu pollution control] board has filed
another report dated january 18, 1996 pertaining to 51 tanneries. there is dispute regarding the permissible limit of the quantity of total dissolved solids (tds). since the neeri team is visiting these tanneries, they may examine the tds aspect also and advise this court accordingly. meanwhile, we do not propose to close any of the tannery on the ground that it is discharging more than 2001 tds. the report indicates that except the 17 units, all other units are non-complaint units in the sense that they are not complying with the bod standards. excepting these 17 industries the remaining 34 tanneries listed hereunder are directed to be closed forthwith. ..... we direct the district magistrate and the superintendent of the police of the area concerned to have all these industries mentioned above closed forthwith the tanneries in the 5 districts of tamil nadu referred to in this order have been operating for a longtime. some of the tanneries are operating for a period of- more than two decades. all this period these tanneries have been, polluting the area. needless to say that the total environment in the area has been polluted the area. needless issue show cause notice to these industries through their learned counsel who are present in court why they be not subjected to heavy pollution fine. we direct the state of tamil nadu through the industry ministry, the tamil nadu pollution central board and all other authorities concerned and also the government of india through the ministry of environment and forests not to permit the setting up of further tanneries in the state of tamil nadu. copy of this order be communicated to the concerned authorities within
three days. to come up for further consideration after the replies to the show cause. there are large number of tanneries in the state of tamil nadu which have set up individual pollution control devices and which according to the tamil nadu pollution control board are operating satisfactorily. the fact however remains that all these tanneries are discharging the treated efficient within the factory precinct itself. we direct neeri team which is visiting this area to find out as to whether the discharge of the effluent on the land within the factory premises is permissible environmentally. m/s. nandeem tanning company, valayampet vaniyambadi is one is one of such industries. copy of the report submitted by the tamil nadu pollution control board be forwarded to the neeri. neeri may inspect this industry within ten days and file a report in this court. copy of this order be communicated to neeri. matter regarding distilleries in the state of tamil nadu. the tamil nadu pollution control board has placed on record the factual report regarding distilleries mentioned in page 4 of the index of its report dated april 5, 1996. learned counsel for the board states that the board shall issue necessary notices to these industries to set up pollution control devices to the satisfaction of the board, failing which these distilleries shall be closed. the pollution control board shall place a status report before this court." the neeri submitted two further reports on may 1, 1996and june 11, 1996 in respect of cetps set up by variousindustries. the neeri reports indicate that the physico-chemical characteristics of ground water from dug wells inranipath, thuthipath, valayambattu, vandyambadi and variousother places do not conform to the limits prescribed fordrinking purposes.
this court has been monitoring this petition for almostfive years. the neeri, board and the central pollutioncontrol board (central board) have visited the tanning andother industries in the state of tamil nadu for severaltimes. these expert bodies have offered all possibleassistance to these industries. the neeri reports indicatethat even the seven operational cetps are not functioning toits satisfaction. neeri has made several recommendations tobe followed by the operational cetps. out of the 30 cetp-sites which have been identified for tannery clusters in thefive districts of north arcot ambedkar, erode periyar,dindigul anna, thrichi and chengai mgr. are under operation10 are under construction and 13 are proposed. there arelarge number of tanneries which are not likely to beconnected with any cetp and are required to set up pollutioncontrol devices on their own. despite repeated extensionsgranted by this court during the last five years and priorto that by the board the tanneries in the state of tamilnadu have miserably failed to control the pollutiongenerated by them. it is no doubt correct that the leather industry inindia has become a major foreign exchange earner and atpresent tamil nadu is the leading exporter of finishedleather accounting for approximately 80% of the country'sexport. though the leather industry is of vital importanceto the country as it generates foreign exchange and providesemployment avenues it has no right to destroy the ecology,degrade the environment and pose as a health hazard. itcannot be permitted to expand or even to continue with thepresent production unless it tackles by itself the problemof pollution created by the said industry. the traditional concept that development and ecologyare opposed to each of her, is no longer acceptable."sustainable development is the answer. in the internationalsphere "sustainable development" as a concept came to beknown for the first time in the stockholm declaration of1972. thereafter, in 1987 the concept was given a definiteshape by the world commission on environment and developmentin its report called court common future. the commission waschaired by the then prime minister of norway ms. g.h.brundtland and as such the report is popularly known as"brundtland report" 1991 the world conservation union,united nations environment programme and world wide fund fornature, jointly came out with a document called "caring forthe earth" which is a strategy for sustainable living.finally, came the earth summit held in june, 1992 at riowhich saw the largest gathering of world leaders ever in thehistory - deliberating and chalking out a blue pring for thesurvival of the planet. among the tangible achievements ofthe rio conference was the signing of two conventions, oneon biological diversity and another on climate change. these
conventions were signed by 153 nations. the delegates alsoapproved by consensus three non binding documents namely, astatement on forestry principles a declaration of principleson environmental policy and development and initiatives andagenda 21 a programme of action into the next century inareas like poverty, population and pollution. during the twodecades from stockholm to rio "sustainable development" andcame to be accepted as a viable concept to eradicate povertyand improve the quality of human life while living withinthe carrying capacity of the supporting eco-systems."sustainable development: as defined by the brundtlandreport means "development that meets the needs of thepresent without compromising the ability of the futuregenerations to meet their own needs". we have no hesitationin holding that "sustainable development' as a balancingconcept between eclogy and development has been accepted asa part of the customary international law though its salientfeature have yet to be finalised by the international lawjurists. some of the salient principles of "sustainabledevelopment", as culled-out from brundtland report and otherinternational documents, are inter-generational equity, useand conservation of nature resources, environmentalprotection, the precautionary principle, polluter paysprinciple, obligation to assist and cooperate, eradicationof poverty and financial assistance to the developingcountries. we are, however, of the vies that "theprecautionary principle" and "the polluter pays" principleare essential features of "sustainable development". the"precautionary principle" - in the context of the municipallaw - means.(i) environment measures - by the state government and the statutory authorities must anticipate, prevent' and attack the causes of environmental degradation.(ii) where there are threats of serious and irreversible damage lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation.(iii)the "onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign. "the polluter pays" principle has been held to be asound principle by this court indian council for enviro-legal action vs. union of india j.t. 1996 (2) 196. the courtobserved, "we are of the opinion that any principle evolvedin this 'behalf should be simple practical and suited to theconditions obtaining in this country". the court ruled that"once the activity carried on is hazardous or inherentlydangerous, the person carrying on such activity is liable tomake good the loss caused to any other person by hisactivity irrespective of the fact whether he took reasonable
care while carrying on his activity. the rule is premisedupon the very nature of the activity carried on".consequently the polluting industries are "absolutelyliable to compensate for the harm causedby them tovillagers in the affected area, to the soil and to theunderground water and hence, they are bound to take allnecessary measures to remove sludge and other pollutantslying in the affected areas". the "polluter pays" principleas interpreted by this court means that the absoluteliability for harm to the environment extends not only tocompensate the victims of pollution but also the cost ofrestoring the environmental degradation. remediation of thedamaged environment is part of the process of "sustainabledevelopment" and as such polluter is liable to pay the costto the individual sufferers as well as the cost of reversingthe damaged ecology. the precautionary principle and the polluter paysprinciple have been accepted as part of the law of the land.article 21 of the constitution of india guaranteesprotection of life and personal liberty. articles 47, 48aand 51a(g) of the constitution are as under: "47. duty of the state to raise the level of nutrition and the standard of living and to improve public health. the state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48a. (g) protection and improvement of environment and safeguarding of forests and wild life. the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51a.(g) to protect and improve the natural environment including forests, takes, rivers and wild life, and to have compassion for living creatures." apart from the constitutional mandate to protect andimprove the environment there are plenty of postindependence legislations on the subject but more relevantenactments for our purpose are: the water (prevention and
control of pollution act 1974 (the water act), the air(prevention and control of pollution) act, 1981 (the airact) and the environment protection act 1986 (theenvironment act). the water act provides for theconstitution of the central pollution control board by thecentral government and the constitution of one statepollution control boards by various state governments in thecountry. the boards function under the control of thegovernments concerned. the water act prohibits the use orstreams and wells fordisposal of polluting matters. alsoprovides for restrictions on outlets and discharge ofeffluents without obtaining consent from the board.prosecution and penalties have been provided which includesentence of imprisonment. the air act provides that thecentral pollution control board and the state pollutioncontrol boards constituted under the later act shall alsoperform the powers and functions under the air act. the mainfunction of the boards, under the air act, is to improve thequality of the air and to prevent. control and abate airpollution in the country. we shall deal with the environmentact in the later part of this judgement. in view of the above mentioned constitutional andstatutory provisions we have no hesitation in holding thatthe precautionary principle and the polluter pays pcincipleare part of the environmental law of the country. even otherwise once these principles are accepted aspart of the customary international law there would be nodifficultly in accepting them as part of the domestic law.it is almost accepted proposition of law that the rule ofcustomary international law which are not contrary to themunicipal law shall be deemed to have been incorporated inthe domestic law and shall be followed by the courts of law.to support we may refer to justice h.r. khanna's opinion inaddl. distt. magistrate jabalpur vs shivakant shukla (air1976 sc 1207) jolly george varghese's case (air 1980 sc 470)and gramophone company's case (air 1984 sc 667). the constitutional and statutory provision protect apersons right to fresh air, clean water and pollution freeenvironment, but the source of the right is the inalienablecommon law right of clean environment. it would be useful toquote a paragraph from blackstone's commentaries on the lawsof england (commentaries on the laws of england of sirwillian blackstone) vol.iii, fourth edition published in1876. chapter xiii, "of nuisance" depicts the law on thesubject in the following words : "also, if a person keeps his hogs, or other noisome animals, 'or allows filth to accumulate on his premises, so near the house of another, that the stench incommodes him and makes the air unwholesome,
this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. a like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, sic utere "tuo, ut alienum non laedas;" this therefore is an actionable nuisance. 'and on a similar principle a constant ringing of bells in one's immediate neighbourhood may be a nuisance ....... with regard to other corporeal heriditaments; it is a nuisance to stop or divert water that used to run to another's meadow or mill; to corrupt or poison a water-course, by erecting a due house or a lime-pit, for the use of trade, in the upper part of the stream; 'to pollute a pond. from which another is entitled to water his cattle: to obstruct a drain; or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice of one's neighbour. so closely does the law of england enforce that excellant rule of gospel-morality, of "doing to others. as we would they should do unto ourselves ." our legal system having been founded on the britishcommon law the right of a person to pollution freeenvironment isa part of the basic jurisprudence of theland. the statement of objects and reasons to the environmentact, inter alia, states as under : "the decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life
support systems. the world community's resolves to protect and enhance the environmental quality found expression in the decisions taken at the united nations conference on the human environment held in stock hold in june, 1972. government of india participated in the conference and strongly voiced the environmental concerns. while several measures have been taken for environmental protection both before and after the conference, the need for a general legislation further to implement the decisions of the conference has become increasingly evident ...... existing lass generally focus on specific types of pollution or on specific categories of hazardous substances. somemajor areas of environmental hazardous are not covered. there also exist uncovered gaps in areas of major environmental hazards. there are inadequate linkages in handling matters of industrial and environmental safety. control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. because of a multiplicity of regulatory agencies, there is need for an authority which can. assume the lead role for studying, planning and implementing long-term requirements of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment ...... in view of what has been state above, there is urgent need for the enactment of a general legislation on environmental protection which inter alia, should enable co- ordination of activities of the various regulatory agencies, creation of an authority or
authorities with adequate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterent punishment to those who endanger human environment, safety and health". sections 3, 4, 5, 7 and 8 of the environment act whichare relevant are as under : "3. power of central government to take measures to protect and improve environment - (1) subject to the provisions of this act the central, government shall have till power to take all such measures as it deems necessary or expedient for the purpose of protecting improving the quality of the environment and preventing controlling and abating environmental pollution. (2) in particular, and without prejudice to the generality of the provisions of section (1), such measures may include measures with respect to all or any of the following matters, namely :- (i) co-ordination of actions by the state governments, officers and other authorities - (a) under tis act, or the rules made thereunder, or (b) under any other law for the time being in force which is relatable to the objects of this act; (ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution; (iii) laying down standards for the quality of environment in its various aspects; (iv) laying down standards for the emission or discharge of environmental pollutants from various sources whatsoever : provided that different standards
for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources : (v) restriction of areas in which any industries, operation or processes or class of industries, operations or processes shall not be carried out or shall be carried out object to certain safeguards; (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) lying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution; (x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, material or substances and giving, by order, of such direction to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; (xi) establishment or recognition or environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this act; (xii) collection and dissemination of information in respect of matters relating to environmental pollution; (xiii) preparation of manuals,
codes or guides relating to the prevention, control and abatement of environmental pollution; (xiv) such other matters as the central government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this act. (3) the central government may, if it considers it necessary or expedient so to do for the purposes of this act, by order, published in the powers and functions (including the power to issue directions under section 5 ) of the central government under this act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the central government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this act to exercise those powers or perform those functions or take such measures. 4. appointment or officers and their powers and functions (1) without prejudice to the provisions of sub-section (3) of section 3, the central government may appoint officers with such designations as it thinks fit for the purposes of this act and may entrust to them such of the powers and functions under this act as it may deem fit. (2) the officers appointed under sub-section (1) shall be subject to the general control and direction of the central government or, if so directed by that government, also of the authority or authorities, if any, constituted under sub-section (3) of section 3 of any other authority or officer".
5. power to give directions. - notwithstanding anything contained in any other law but subject to the provisions of this act, the central government may, in the exercise of its powers and performance of its functions under this act, issue direction in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. explanation. - for the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct --- (a) the closure, prohibition or regulation of any industry, operation or process; or (b) stoppage or regulation of the supply of electricity or water or any other service. 7. persons carrying on industry, operation etc. not to allow emission or discharge of environmental pollutants in excess of the standards. 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. 8. persons handling hazardous substances to comply with procedural safeguards. - no person shall handle or cause to be handled any hazardous substance except in accordance with such procedure end after complying with such safeguards as may be prescribed".rule 3(1), 3(2), and 5(1) of the environment (protection)rules 1986 (the rules) are as under: "3. standards for emission or discharge of environmental pollutants. - (1) for the purposes of protecting and improving the quality of the environmental and preventing and abating environmental pollution, the
standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in schedule i to iv). 3(2) notwithstanding anything contained in sb-rule(l), the control board or a state board may specify more stringent standards from those provided in (schedule to iv) in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons, therefore, in writing. 5. prohibition and restriction on the location of industries and the carrying on processes and operations in different areas - (1) the central government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations an different areas : (i) standards for quality of environment in its various aspects laid down for an area. (ii) the maximum allowable limits of concentration of various environment pollutants (including noise) for an area. (iii) the likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. (iv) the topographic and climatic features of an area. (v) the biological diversity of the area which, in the opinion of the central government, needs to be preserved. (vi) environmentally compatible land use. (vii) net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or
restricted. (viii) proximity to a protected area under the ancient monuments and archaeological sites and remains act, 1958 or a sanctuary, national park, game reserve or closed area notified, as such under the wild life (protection) act, 19/2, or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body. (ix) proximity to human settlements (x) any other factors as may be considered by the central government to be relevant to the protection of the environment in an area". it is thus obvious that the environment act containsuseful provisions for controlling pollution. the mainpurpose of the act is to create an authority or authoritiesunder section 3(3) of the act with adequate powers tocontrol pollution and protect the environment. it is a pitythat till date no authority has been constituted by thecentral government. the work which is required to be done byan authority in terms of section 3(3) read with otherprovision of the act is being done by this court and theother courts in the country. it is high time that thecentral government realises its responsibility and statutoryduty to protect the degrading environment in the country. ifthe conditions in the five districts of tamil nadu, wheretanneries are operating, are permitted to continue then inthe near future all rivers/canals shall be polluted,underground waters contaminated, agricultural lands turnedbarren and the residents of the area exposed to seriousdiseases. lt is, therefore, necessary for this court todirect the central government to take immediate action underthe provisions of the environment act. there are more than 900 tanneries operating in the fivedistricts of tamil nadu. some of them may, by now, haveinstalled the necessary pollution control measures, theyhave been polluting the environment for over a decade and insome cases even for a longer period. this court has invarious orders indicated that these tanneries are liable topay pollution fine. the polluters must compensate theaffected persons and also pay the cost of restoring thedamaged ecology. mr. m.c. mehta, learned counsel for the petitioner has
invited our attention to the notification goms no. 213 datedmarch 30, 1989 which reads are under :"order :- in the government order first read above, the government have ordered, among other things, that no industry causing serious water pollution should be permitted with in one kilometer from the embankments of rivers, streams, dams etc, and that the tamil nadu pollution control board should furnish a list of such industries to all local bodies. it has been suggested that it is necessary to have a sharper definition for water sources so that ephemeral water collections like rein water ponds, drains, sewerages (bio-degradable) etc. may be excluded form the purview of the above order. the chairman, tamil nadu pollution control board has stated that the scope of the government order may be restricted to reservoirs, rivers and public drinking water sources. he has also stated that there should be a complete ban on location of highly polluting industries within 1 kilometer of certain water sources. 2. the government have carefully examined the above suggestions. the government impose a total ban on the setting up of the highly polluting industries mentioned in annexure - i to this order ' within one kilometer from the embankments of the water sources mentioned in annexure-ii to this order. 3. the government direct that under any circumstance if any highly polluting industry is proposed to be set up within one kilometer from the embankments of water sources other than those mentioned in annexure-ii to this order, the tamil nadu pollution control board should examine the case and obtain the approval of the government for it".
annexure-i to the notification includes distilleries,tanneries, fertilizer, steel plants and foundries as thehighly polluting industries. we have our doubts whether theabove quoted government order is being enforced by the tamilnadu government. the order has been issued to controlpollution and protect the environment. we are of the viewthat the order should be strictly enforced and no industrylisted in annexure-l to the order should be permitted to beset up in the prohibited area. learned counsel for the tanneries raised an objectionthat the standard regarding total dissolved solids (tds)fixed by the board was no. justified. this court by theorder date april 9, 1996 directed the neeri to examine thisaspect and give its opinion. in its report dated june 11,1996 neeri has justified the standards stipulated by theboard. the reasoning of the neeri given in its report datedjune 11, 1996 is as under: "the total dissolved solids in ambient water have phisiological, industrial and economic significance. the consumer acceptance of mineralized water decreases in direct proportion to increased mineralization as indicated by bruvold (1). high total dissolved solids (tds), including chlorides and sulphates, are objectionable due to possible physiological effect and mineral taste that they impart to water. high levels of total dissolved solids produce laxative/cathartic/purgative effect in consumers. the requirement of soap and other detergents in household and industry is directly related to water hardness as brought out by deboer and larsen (2). high concentration of mineral salts, particularly sulphates and chlorides, are also associated with costly corrosion damage in wastewater treatment systems, as detailed by patterson and banker (3). of par particular importance is the tendency of scale deposits with high tds thereby resulting in high fuel consumption in boilers. the ministry of environment and forests (mef) has not categorically laid down standards for inland
surface water discharge for total dissolved solids (tds), sulphates and chlorides. the decision on these standards rests with the respective state pollution control boards as per the requirements based on local site conditions. the standards stipulated by the tnpcb are justified on the aforereffered considerations. the prescribed standards of the tnpcb for inland surfaces water discharge can be met for tannery wastewaters cost-effectively through proper implant control measures in tanning operation, and rationally designed and effectively operated wastewater treatment plants (etps & cetps). tables 3 and 5 depict the quality of groundwater in some areas around tanneries during peak summer period (june 3- 5, 1996). table 8 presents the data collection by tnpcb at individual etps indicating that tds, sulphates and chlorides concentrations are below the prescribed standards for inland surface water discharge. the quality of ambient waters needs to the maintained through the standards stipulated by tnpcb." the board has power under the environment act and therules to lay down standards for emissions or discharge ofenvironmental pollutants. rule 3(2) of the rules even permitthe board to specify more stringent standards from thoseprovided under the rules. the neeri having justified thestandards stipulated by the board, we direct that thesestandards are to be maintained by the tanneries and otherindustries in the state of tamil nadu. keeping in view the scenario discussed by us in thisjudgment, we order and direct as under:-1. the central government shall constitute an authorityunder section 3(3) of the environment (protection) act, 1986and shall confer on the said authority all the powersnecessary to deal with the situation created by thetanneries and other polluting industries in the state oftamil nadu. the authority shall be headed by a retired judgeof the high court and it may have other members- preferablywith expertise in the field of pollution control andenvironment protection- to be appointed by the centralgovernment. the central government shall confer on the said
authority the powers to issue directions under section 5 ofthe environment act and for taking measures with respect tothe matters referred to in clause (v), (vi) (vii) (viii)(ix) (x) and (xii) of sub-section (2) of section 3. thecentral government shall consitute the authority beforeseptember 30, 1996.2. the authority so constituted by the central governmentshall implement the "precautionaryprinciple" and the"polluter pays" principle. the authority shall, with thehelp of expert opinion and after giving opportunity to theconcerned polluters assess the loss to theecology\environment in the affected areas and shall alsoidentify the individuals/families who have suffered becauseof the pollution and shall assess the compensation to bepaid to the said individuals/families. the authority shallfurther determine the compensation to be recovered from thepolluters as cost of reversing the damaged environment. theauthority shall lay down just and fair procedure forcompleting the exercise.3. the authority shall compute the compensation under twoheads namely, for reversing the ecology and for payment toindividuals. a statement showing the total amount to berecovered, the names of the polluters from who the amount isto be recovered, the amount to be recovered from eachpolluter, the persons to who the compensation is to be paidand the amount payable to each of them shall be forwarded tothe collector\district magistrates of the area concerned.the collector\district magistrate shall recover the amountfrom the polluters, if necessary, as arrears of landrevenue. he shall disburse the compensation awarded by theauthority to be affected persons/families.4. the authority shall direct the closure of the industryowned/managed by a polluter in case he evades or refuses topay the compensation awarded against him. this shall be inaddition to the recovery from his as arrears of landrevenue.5. an industry may have set up the necessary pollutioncontrol device at present but it shall be liable to pay forthe past pollution generated by the said industry which hasresulted in the environmental degradation and suffering tothe residents of the area.6. we imposepollution fine of rs. 10,000/- each on allthe tanneries in the districts of north arcot ambedkar,erode periyar, dindigul anna, trichi and chengai m.g.r. thefine shall be paid before october 31, 1996 in the office ofthe collector/district magistrate concerned. we direct thecollectors/district magistrates of these districts torecover the fines from the tanneries. the money shall bedeposited, alongwith the compensation amount recovered fromthe polluters, under a separate head called "environmentprotection fund" and shall be utilised for compensating the
affected persons as identified by the authorities and alsofor restoring the damaged environment. the pollution fine isliable to the recovered as arrears of land revenue. thetanneries which fail to deposit the amount by october 31,1996 shall be closed forthwith and shall also be liableunder the contempt of courts act.7. the authority, in consultation with expert bodies likeneeri, central board, board shall frame scheme/schemes forreversing the damage caused to the ecology and environmentby pollution in the state of tamil nadu. the scheme/schemesso framed shall be executed by the state government underthe supervision of the central government. the expenditureshall be met from the "environment protection fund" and fromother sources provided by the state government and thecentral government.8. we suspend the closure orders in respect of all thetanneries in the five districts of north arcot ambedkar,erode periyar, dindigul anna, trichi and chengai m.g.r. wedirect all the tanneries in the above five districts to setup cetps or individual pollution control devices on orbefore november 30, 1996. those connected with cetps shallhave to install in addition the primary devices in thetanerries. all the tanneries in the above five districtsshall obtain the consent of the board to function andoperate with effect from december 15, 1996. the tannerieswho are refused consent or who fail to obtain the consent ofthe board by december 15, 1996 shall be closed forthwith.9. we direct the superintendent of police and thecollector/district magistrate/deputy commissioner of thedistrict concerned to close all those tanneries withimmediate effect who fail to obtain the consent from theboard by the said date. such tanneries shall not be reopenedunless the authority permits them to do so. it would be opento the authority to close such tanneries permanently or todirect their relocation.10. the government order no. 213 dated march 30, 1989 shallbe enforced forthwith. no. new industry listed in annexure-ito the notification shall be permitted to be set up withinthe prohibited area. the authority shall review the case ofall the industries which are already operating in theprohibited area and it would be open to authority to directthe relocation of any of such industries.11. the standards stipuated by the board regarding totaldissolved solids (tds) and approved by the neeri shall beoperative. all the tanneries and other industries in thestate of tamil nadu shall comply with the said standards.the quality of ambient waters has to be maintained throughthe standards stipulated by the board. we have issued comprehensive directions for achievingthe end result in this case. it is not necesary for thiscourt to monitor these matters any further. we are of the
view that the madras high court would be in a betterposition to monitor these matters hereinafter. we,therefore, request the chief justice of the madras highcourt to constitute a special bench "green bench" to dealwith this case and other environmental matters. we make itclear that it would be open to the bench to pass anyappropriate order/orders keeping in view the directionsissued by us. we may mention that "green benches" arealready functioning in calcutta, madhya pradesh and someother high courts. we direct the registry of this court tosend the records to the registry of the madras high matteras a petition under article 226 of the constitution of indiaand deal with it in accordance with law and also in terms ofthe directions issued by us. we give liberty to the partiesto approach the high court as and when necessary. mr. m.c. mehta has been assisting this court to ourutmost satisfaction. we place on record our appreciation formr. mehta. we direct the state of tamil nadu to pay rs.50,000/- towards legal fees and other out of pocket expensesincurred by mr. mehta.
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petitioner:union carbide corporation
vs.
respondent:union of india etc.
date of judgment04/05/1989
bench:pathak, r.s. (cj)bench:pathak, r.s. (cj)venkataramiah, e.s. (j)misra rangnathvenkatachalliah, m.n. (j)ojha, n.d. (j)
citation: 1990 air 273 1989 scc (2) 540 1989 scale (1)932
act: bhopal gas leak disaster (registration and processing ofclaims) act, 1985: court giving reasons for the overallsettlement order dated february 14, 1989--compelling dutyboth judicial and humane to secure immediate relief to thevictims.
headnote: the bhopal gas leak tragedy that occurred at midnight of2nd december, 1984, by the escape of deadly chemical fumesfrom the appellant's factory was a great industrial disasterand it took an immediate toil of 2600 human lives and lefttens of thousands of innocent citizens of bhopal physicallyaffected in various ways. as per the figures furnished bythe union of india in its amended plaint a total number of2,660 persons suffered agonising and excruciating deathsbetween 30,000 to 40,000 persons sustained serious injuriesas a result of the said disaster. legal proceedings for the recovery of compensation forthe victims were initiated against the multi-national compa-ny first in the u.s. courts and later in distt. court atbhopal in suit no. 113 of 1986. the present appeals concernwith the order dated 4th april, 1988 passed by the madhyapradesh high court whereby it modified the interlocutoryorder dated 17.12.1987 made by the distt. judge and grantedinterim compensation of rs.250 crores. both the union ofindia and the union carbide corporation have appealed tothis court against that order. the court by its order dated the 14th february, 1989made in these appeals directed that there shall be an over-all settlement of the claims in the suit for 470 millionu.s. dollars and termination of all civil and criminalproceedings. on may 4, 1989 the court pronounced its reasonsfor its aforesaid order dated 14.2.89thus: the statement of the reasons is not made with any senseof finality as to the infallibility of the decision; butwith an open mind to be able to appreciate any tenable andcompelling legal or factual infirmities that may be broughtout, calling for remedy in review under article 137 ofthe constitution. [132c-d]129 the basic consideration motivating the conclusion of thesettlement was the compelling need for urgent relief. con-siderations of excellence and niceties of legal principleswere greatly over-shadowed by the pressing problems of verysurvival for a large number of victims. [133a, c] the instant case is one where damages are sought onbehalf of the victims of a mass disaster, and having regardto the complexities and the legal question involved, any
person with an unbiased vision would not miss the timeconsuming prospect for the course of the litigation in itssojourn through the various courts, both in india and laterin united states. this court considered it a compellingduty. both judicial and humane, to secure immediate reliefto the victims. in doing so, the court did not enter uponany forbidden ground. what this court did was in continua-tion of what had already been initiated. [133e-f, h; 134a] the range of choice for the court in regard to thefigures was, therefore, between the maximum of 426 millionu.s. dollars offered by shri nariman and the minimum of 500million u.s. dollars suggested by the attorney general.[134f-g] having regard to all the circumstances including theprospect of delays inherent in the judicial process in indiaand thereafter in the matter of domestication of the decreein the united states for the purpose of execution, the courtdirected that 470 million u.s. dollars which upon immediatepayment and with interest over a reasonable period, pendingactual distribution amongst the claimants, would aggregatevery nearly to 500 million u.s. dollars or its rupee equiva-lent of approximately rs.750 crores which the attorneygeneral had suggested. be made the basis of the settlement.[134g-h; 135a-b] the settlement proposals were considered on the premisesthat the government had the exclusive statutory authority torepresent andact on behalf of the victims and neithercounsel had any reservation as to this. the order was alsomade on the premises that the bhopal gas leak disaster(registration and processing of claims) act 1985 was a validlaw. [135b-c] there might be different opinions on the interpretationof laws or on questions of policy or even on what may beconsidered wise or unwise; but when one speaks of justiceand truth, these words mean the same thing to all men whosejudgment is uncommitted. [140b-c]the compulsions of the need for immediate relief to tens of130thousands of suffering victims could not wait till thesequestions, vital though they be, are resolved in due courseof judicial proceedings. [142d-e] a settlement has been recorded upon material and incircumstances which persuaded the court that it was a justsettlement. this is not to say that this court will shut outany important material and any compelling circumstanceswhich might impose a duty on it to exercise the powers ofreview. like all other human institutions, this court ishuman and fallible. what appears to the court to be just andreasonable in that particular context and setting, need notnecessarily appear to others in the same day. which view isright, in the ultimate analysis, is to be judged by what it
does to relieve the undeserved suffering of thousands ofinnocent citizens of this country. [142f-g] decisions of courts cannot be reacted or altered ordetermined by agitational pressures. if a decision is wrong,the process of correction must be in a manner recognised bylaw. all of those who invoke the corrective processes inaccordance with law shall be heard and the court will dowhat the law and the course of justice requires. the matterconcerns the interests of a large number of victims of amass disaster. the court directed the settlement with theearnest hope that it would do hem good and bring them imme-diate relief, for, tomorrow might be too ate for many ofthem. but the case equally concerns the credibility of, andthe public confidence in, the judicial process. [143b, d-e]those who trust this court will not have cause for despair.[143f] m.c. mehta v. union of india, air 1987 sc 1(186; theo-ries of compensation, r.e. goodin: oxford journal of legalstudies, 1989 p.57 and wallace mendelson.. supreme courtstatecraft--the rule of law and men, referred to.
judgment: civil appellate jurisdiction: civil appeal nos. 3187 and3188 of 1988. from the judgment and order dated 4.4.1988 of the madhyapradesh high court in cr no. 26 of 1988. anil b. dewan, j.b. dadachanji, mrs. a.k. verma for theappellant. k. parasaran, a. mariarputham, miss a. subhashini andc.l. sahu for the respondents.131the following order of the court was delivered:order the bhopal gas leak tragedy that occurred at midnight on2nd december, 1984, by the escape of deadly chemical fumesfrom the appellant's pesticide-factory was a horrendousindustrial mass disaster, unparalleled in its magnitude anddevastation and remains a ghastly monument to the de-huma-nising influence of inherently dangerous technologies. thetragedy took an immediate toll of 2,660 innocent human livesand left tens of thousands of innocent citizens of bhopalphysically impaired or affected in various degrees. whatadded grim poignance to the tragedy was that theindustrial-enterprise was using methyl iso-cyanate, a lethaltoxic poison, whose potentiality for destruction of life andbiotic-communities was, apparently, matched only by the lackof a pre-package of relief procedures for management of anyaccident based on adequate scientific knowledge as to theameliorative medical procedures for immediate neutralisation
of its effects. it is unnecessary for the present purpose to refer, inany detail, to the somewhat meandering course of the legalproceedings for the recovery of compensation initiatedagainst the multi-national company initially in the courtsin the united states of america and later in the districtcourt at bhopal in suit no. 113 of 1986. it would suffice torefer to the order dated 4 april, 1988 of the high court ofmadhya pradesh which, in modification of the interlocutory-order dated 17 december, 1987 made by the learned districtjudge, granted an interim compensation of rs.250 crores.both the union of india and the union carbide corporationappealed against that order. this court by its order dated 14 february, 1989 made inthose appeals directed that there be an overall settlementof the claims in the suit, for 470 million us dollars andtermination of all civil and criminal proceedings. theopening words of the order said:
"having given our careful considera- tion for these several days to the facts and circumstances of the case placed before us by the parties in these proceedings, including the pleadings of the parties, the mass of data placed before us, the material relating to the proceedings in the courts in the united states of america, the offers and counter-offers made between the parties at different stages 132 during the various proceedings, as well as the complex issues of law and fact raised before us and the submission made thereon, and in particular the enormity of human suffering occasioned by the bhopal gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster, we are of opinion that the case is pre-emi- nently fit for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster ..... " (emphasis supplied)
it appears to us that the reasons that persuaded this court to make the order for settlement should be set-out, so that those who have sought a review might be able effec- tively to assist the court in satisfactorily dealing with the prayer for a review. the statement of the reasons is not made with any sense of finality as to the infallibility of the decision; but with an open mind to be able to appreciate any tenable and compelling legal
or factual infirmities that may be brought out, calling for remedy in review under arti- cle 137 of the constitution.
the points on which we propose to set-out brief reasons are the following: (a) how did this court arrive at the sum of 470 million us dollars for an over-all settle- ment? (b) why did the court consider this sum of 470 million us dollars as 'just, equitable and reasonable'? (c) why did the court not pronounce on certain important legal questions of far reaching importance said to arise in the appeals as to the principles of liability of monolithic, economically entrenched multi-national compa- nies operating with inherently dangerous technologies in the developing countries of the third world--questions said to be of great contemporary relevance to the democracies of the third-world?
there is yet another aspect of the review pertaining tothe part of the settlement which terminated the criminalproceedings. the questions raised on the point in the re-view-petitions, prima facie, merit consideration and weshould, therefore, abstain from saying anything which mighttend to pre-judge this issue one way or the other.133 the basic consideration motivating the conclusion of thesettlement was the compelling need for urgent relief. thesuffering of the victims has been intense and unrelieved.thousands of persons who pursued their own occupations foran humble and honest living have been rendered destitute bythis ghastly disaster. even after four years of litigation,basic questions of the fundamentals of the law as to liabil-ity of the union carbide corporation and the quantum ofdamages are yet being debated. these, of course, are impor-tant issues which need to be decided. but, when thousands ofinnocent citizens were in near destitute conditions, withoutadequate subsistential needs of food and medicine and withevery coming morrow haunted by the spectre of death andcontinued agony, it would be heartless abstention, if thepossibilities of immediate sources of relief were not ex-plored. considerations of excellence and niceties of legalprinciples were greatly over-shadowed by the pressing prob-lems of very survival for a large number of victims. the law's delays are, indeed, proverbial. it has beenthe unfortunate baneof the judicial process that evenordinary cases, where evidence consists of a few documentsand the oral testimony of a few witnesses, require someyears to realise the fruits of litigation. this is so even
in cases of great and unquestionable urgency such as fatalaccident actions brought by the dependents. these are hardrealities. the present case is one where damages are soughton behalf of the victims of a mass disaster and, havingregard to the complexities and the legal questions involved,any person with an unbiased vision would not miss the timeconsuming prospect for the course of the litigation in itssojourn through the various courts, both in india and laterin united states. it is indeed a matter for national introspection thatpublic response to this great tragedy which affected a largenumber of poor and helpless persons limited itself to theexpression of understandable anger against the industrialenterprise but did not channel itself in any effort to puttogether a public supported relief fund so that the victimswere not left in distress, till the final decision in thelitigation. it is well known that during the recent droughtin gujarat, the devoted efforts of public spirited personsmitigated, in great measure, the loss of cattle-wealth inthe near famine conditions that prevailed. this court, considered it a compelling duty, both judi-cial and humane, to secure immediate relief to the victims.in doing so, the court did not enter upon any forbiddenground. indeed, efforts had134earlier been made in this direction by judge keenan in theunited states and by the learned district judge at bhopal.what this court did was in continuation of what had alreadybeen initiated. even at the opening of the arguments in theappeals, the court had suggested to learned counsel on bothsides to reach a just and fair settlement. again, whencounsel met for re-scheduling of the hearings the suggestionwas reiterated. the response of learned counsel on bothsides was positive in attempting a settlement, buttheyexpressed a certain degree of uneasiness and scepticism atthe prospects of success in view of their past experience ofsuch negotiations when, as they stated, there had beenuninformed and even irresponsible criticism of the attemptsat settlement. the learned attorney general submitted thateven the most bona fide, sincere and devoted efforts atsettlement were likely to come in for motivated criticism. the court asked learned counsel to make available theparticulars of offers and counter offers made on previousoccasions for a mutual settlement. learned counsel for bothparties furnished particulars of the earlier offers made foran overall settlement and what had been considered as areasonable basis in that behalf. the progress made by previ-ous negotiations was graphically indicated and these docu-ments form part of the record. shri nariman stated that hisclient would stand by its earlier offer of three hundred andfifty million us dollars and also submitted that his client
had also offered to add appropriate interest, at the ratesprevailing in the u.s.a., to the sum of 350 million usdollars which raised the figure to 426 million us dollars.shri nariman stated that his client was of the view thatamount was the highest it could go upto. in regard tothisoffer of 426 million us dollars the learned attorney-generalsubmitted that he could not accept this offer. he submittedthat any sum less than 500 million us dollars would not bereasonable. learned counsel for both parties stated thatthey would leave it to the court to decide what should bethe figure of compensation. the range of choice for thecourt in regard to the figure was, therefore, between themaximum of 426 million us dollars offered by shri narimanand the minimum of 500 million us dollars suggested by thelearned attorney general. in these circumstances, the court examined the primafacie material as to the basis of quantification of a sumwhich, having regard to all the circumstances including theprospect of delays inherent in the judicial-process in indiaand thereafter in the matter of domestication of the decreein the united states for the purpose of execution and di-rected that 470 million us dollars, which upon immediatepayment135and with interest over a reasonable period, pending actualdistribution amongst the claimants, would aggregate verynearly to 500 million us dollars or its rupee equivalent ofapproximately rs.750 crores which the learned attorneygeneral had suggested, be made the basis of the settlement.both the parties accepted this direction. the settlement proposals were considered on the premisethat government had the exclusive statutory authority torepresent andact on behalf of the victims and neithercounsel had any reservation as to this. the order was alsomade on the premise that the bhopal gas leak disaster(registration and processing of claims) act, 1985 was avalid law. in the event the act is declared void in thepending proceedings challenging its validity, the orderdated 14, february, 1989 would require to be examined in thelight of that decision. we should make it clear that if any material is placedbefore this court from which a reasonable inference ispossible that the union carbide corporation had, at any timeearlier, offered to pay any sum higher than an out-rightdown payment of us 470 million dollars, this court wouldstraightaway initiate suo motu action requiring the con-cerned parties to show cause why the order dated 14 febru-ary, 1989 should not be set aside and the parties relegatedto their respective original positions. the next question is as to the basis on which this courtconsidered this sum to be a reasonable one. this is not
independent of its quantification, the idea of reasonable-ness for the present purpose is necessarily a broad andgeneral estimate in the context of a settlement of thedispute and not on the basis of an accurate assessment byadjudication. the question is how good or reasonable it isas a settlement, which would avoid delays, uncertainties andassure immediate payment. the estimate, in the very natureof things, cannot share the accuracy of an adjudication.here again one of the important considerations was the rangedisclosed by the offers and counter offers which was between426 million us dollars and 500 million us dollars. the courtalso examined certain materials available on record includ-ing the figures mentioned in the pleadings, the estimatemade by the high court and also certain figures referred toin the course of the arguments. there are a large number of claims under the act. in thevery nature of the situation, doubts that a sizeable numberof them are either without any just basis or were otherwiseexaggerated could not136be ruled out. it was, therefore, thought not unreasonable toproceed on some prima facie undisputed figures of cases ofdeath and of substantially compensatable personal injuries.the particulars of the number of persons treated at thehospitals was an important indicator in that behalf. thiscourt had no reason to doubt the bona fides of the figuresfurnished by the plaintiff itself in the pleadings as to thenumber of persons suffering serious injuries. from the order of the high court and the admitted posi-tion on the plaintiff's own side, a reasonable, prima facie,estimate of the number of fatal cases and serious personalinjury cases, was possible to be made. the high court said:
" ..... in the circumstances, leaving a small margin for the possibility of some of the claims relating to death and personal injuries made by the multitude of claims before the director of claims of the state government being spurious, there is no reason to doubt that the figure furnished by the plaintiff union of india in its amended plaint can be safely accepted for the purpose of granting the relief' of interim payment of damages. it has been stated by the plaintiff union of india that a total number of 2660 persons suffered agonising and excruciating deaths and between 30,000 to 40,000 sustained serious injuries as a result of the disas- ter ..... " (emphasis supplied)
there is no scope for any doubt that the cases referredto as those of 'serious injuries' include both types of
cases of permanent total and partial disabilities of variousdegrees as also cases of temporary total or partial disabil-ities of different degrees. the high court relied upon theaverments and claims in the amended pleadings of the plain-tiff, the union of india, to reach this prima facie finding. then, in assessing the quantum of interimcompensationthe high court did not adopt the standards of compensationusually awarded in fatal-accidents-actions or personal-injury-actions arising under the motor vehicles act. it iswell-known that in fatal-accidentactions where children areconcerned, the compensation awardable is in conventionalsums ranging from rs.15,000 to rs.30,000 in each case. inthe present case a large number of deaths was of children ofvery young age. even in the case of adults, according to thegeneral run of damages in comparable cases, the damagesassessed on the137usual multiplier-method in the case of income groups com-parable to those of the deceased-persons, would be anywherebetween rs.80,000 and rs. 1,00,000. but the high court discarded, and rightly, these ordi-nary standards which, if applied, would havelimited theaggregate of compensation payable in fatal cases to a sumless than rs.20 crores in all. the high court thought itshould adopt the broader principle in m.c. mehta v. union ofindia, air 1987 sc 1086. stressing the need to apply such ahigher standard, the high court said:
"as mentioned earlier, the measure of damages payable by the alleged tort-teaser as per the nature of tort involved in the suit has to be correlated to the magnitude and the capacity of the enterprises because such compensation must have a deterrent effect ......... (emphasis supplied) applying these higher standards of compensa- tion, the high court proceeded to assess damage in the following manner: "bearing in mind, the above factors, in the opinion of this court, it would not be unrea- sonable to assume that if the suit proceeded to trial the plaintiff-union of india would obtain judgment in respect of the claims relating to deaths and personal injuries at least in the following amounts: (a) rs.2 lakhs in each case of death: (b) rs.2 lakhs in each case of total permanent disability; (c) rs.1 lakh in each case of permanent partial disa- blement and (d) rs.50,000 in each case of temporary partial disablement." (emphasis supplied)
half of these amounts were awarded as interim compensation.
an amount of rs.250 crores was awarded. the figures adopted by the high court in regard to thenumber of fatal cases and cases of serious personal injuriesdo not appear to have been disputed by anybody before thehigh court. these data and estimates of the high court had aparticular significance in the settlement. then again, itwas not disputed before us that the total number of fatalcases was about 3000 and of grievous and serious personalinjuries, as verifiable from the records of the hospitals ofcases treated138at bhopal, was in the neighbourhood of 30,000. it would notbe unreasonable to expect that persons suffering serious andsubstantially compensable injuries would have gone to hospi-tals for treatment. it would also appear that within about 8months of the occurrence, a survey had been conducted forpurposes of identification of cases of death and grievousand serious injuries for purposes of distribution of certainex gratia payments sanctioned by government. these figureswere, it would appear, less than ten thousand. in these circumstances, as a rough and ready estimate,this court took into consideration the prima facie findingsof the high court and estimated the number of fatal cases at3000 where compensation could range from rs.l lakh to rs.3lakhs. this would account for rs.70 crores, nearly 3 timeshigher than what would, otherwise, be awarded in comparablecasses in motor vehicles accident claims. death has an inexorable finality about it. human livesthat have been lost were precious and in that sense price-less and invaluable. but the law can compensate the estateof a person whose life is lost by the wrongful act of anoth-er only in the way of the law is equipped to compensate i.e.by monetary compensations calculated on certain well-recog-nised principles. "loss to the estate" which is the entitle-ment of the estate and the 'loss of dependancy' estimated onthe basis of capitalised present-value awardable to theheirs and dependants, are the main components in the compu-tation of compensation in fatal accident actions. but, thehigh court in estimating the value of compensation hadadopted a higher basis. so far as personal injury cases are concerned, about30,000 was estimated as cases of permanent total or partialdisability. compensation ranging from rs.2 lakhs tors.50,000 per individual according as the disability istotal or partial and degrees of the latter was envisaged.this alone would account for rs.250crores. in another20,000 cases of temporary total or partial disability com-pensation ranging from rs. 1 lakh down to rs.25,000 depend-ing on the nature and extent of the injuries and extent anddegree of the temporary incapacitation accounting for afurther allocation of rs. 100 crores, was envisaged. again,
there might be possibility of injuries of utmost severity inwhich case even rs.4 lakhs per individual might have to beconsidered. rs.80 crores, additionally for about 2000 ofsuch cases were envisaged. a sum of rs.500 crores approxi-mately was thought of as allocable to the fatal cases and42,000 cases of such serious personal injuries leavingbehind in their trail total or partial incapacitation eitherof permanent or temporary character.139 it was considered that some outlays would have to bemade for specialised institutional medical treatment forcases requiring such expert medical attention and for reha-bilitation and after care. rs.25 crores for the creation ofsuch facilities was envisaged. that would leave another rs.225 crores. it is true thatin assessing the interim compensation the high court hadtaken into account only the cases of injuries resulting inpermanent or temporary disabilities--total--or partial--andhad not adverted to the large number of other claims, saidto run into lakhs, filed by other claimants. such cases of claims do not, apparently, pertain toserious cases of permanent or temporary disabilities but arecases of a less serious nature, comprising claims for minorinjuries, loss of personal belongings, loss of live-stocketc. for which there was a general allocation of rs.225crores. if in respect of these claims allocations are madeat rs.20,000, rs. 15,000 and rs. 10,000 for about 50,000person or claims in each category--accounting for about oneand half lakhs more claims--the sums required would be metby rs.225 crores. looked at from another angle, if the corpus of rs.750crores along with the current market rates of interest oncorporate borrowings, of say 14% or 14 1/2 % is spent over aperiod of eight years it would make available rs. 150 croreseach year; or even if interest alone is taken, about rs. 105to 110 crores per year could be spent, year-afteryear,perpetually towards compensation and relief to the victims. the court also took into consideration the general runof damages in comparable accident claim cases and in casesunder workmens compensation laws. the broad allocations madeare higher than those awarded or awardable in such claims.these apportionments are merely broad considerations gener-ally guiding the idea of reasonableness of the overall basisof settlement. this exercise is not a predetermination ofthe quantum of compensation amongst the claimants eitherindividually or category-wise. no individual claimant shallbe entitled to claim a particular quantum of compensationeven if his case is found to fall within any of the broadcategories indicated above. the determination of the actualquantum of compensation payable to the claimants has to bedone by the authorities under the act, on the basis of the
facts of each case and without reference to the hypotheticalquantifications made only for purposes of an overall view ofthe adequacy of the amount.140 these are the broad and general assumptions underlyingthe concept of 'justness' of the determination of the quan-tum. if the total number of cases of death or of permanent,total or partial, disabilities or of what may be called'catastrophic' injuries is shown to be so large that thebasic assumptions underlying the settlement become whollyunrelated to the realities, the element of 'justness' of thedetermination and of the 'truth' of its factual foundationwould seriously be impaired. the 'justness' of the settle-ment is based on these assumptions of truth. indeed, theremight be different opinions on the interpretation of laws oron questions of policy or even on what may be consideredwise or unwise; but when one speaks of justice and truth,these words mean the same thing to all men whose judgment isuncommitted. of truth and justice, anatole france said:
"truth passes within herself a penetrating force unknown alike to error and falsehood. i say truth and you must understand my meaning. for the beautiful words truth and justice need not be defined in order to be understood in their true sense. they bear within them a shining beauty and a heavenly light. i firmly believe in the triumph of truth and justice. that is what upholds me in times of trial
......" as to the remaining question, it has been said that manyvital juristic principles of great contemporary relevance tothe third world generally, and to india in particular,touching problems emerging from the pursuit of such danger-ous technologies for economic gains by multi-nationals arosein this case. it is said that this is an instance of lostopportunity to this apex court to give the law the newdirection on vital issues emerging from the increasingdimensions of the economic exploitation of developing coun-tries by economic forces of the rich ones. this case also,it is said, concerns the legal limits to be envisaged, inthe vital interests of the protection of the constitutionalrights of the citizenry, and of the environment, on thepermissibility of such ultra-hazardous technologies and toprescribe absolute and deterrent standards of liability ifharm is caused by such enterprises. the prospect of exploi-tation of cheap labour and of captive-markets, it is said,induces multi-nationals to enter into the developing coun-tries for such economic-exploitation and that this waseminently an appropriate case for a careful assessment ofthe legal and constitutional safeguards stemming from thesevital issues of great contemporary relevance.
these issues and certain cognate areas of even wider signif-icance141and the limits of the adjudicative disposition of some oftheir aspects are indeed questions of seminal importance.the culture of modern industrial technologies, which issustained on processes of such pernicious potentialities, inthe ultimate analysis, has thrown open vital and fundamentalissues of technology-options. associated problems of theadequacy of legal protection against such exploitative andhazardous industrial adventurism, and whether the citizensof the country are assured the protection of a legal systemwhich could be said to be adequate in a comprehensive sensein such contexts arise. these, indeed, are issues of vitalimportance and this tragedy, and the conditions that enabledit happen, are of particular concern. the chemical pesticide industry is a concomitant, andindeed, an integral part, of the technology of chemicalfarming. some experts think that it is time to return fromthe high-risk, resource-intensive, high-input, anti-ecologi-cal, monopolistic 'hard' technology which feeds, and is fedon, its self-assertive attribute, to a more human and hu-mane, flexible, eco-conformable, "soft" technology with itssystemic-wisdom and opportunities for human creativity andinitiative. "wisdom demands" says schumacher" a new orienta-tion of science and technology towards the organic, thegentle, the non-violent, the elegant and beautiful". theother view stressing the spectacular success of agriculturalproduction in the new era of chemical farming, with high-yielding strains, points to the break-through achieved bythe green revolution with its effective response to, andsuccessful management of, the great challenges of feedingthe millions. this technology in agriculture has given a bigimpetus to enterprises of chemical fertilizers and pesti-cides. this, say its critics, has brought in its trail itsown serious problems. the technology-options before scien-tists and planners have been difficult. indeed, there is also need to evolve a national policyto protect national interests from such ultra-hazardouspursuits of economic gains. jurists, technologists and otherexperts in economics, environmentology, futurology, sociolo-gy and public health etc. should identify areas of commonconcern and help in evolving proper criteria which mayreceive judicial recognition and legal sanction. one aspect of this matter was dealt with by this courtin m.c. mehta v. union of india, (supra) which marked asignificant stage in the development of the law. but, at thehearing there was more than a mere hint in the submissionsof the union carbide that in this case the law was alteredwith only the union carbide corporation in mind, and142
was altered to its disadvantage even before the case hadreached this court. the criticism of the mehta principle,perhaps, ignores the emerging postulates of tortious liabil-ity whose principal focus is the social-limits on economicadventurism. there are certain things that a civilisedsociety simply cannot permit to be done to its members, evenif they are compensated for their resulting losses. we maynote a passage in "theories of compensation," r.e. goodin:oxford journal of legal studies, 1989, p. 57.
"it would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. such a proposition would mistake part of the policy universe for the whole. the set of policies to which it points--policies that are 'permissible' but only with compensa- tion'--is bounded on the one side by a set of policies that are 'permissible, even without compensation' and on the other side by a set of policies that are 'impermissible, even with compensation'."
but, in the present case, the compulsions of the needfor immediate relief to tens of thousands of sufferingvictims could not, in our opinion, wait till these ques-tions, vital though they be, are resolved in the due courseof judicial proceedings. the tremendous suffering of thou-sands of persons compelled us to move into the direction ofimmediate relief which, we thought, should not be subordi-nated to the uncertain promises of the law, and when theassessment of fairness of the amount was based on certainfactors and assumptions not disputed even by the plaintiff. a few words in conclusion. a settlement has been record-ed upon material and in circumstances which persuaded thecourt that it was a just settlement. this is not to say thatthis court will shut out any important material and compel-ling circumstances which might impose the duty on it toexercise the powers of review. like all other human institu-tions, this court is human and fallible. what appears to thecourt to be just and reasonable in that particular contextand setting, need not necessarily appear to others in thesame way. which view is right,in the ultimate analysis, isto be judged by what it does to relieve the undeservedsuffering of thousands of innocent citizens of this country.as a learned author said: wallace mendelson: supreme courtstatecraft--the rule of law and men.
"in this imperfect legal setting we expect judges to clear 143 their endless dockets, uphold the rule of law, 'and yet not utterly disregard our need for the discretionary justice of plato's philoso-
pher king. judges must be sometimes cautious and sometimes bold. judges must respect both the traditions of the past and the convenience of the present........"
but the course of the decisions of courts cannot be reachedor altered or determined by agitational pressures. if adecision is wrong, the process of correction must be in amanner recognised by law. here, many persons and socialaction groups claim to speak for the victims, quite a few indifferent voices. the factual allegations on which they resttheir approach are conflicting in some areas and it becomesdifficult to distinguish truth from false-hood and half-truth, and to distinguish as to who speaks for whom. however, all of those who invoke the corrective-process-es in accordance with law shall be heard and the court willdo what the law and the course of justice requires. thematter concerns the interests of a large number of victimsof a mass disaster. the court directed the settlement withthe earnest hope that it would do them good and bring themimmediate relief, for, tomorrow might be too late formanyof them. but the case equally concerns the credibility of,and the public confidence in, the judicial process. if,owing to the pre-settlement procedures being limited to themain contestants in the appeal, the benefit of some contraryor supplemental information or material, having a crucialbearing on the fundamental assumptions basic to the settle-ment, have been denied to the court and that, as a result,serious miscarriage of justice, violating the constitutionaland legal rights of the persons affected, has been occa-sioned, it will be the endeavour of this court to undo anysuch injustice. but that, we reiterate, must be by proce-dures recognised by law. those who trust this court will nothave cause for despair.144
petitioner:rural litigation & entitlement kendra
vs.
respondent:state of u.p.
date of judgment30/08/1988
bench:misra rangnathbench:misra rangnathvenkatachalliah, m.n. (j)
citation: 1989 air 594 1989 scc supl. (1) 537 jt 1988 (4) 710 1988 scale (2)1574
act: constitution of india, 1950: article 32 limestonequarries- dehradun mussoorie belt-public interest litigationagainst pollution- high powered committee to be set up tolook after re-afforestation, mining activities and bringabout natural normalcy in the doon valley.%
forest (conservation) act 1980: limestone guarries indoon valley-- continuance of mining activity--impermissibility of. public interest litigation: procedure laws apply butevery technicality in procedural laws not available inmatters of grave public importance.
headnote: a letter-petition, and an application, containingallegations of unauthorised and illegal mining in themussoorie-dehradun belt, affecting adversely the ecology andenvironmental order of the area, were directed to beregistrered as writ petitions under public interestlitigation. apart from the governments of the union and ofuttar pradesh, several governmental agencies and mininglessees appeared in the proceedings. a number of committeesand working groups were set up both by the court and thecentral government to look into the various aspects of theproblem, their reports received and several comprehensiveinterlocutory directions issued. one of the committees, referred to as the bhargavacommittee, classified the mines into three groups, being a,b, c. on the basis of the recommendations of the bhargavacommittee report and other material the court directed, byits order dated 12th march, 1985, that category mines ofthe bhargava committee report should be closed downpermanently. similar order was made in regard to categorymines situated in the shasradhara block. the court furtherdirected category mines located within the mussooriemunicipal limits and the remaining b category mines tosubmit their mining scheme for scrutiny of the bandyopadhyaycommittee. the court, however, allowed category mineslocated outside the city limits to operate.
pg no 690 pg no 691
some of the mines which were ordered to be closed downhad earlier been refused renewal of their mining licences.these mines, however, continued to operate under the ordersof various courts which had granted extension of theirleases pending the final orders of the courts. this court,in its order dated 12th march, 1985 had therefore, directedthat if any mining lessee of a mine, which had been orderedto be closed down, was running under the first grant orunder court's orders after its expiry, it would not beentitled to take advantage of that position. in its order dated 16th december, 1986 this courtrecognised the need to strike a balance between preservationand utilisation of deposits, and urged the government totake a policy decision in the matter. the government
thereupon set up another committee to examine the working ofthe limestone mining operations in the doon valley. thiscommittee inspected six mines which were operating. three ofthese mines were operating under valid mining leases and theother three, whose leases had expired in december 1982? wereoperating under orders of different courts. keeping in view the reports of the committee and thesubmissions at the bar, the court passed further orders. on behalf of the lessees it was contended: (1) decisionof this court dated 12th march, 1985 was final in certainaspects including the release of the a category minesoutside the city limits from the proceedings, and in view ofsuch finality it is not open to this court in the sameproceedings at a later stage to direct differently in regardto what has been decided earlier; (2) during the pendency ofthese writ petitions, the environment protection act of l986has come into force and since that statute and the rulesmade thereunder provide detailed procedure to deal with thesituations that arise in these cases, this could should nomore deal with the matter and leave it to be looked into bythe authorities under the act, and (3) there would be atotal stalemate in the manufacture of drugs and sugar, asalso steel,in case mining activity is stopped. disposing of the writ petition, this court, held: (1) "forest" was initially a state subject coveredby entry 19 in list ii of the seventh schedule. in 1976,under the 42nd amendment the entry was deleted and entry 17-a in the concurrent list was lnserted. the change from thestate list to the concurrent list was brought about
pg no 692following the realisation of the central governmentthat`forests' were of national importance and should be placedin the concurrent list to enable the central government todeal with the matter. the same amendment of the constitutionbrought in article 48,a and article 51a(g) is part iva.[713h; 714a-b] (2) the forest (conservation) act, 1980 does not permitmining in the forest area. if mining activity even to alimited extent is permitted in future, it would be notcongenial to ecology and environment, and the natural calmand peace which is a special feature of this area in itsnormal condition shall not be restored. this tourist zone inits natural setting would certainly be at its best if itsserenity is restored in the fullest way. [7l0e-f] (3) by the court's order of 12th march, l985, the acategory mining leases outside the city limits were onlyexempted from further scrutiny and not released from theproceedings. if the court really intended to release the acategory mines outside the city limits, it could very wellpronounce that in clear terms. [706e-h] (4) the examination by this court when it made the order
of 12th march, 1985, omitted to consider the impact of theforest (conservation) act, 1980 which was then a statute inforce. if the provision of the conservation act had beennoticed and impact thereof for the continuance of miningactivity bad been considered, perhaps the court would havemade no exemptions and no mining may have been permitted.[706g] (5) the writ petitions are not inter-party disputes andhave been raised by way of public interest litigation, andthe controversy before the court is as to whether for safetyand for creating a hazardless environment for the people tolive in, mining in the area should be permitted or stopped.the court may not be taken to have said that for publicinterest litigations, procedural laws do not apply. at thesame time, it has to be remembered that every technicalityin the procedural law is not available as a defence when amatter of grave public importance is for considerationbefore the court. even if it is said that there was a finalorder, in a dispute of this type it would be difficult toentertain the plea of res judicata. leaving the questionopen for examination in future would lead to unnecessarymultiplicity of proceedings and would be against theinterest of society. [707b-d] (6) these writ petitions were filed more than threeyears before the environment (protection) act, l986 came
pg no 693into force. this court appointed several expert commitees,received their reports and made directions. the severalparties and their counsel have been heard for days togetheron different issues during the three and a quarter years ofthe pendency of the proceedings. the environment(protection) act does does purport to- and perhaps couldnot--take away the jurisdiction of this court to deal with acase of this type. in consideration of these facts, thereis no justification to decline the exercise of jurisdictionat this stage. [707e-g] (7) ordinarily, the court would not entertain a disputefor the adjudication of which a special provision has beenmade by law but that rule is not attracted in the presentsituation in these cases. besides it is a rule of practiceand prudence and not one of jurisdiction. [707h] (8) the forest (conservation) act, 1980 applies torenewals as well and even if there was a provision forrenewal in the lease agreement on exercise of lessee'soption,the requirements of l980 act had to be satisfiedbefore such renewal could be granted. [717g-h] ambica quarry works v. state of gujarat & ors., [1987]1 scc 213; state of rajasthan v. hari shankar rajindrapal,[l965l 3 scr 402 and state of bihar v. banshi ram modi,[l985] 3 scc 643, referred to. (9) it is clear from the directions contained in the
order of 12th march, 1985, as also the ratio of thejudgment in the ambica quarry works case, that even if therehas been an order of the court and no challenge is raisedagainst such order, this court could invoke its jurisdictionto nullify the direction or order, and if any order,direction or decree has been passed ignoring the provisionsof the conservation act of 1980 the same would not bebinding. [7l8b-c] (10) parties have been heard on various aspects. anorder made by this court to nullify the decrees in suchcircumstances would not be violative of the principles ofnatural justice. [718f] (11) it any decree or order has already been obtainedfrom any court relating to renewal of these leases, thesame shall stand vacated, and similarly any appeal or otherproceeding taken to obtain a renewal or againstorder/decrees granting renewal shall also become nonest.[718g-h] (12) most of these mines are either within reservedforests or in forest lands as covered by the u.p. amendmentof the forest act. to these areas the forest conservation
pg no 694act applies and to allow mining ia these areas even understrictest control as a permanent feature would not only beviolative of the provisions of forest (conservation) act butwould be detrimental to restoration of the forest growth ina natural way in this area. once the importance of forestsis realised and as a matter of national policy and in theinterests of the community, preservation of forests isaccepted as the goal, nothing which would detract from thatend should be permitted. in such circumstances, miningactivity in this valley must be completely stopped. but sucha situation will be available only after the original leasesof the working mines are over. [726g-h; 727al (13) the court accepts the position that manufacture ofdrugs and sugar, as steel, would be hard-hit if miningactivity in this area is stopped all of a sudden. with thepressing demand in the market and discovery of usefullimestone deposits in other parts of the country apart fromwhat has been indicated in the second affidavit of the unionof india, the trade would adjust itself as every economicactivity does. however, the position should be monitored andthe switch-over from the present position to a total banshould be spread over a period and not be sudden. [727d-e] (14) in the circumstances, allowing the three on-goingmines to operate for their initial period of lease is themost appropriate direction that can be given during theswitch over from the present position to one of completeclosing down of mining operation. [730c-h] (15) there is no dispute that continuance of miningoperations effects environment and ecology adversely and at
the same time creates a prejudicial situation againstconservation of forests. it is, therefore, necessary thateach of these working mines shall have to work with anundertaking given to the monitoring committee that all careand attention shall be bestowed to preserve ecological andenvironmental balance while carrying on mining operations.[731d-e] (16) the court ordered the setting up of the monitoringcommittee to look after reafforestation, mining activitiesand all other aspects necessary to bring about naturalnormalcy in the doon valley. the court also issueddirections regarding the finances, powers and duties of themonitoring committee. [733e] (17) the court has no other option but to close down themining activity in the broad interests of the community.this, however, does not mean that the displaced mine owners
pg no 695should not be provided with alternative occupation. piousobservation or even a direction in that regard may not beadequate. what is necessary is a time frame functioning ifrehabilitation is to be made effective. it is, therefore,necessary that a committee should be set up to oversee therehabilitation of the displaced mine owners. [732b-c]
judgment: original jurisdlcion : write petition (civil) nos. 8209and 8821 of 1983. (under article 32 of the constitution of india). m.k. banerjee, solicitor general, m.k. ramamurthy, a.k.ganguli, a.k. sen, r.k. jain, kapil sibbal, b.d. agarwal,o.p. rana, f s. nariman, tapas ray, dr. l.m. singhvi,rajendra sachhar, yogeshwar prasad, g.l. sanghi, w.c.mahajan, g.a. shah, m.a. krishnamurthy, r.p. srivastava, ms.a. subhashni, ravi prakash gupta, mrs. shobha dikshit, badridass sharma, aruneshwar gupta, lnderbir singh, arun jaitey,ms. bina gupta, atul tewari, raju ramachandran, m.v.goswami, s.k. jain, e.c. agarwal, s. atreya, ravi p.wadhwani, m.g. ramachandran, mrs. rachna gupta, dr. s.r.srivastava, pramod dayal, rishi kesh, r.b. mehrotra, c.m.nayar, mrs. m. karanjawala, s.a. syed, p.p. juneja,p.k.jain, k.n. bhatt, d.n. mishra, ms. lndra makwana, a. subbarao, harjinder singh, parijat sinha. c.p. lal, shri narain,s.k. gupta, k.r. namibiar, s.s khanduja, k.k. jain,. d.m.nargolkar, devi ditta mal-ln-person, a.k. panda, ranjitkumar, a.k. shrivastava, a.k. jain, a.d. sanger. pramoddayal, r.s. hedge, k.r. nagaraja, p.k. rao, m.n. shroff.n.n. keshwani, r.n. keshwani prashant bhushan and mr. nevvagupta advocates for the appearing parties. the judgment of the court was delivered by
ranganath mlsra, j. on july 14, 1983, a letter receivedfrom the rural litigation and entitlement kendera, dehradun,bearing the date july 2, 1993, was directed to beregistered as a writ petition under article 32 of theconstitution and notice was ordered to the state of uttarpradesh and the collector of dehradun. allegations ofunauthorised and illegal mining in the mussoorie- dehradunbelt which adversely affected the ecology of the area andled to environment disorder were made. later on anotherapplication with similar allegations was directed to betagged with the earlier one. that is how these two writ
pg no 696petitions were both in the registry of this court in a veryinnocuous manner as public interest litigation. the numberof parties inflated both under the orders of the court andon application to be added. apart from the governments ofthe union and of uttar pradesh, several governmentalagencies and mining lessees appeared in the proceedings.what initially appeared to be two simple applications forlimited relief got expanded into a comprehensive litigationrequiring appointment of committees, inspection and reportsin them from time to time, serious exercises on the part ofthe mine owners before the committees, filing of affidavitsboth original and further, and lengthy arguments at thebar.these also necessitated several comprehensiveinterlocutory directions and orders. these two writpetitions are being disposed of by this common judgment. on august if, 1983, this court appointed a committee forinspection of the mines with a view to securing assistancein the determination as to whether safety standards laiddown in the mines act of 1952 and the rules made thereunderhave been followed and whether there was any danger of land-side on account of quarrying operations particularly duringthe rainy season, and if there was any other hazard to anyindividual, cattle or agricultural lands on account ofcarrying of the mining operations. at the preliminary stagethis court directed total stopping of blasting operationswhich, however, was modified later. the said committee,referred to as the bhargava committee after its chairman,classified the mines which it inspected into three groups,being a, b and c. it took note of the fact that earlier anexpert committee known as the working group had been set upby the union government which had also inspected thesemines. the bhargava committee was of the view that the cgroup mines should be totally stopped; in the a group mines,quarrying could be carried on after ensuring that there wasno ecological or environmental hazard; and in regard to theb group mines, the committee opined that those may not beclosed down permanently but the matter should be probedfurther. a three-judge bench of this court by an order dated
march 12, 1985 (l985 3 scr 169) directed closure of the ccategory mines as also certain b category mines on permanentbasis and gave directions in regard to further action to betaken by the bhargava committee. while making the order thecourt specifically stated that the reasons for the orderwould follow. one of the learned judges constituting thethree-judge bench retired from the court on september 30,1985, and the said learned judge (a.n. sen, j.) expressedhis views in a short order dated 30th september, 1985. the
pg no 697working group appointed by the union government was alsoheaded by the same mr. bhargava and had five other members.the examination by the two committees appeared to be withthe same object, namely, as to whether the mining wasbeing properly done and whether such activity should becarried on in this area. the working group and classifiedthe mines into two categories being i and ii. they put thosemines which according to them were suitable for continuingoperation under category i and the mines which in theiropinion were unsuitable for further mining under categoryii. an interesting feature in these two reports seems to bethat almost the same lime stone quarries which have been putby the bhargava committee under category a feature incategory i of the working group. this court in its order ofmarch 12, 1985, referred to those aspects and pointed out: "it will thus be seen that both the bhargav committeeand the working group were unanimous in their view that thelime stone quarries classified in category a by the bhargavcommittee report and category i by the working group weresuitable for continuance of mining operations. so far as thelime stone quarries in category c of the bhargav committeereport are concerned, they were regarded by both the bhargavcommittee and the working group as unsuitable forcontinuance of mining operations and both were of the viewthat they should be closed down. the only difference betweenthe bhargav committee and the working group was in regard tolime stone quarries classified in category b." this court had also appointed an expert committeeconsisting of prof. k.s. valdia, mr. hukum singh and mr.d.n. kaul to enquire and investigate into the question ofdisturbance of ecology and pollution and affectation of air,water and environment by reason of quarring operations orstone crushers and setting up of lime stone kilns. mr. kauland mr. hukum singh submitted a joint report with referenceto various aspects indicated in their order of appointmentwhile prof. valdia submitted a separate report. in the orderof march 12. 1985, this count took note of the positionthat prof. valdia's report was confined largely to thegeological aspect and considerable reliance on the mainboundary thrust (mbt) had been placed by him in making ofthe report and he had taken the view that the lime stone
quarries which were dangerously close to the mbt should beclosed down in such as that was a sensitive and vulnerablebelt. this court then took the view that not much
pg no 698importance could be placed to dr. valdia's report for thislitigation. the joint report submitted by mr. kaul and mr.hukum singh had been taken into account by this court inmakinginterim directions and for the making of the finalorder no specific reference is called for. in the order of march 12, 1985, this court directed thatthe c category mines of the bhargav committee report shouldbe closed down permanently and if any mining lessee of sucha mine was running under the first grant or under court'sorders after its expiry, it would not be entitled to takeadvantage of the position. similar order was made in regardto the b category mines situated in the shasradhara block.this court directed a category mineslocated within themussoorie municipal limits and the remaining b categorymines to submit schemes subjected to further enquiry andordered: "we accordingly appoint a high powered committeeconsisting of mr. d. bandyopadhyay, secretary, ministry ofrural development as chairman, and shri h.s. ahuja, directorgeneral, mines safety, dhanbad, bihar, shri d.n. bhargav,controller general, indian bureau of mines, new secretariatbuilding, nagpur and two experts to be nominated by thedepartment of environment. government of india within fourweeks from the date of this order. the lessees of the limestone quarries classified as category a in bhargav committeereport and for category p in the working group report andfalling within the city limits of mussoorie as also thelessees of the lime stone quarries classified as category bin the bhargav committee scheme for mining their lime stonequarries to this committee (hereinafter called thebandyopadhyay committee) and if any such scheme or schemesare submitted the bandyopadhyay committee will proceed toexamine the same without any unnecessary delay and submit areport to this court whether in its opinion the particularlime stone quarry can be allowed to be operated inaccordance with the scheme and if so, subject to whatconditions and if it cannot be allowed to be operated, thereasons for taking that view. the bandyopadhyay committee inmaking its report will take into account the various aspectswhich we had directed the bhargav committee and the kaulcommittee to consider while making their reports including
pg no 699the circumstances that the particular lime stone quarry mayor may not be within the city limits of mussoorie and alsogive an opportunity to the concerned lessee to be heard,even though it be briefly. " several mining lessees submitted their schemes which
were examined by the committee but none of them was cleared.objections against rejection of the schemes had been filedbefore this court by many of the aggrieved lessees. it wasdirected in the aforesaid order of 12th march, 1985, thatuntil the bandyopadhyay committee cleared the particularmines for operation, mining activity in regard to all minescovered within the purview of examination by that committeewould stop. this court, however, allowed a category mineslocated outside the city limits to operate. while directingclosure of the shasradhara area b category mines and all thec category mines, as also a and b category mines within themunicipal limits this court made it clear that the banindicated by it would supersede any order of any othercourt. the court observed: "the consequence of this order made by us would be thatthe lessees of lime stone quarries which have been directedto be closed down permanently under this order or which maybe directed to be closed down permanently afterconsideration of the report of the bandyopadhyay).committee, would be thrown out of business in which theyhave invested large sums of money and expanded considerabletime and effort. this would undoubtedly cause hardship tothem but it is a price that has to be paid for protectingand safeguarding the right of the people to live in healthyenvironment with minimal disturbance of ecological balanceand without avoidable hazard to them and to their cattle,homes and agricultural land and undue affectation of air,water and environment. " the order of 12th march, 1985, did not refer to theforest (conservation) act of 1980 when it permitted the acategory lime stone quarries located outside the city limitsto operate. this court made several orders relating to specificaspects after the order of 12th march, 1985. one such orderwas made on 30th may, 1985, (1985 (3) scc 614), another on'18th december, 1986, (1986 suppl. scc 517) where reasonsfor the order of 12th march, 1985, given, and yet anotherorder was made on 19th october, 1987 (air 1987 sc 2426). we
pg no 700shall refer to the last of these orders in a later part ofthis judgment. in the order of 16th december, 1986, when thereasonings for the order dated 12th march, 1985 were given,this court had stated: "it is for the government and the nation-and not for thecourt to-decide whether the deposits should be exploited atthe cost of ecology and environmental consideration or theindustrial requirement should be otherwise satisfied. it maybe perhaps possible to exercise greater control and vigilover the operation and strike a balance between preservationand utilisation; that would indeed be a matter for an expertbody to examine and on the basis of appropriate advice,
government should take a policy decision and firmlyimplement the same." the court had also indicated in its earlier order thatit should be ensured that the low grade cilica content limestone is specifically utilised only in special industrieshaving regard to its quality and should not be wasted bybeing utilised for purposes for which this special gradelime stone is not required. keeping these aspects in view, the government of indiain the ministry of environment and forests, department ofenvironment, forests and wildlife, constituted a committeeto examine the working of the lime stone mining operationsin the doon valley by its memorandum no. j-20012/48/86-1a,dated 30th of december, 1986, which was also called theworking group. shri d.n. bhargava was nominated as chairmanand the committee had three other members, namely, shri v.c.verma, director general, mines safety, dhanbad; prof. b.d.dhar, department of mining engineering of the banaras hinduuniversity, varanasi; and shri r. mehta, principalscientific officer, department of environment, forest andwildlife, new delhi. shri verma was substituted by shri n.mishra, deputy director general, northern zone. the terms ofreference of the committee were: (i) whether the operations are being carried out onscientific lines? (ii) whether the limestone quarried is being supplied toend-users as stipulated by the supreme court; and (iii) the extent to which the mining operations arecontributing to environmental damage?
pg no 701 this committee visited the six mines which are operatingand indicated: "the limestone deposits of dehradun-mussoorie area arehighly valuable mineral resource now essentially required bythe steel industry and it would be necessary to exploitthem, of course, in a very planned and systematic manner.' the committee addressed itself to two aspects, namely,- (i) those which were considered suitable for miningoperations, and (ii) those which were considered unsuitable for furthermining. the committee whose entire report has been madeavailable to us came to the following conclusions in regardto each of the six operating mines. (i) lambidhar limestone mine of m/s uttar pradesh statemineral development corporation ltd. (upsmdc) is a stateundertaking and holds a mining lease of 97 hectares coveringthe lambidhar hills and the lease is valid up to. 10thmarch, 1996. the committee found that 36% of its productionwas supplied to steel and chemical industries, 12% to sugar,6% to cement and other miscellaneous industries and 46% to
chips and lime kilns industries and disapproved thisposition. it further found that while colour limestone whichis a metamarphose is being recorded as a minor mineralwhereas it was learnt that it was being used for despatch asmajor mineral. the arrangement for classification of thelime stone also was not acceptable to the committee. itfurther found: "the hill slopes and the river/nallah base are coveredby scree generated both during road construction as well assubsequent mining operations. this is the result of allowingthe excavatedmaterial to roll down the slopes. thecommittee is of the opinion that road making may be donewith front-end loader instead of bulldozer as with latterequipment excavated materials roll down the hill slopeuncontrolably. the vegetation cover along the slopes hasbeen damaged by the rolling material as well as the
pg no 702excavation made for the road making and the hills present anugly look. hydro-seeding may be done to improve looks ofhill slopes. deposition of debris/scree in the nullahsspecially in betarli is the cause of concern because ithappens to be one of the main steams which is source-ofwater supply to the villages as well as dehradun city. theapproach road has reached the top and mining operations havebeen started but not work on reclamation of mined out areahas yet commenced. a proper disposal yard for stockingdebris must be provided so that the present practice ofdisposing it near the camp office on the bank of the violetis prevented. details of arrangements for controlling dustboth in mining and crushing operations are not available."upsmdc is the largest of the working mines and apart fromthe fact that it belongs to the government of uttar pradesh,it has also the largest of investment. it has been claimedbefore us on its behalf that it operates most scientificallyand satisfies all the requirements appropriate forecological and environmental safeguards. the report of thecommittee, extracted above, negatives all these claims. (ii) we shall now refer to m/s punjab lime and limestonecompany which has two mines both of which are working. leaseno. 14 covers 44.5 hectares and is a lease for 20 years from1966; as such it has already expired. lease no. 96 is for28.92 hectares and would expire in december, 1989. lease no.14 had two areas and this court disallowed mining in thenorthern block. the committee found that 16.4 hectares equalto 41 acres, out of lease no. 96 comprised of thick forestand the lessee had surrendered the forest area. the miningoperation is being carried on in lease no. 14 under ordersof the court and the residual portion of lease no. 96. thecommittee found that the scheme which had been offered tothe bandyopadhyay committee was in regard to the mining inthe northern block of lease no. 14 which has since been
abandoned. it further transpires that about 27% of itsoutput during 1986 was supplied for the steel industry. thereport indicates that there is little generation of scree.as there is sparse growth of trees in the area covered bythe mines, no significant deforestation is involved.disposal of overburden is not significant check dams havebeen set up in the lower reaches which are on the right bankof bhitarli river and no significant fall of the scree intothe river was apprehended: (iii) next is lease no. 72 of shri r.k. oberai whichwould expire on 10th of april, 1994. it has an area of 15.92
pg no 703hectares. the committee found that this mine lies in theupper reaches of the song river. thick forest growth is seenclose to the mine and the committee gathered that the forestauthorities have declined permission to extend the mineworkings beyond rl 1280. the committee found that the lesseehas undertaken to carry out afforestation and has alsostarted compensatory forestory in the adjacent areas. therewas no apprehension of spreading of scree and future miningoperations are not likely to involve any significantdeforestation. the committee also has opined that there isno apprehension of choking of the water-ways due to miningoperations as the song river flows about 400 mts. away. apart from these three mines which are operating undervalid mining leases, the committee inspected the minescorresponding to iease nos. 16, 17 and 76, belonging to vedpal singh chaudhary, seth ram avtar and shri c.g. gujralrespectively. all these leases have expired in december,1982, and under orders of different courts mining is beingcarried on. bhitarli kalan limestone mines of shri ved pal singhchaudhary was a lease for 38.8 hectares and expired on 29thdecember, 1982. this court has already directed closure ofmining operation in a small area on the left bank ofbhitarli river. seth ram avtar has a lease of 14. 18 hectares on theleft bank of bhitarli river and the lease expired on 2nddecember, 1982. the committee found that he had noenvironment management plan. the working plan submitted bythe iessee did not show any plantation area. the last of the working mines which the committeevisited is that of shri c.g. gujaral. the iease was for24.16 hectares and expired on 17th december, 1983. thecommittee found that the iease area contained very goodforest. the rolling of scree/debris along the slopes hadleft not only ugly scars but also resulted in destruction ofthe green cover. the debris flow has also choked the sansarunullah which once used to be a perennial stream. there wasno environmental management plan. in fact the committee cameto the conclusion that the working of this mine was not
conducive to the environmental conservation. we have in another part of this judgment indicated ourconclusion that mining activity as a whole should be stoppedin the doon valley but for the reasons indicated therein, wehave also come to the conclusion that the three mining
pg no 704lessees who have been operating under valid lease may bepermitted to work subject to such conditions as have beenindicated. keeping the report of the working group in viewand for the reasons we have elsewhere indicated, we directthat mining operations in lease nos. 16, 17 and 76 where therespective leases have expired and mining operation is beingcarried on under court's orders, shall stop and the severalorders of the courts enabling mining activity shall standsuperseded. this court in its order dated 19th of october, 1987,(air 1987 sc 2426) came to the clear conclusion: "we are of the view that the stone quarrying in the doonvalley area should generally be stopped and reasons thereforwe shall provide in due course." in another part of this judgment, reasons in support ofthat conclusion have been provided. the direction to closedown the three operating mines where the period of lease hasexpired is to bring the position in accord with thatconclusion. one of the submissions advanced at the bar is that thedecision of this court dated 12th march, 1985, was final incertain aspects including the release of the a categorymines outsidethe city limits of mussoorie from theproceedings and in view of such finality it is not open tothis court in the same proceedings at 3 latter stage todirect differently in regard to what has been decidedearlier. connected with this submission is the contentionthat during the pendency of these writ petitions, theenvironmental (protection) act of 1986 has come into forceand since that statute and the rules made: thereunderprovide detailed procedure to deal with the situations thatarise in these cases, this court should no more deal withthe matter and leave it to be looked into by the authoritiesunder the act. counsel have relied upon what was stated bythis court while giving reasons in support of the order ofmarch 12, 1985, namely, "it is for the government and thenation-and not for the court-to decide whether the depositsshould be exploited at the cost of ecology and environmentalconsiderations." in the order of 12th march, 1985, thiscourt had pointed out: "so far as the lime stone quarries classified ascategory). a in the bhargav committee report and/or category1 in the working group report are concerned, we would dividethem into two classes, one class consisting of those lime
pg no 705
stone quarries which are within the city limits of mussoorieand the other consisting of those which are outside the citylimits. we take the view that the lime stone quarriesfalling within category a of the bhargav committee reportand/or category 1 of the working group report and fallingoutside the city limits of mussoorie, should be allowed tothe operated subject, of course, to the observance of therequirements of the mines act, 1952, the metalliferous minesregulations, 1961 and other relevant statutes, rules andregulations. of course when we say this, we must make itclear that we are not holding that if the leases in respectof these lime stone quarries have expired and suits or writpetitions for renewal of the leases are pending in thecourts, such leases should be automatically renewed. it willbe for the appropriate courts to decide whether such leasesshould be renewed or not having regard to the law and factsof each case. so, far as the lime stone quarries classifiedin category a in the bhargav committee report and category 1in the working group report and falling within the citylimits of mussoorie are concerned, we would give the samedirection which we are giving in the next succeedingparagraph in regard to the lime stone quarries classified ascategory b in the bhargav committee report." the argument that a category mines outside the citylimits had been cleared is based upon what has beenindicated above. dealing with this of the direction, thiscourt in its order of 19th october, 1987, stated : consciousness regarding environmental upkeep is ofrecent origin. cognizance of ecological importance hasentered into governmental activity only in this decade.everyday that consciousness as also the sense of socialobligation in this regard are on the increase. it has beenpointed out to us in course of hearing of the objectionsthat the classification of the a category iime stonequarries on the basis of their location-within the municipallimits and outside--was indeed not a real one. we have beenshown and it seems to be factually true that some of thelime stone quarries said to be outside the city limits arecloser to the heart of the city of mussoorie that otherslocated within the city limits. if the real purpose of theorder made by this court was not to permit mining within the
pg no 706city limits without further scrutiny as in the case of bcategory stone quarries, we really do not see anyjustification as to why these stone quarries located outsidethe city limits but close to the heart of the city shouldnot have been subjected to such scrutiny. since the writpetitions have not been finally disposed of and the ordermade in regard to the a category quarries located outsidethe city limits by the judgment referred to above onlyexempted them from further scrutiny as was directed in
respect of the other quarries, we see no impediment in thematter of giving a re-look at the matter even with referenceto the a category quarries located outside the city limits. in this connection it is relevant to take note of thefact that the state government has already formed animprovement programme of the area by constituting a combinedbody for mussoorie and dehradun. the considerations whichhad weighed with the court on the basis of municipal limitshas indeed to be extended not to the entire area covered bythe new scheme. we are, therefore of the view that the acategory stone quarries in this area irrespectlve oflocation within or outside city limits should be subjectedto further order of this court and there is no legalimpediment for this court to do the same."we reiterate our opinion that by the order of 12th march,1985, the a category mining leases outside the city iimitswere only exempted from further scrutiny and not releasedfrom the proceedings. our order of 18th december, 1986, leftcertain aspects to be considered by the state andimmediately the central government responded by appointingthe second working group. we would like to reiterate what wehave already said in the order of 19th of october, 1987,that the examination by this court when it made the order of12th march, 1985, omitted to consider the impact of theforest (conservation) act of 1980 which was then a statutein force. if the provisions of the conservation act had beennoticed and impact thereof for the continuance of miningactivity had been considered, perhaps the court would havemade no exemptions and no mining may have been permitted.besides, if the court really intended to release the acategory mines outside the city limits, it could very wellpronounce that in clear terms.
pg no 707 in view of what we have indicated above, it is difficultto accept the stand taken by some of the lessees and by mr.nariman appearing for the intervener that a final order hasbeen by this court in regard to the a category mines outsidethe city limits of mussoorie. the writ petitions before us are not inter-partydisputes and have been raised by way of public interestlitigation and the controversy before the court is as towhether the social safety and for creating a hazardfessenvironment for the people to live in, mining in the areashould be permitted or stopped. we may not be taken to havesaid that for public interest litigations, procedural lawsdo not apply. at the same time it has to be remembered thatevery technicality in the procedural law is not available asa defence when a matter of grave public importance is forconsideration before the court. even if it is said thatthere was a final order, in a dispute of this type it wouldbe difficult to entertain the plea of res judicata. as we
have already pointed out when the order of 12th6 march,1985, was made, no reference to the forest (conservation)act of 1980 had been done. we are of the view that leavingthe question open for examination in future would lead tounnecessary multiplicity of proceedings and would be againstthe interests of society. it is mete and proper as also inthe interest of the parties that the entire question istaken into account at this stage. undoubtedly, the environment (protection) act, 1986 (29of 1986) has come into force with effect from 19th november,1986. under this act power is vested in the centralgovernment to take measures to protect and improve theenvironment. these writ petitions were filed as early as1983-more than three years before the act came into force.this court appointed several expert committees, receivedtheir reports and on the basis of materials placed beforeit, made directions, partly final and partly interlocutory,in regard to certain mines in the area. several directionsfrom time to time have been made by this court. as many asfour reportable orders have been given. the several partiesand their counsel have been heard for days together ondifferent issues during the three and a quarter years of thependency of the proceedings. the act does not purport to-and perhaps could not-take away the jurisdiction of thiscourt to deal with a case of this type. in consideration ofthese facts, we do not think there is any justification todecline the exercise of jurisdiction at this stage.ordinarily the court would not entertain a dispute for theadjudication of which a special provision has been made bylaw but that rule is not attracted in the present situationin these cases. besides it is a rule of practice andprudence and not one of jurisdiction. the contention against
pg no 708exercise of jurisdiction advanced by mr. nariman for theintervener and reiterated by some of the lessees before thiscourt must stand overruled. we shall now briefly indicate reasons in support of ourconclusion mentioned in the order of october 19, 1987, thatmining in this area should be stopped. kalidas, the greatest of the indian poets, sang thepraises of the himalayas in 'meghadoot' by describing it asthe loftiest mountain on earth surface located on the northof the country. the himalayan ranges apart from operating asa natural seal on the northern border against intruders,have influenced the climate, culture, ecology andenvironment of the sub continent. these are the ranges fromwhere originate several perennial rivers like the ganges andthe yamuna. these two rivers which mingle at allahabad andlater flow into the bay of bengal as one river have built upwhat is known as the gangetic belt-the most fertile part oflndia. the lcgendary tradition of our culture is deeply
associated with these two rivers. apart from providingsuccour to millions of people who inhabit this belt. yamunais said to have provided the backdrop of krishna leela. thecatchment area of this river is spread over the mussooriehills-otherwise known as the doon valley with which we areconcerned. before a quarter of a century, yamuna was havingadequate water flow through-out the year. unlike the gangeswhich has her main tributaries originating from the snow-clad regions of the mountain range and melting snow insummer helping the tributaries to be perennial, the yamunaused to receive the bulk of her water fromthe streamsjoining her in the lower regions. the doon valley used toreceive sumptuous rains during the season; the tree rootshelped the water to be stored; the lime stone mines operatedas aquifers. the stored water was released in a continuousprocess and that streams even without the support ofmelting snow, provided perennial supply tothe yamuna.assured of such supply, the twin cities of mussoorie anddehradun grew up. lower down, hundreds of villages and smalltowns had also sprung up. lime stone mining operations in the doon valley becamewide-spread during the decade between 1955 and 1965 and manyof the leases were granted in 1962. in the decade after1965. the depredation, of mining began to be felt. peace andtranquillity of the valley was gone. trees were felled atrandom and lush green forests disappeared. blasting affectedand shook up the hills. rocks and scree rolled down andkilled or injured the cattle, damaged the cultivable landsand adversely affected the villagers. the natural beauty of
pg no 709the queen of the hill stations was no more to be seen. withthe felling of the forests, rains became less, with thetrees gone and the lime stone dug out, the aquifers ceasedto exist. the streams got blocked by scree and stones andthe flow of water was substantially reduced. tourist trafficwas adversely affected. irrigation was no more possible. thetributaries no longer fed the yamuna sufficiently. dehradunexperienced scarcity of even drinking water. these led tothe despatch of the letter in july, 1983 to this court. the doon valley lime stone deposits are a gift of natureto mankind. underneath the soil cover there is an unseenstore house of bountry almost everywhere. similarly forestsprovide the green belt and are a bequest of the pastgenerations to the present. lime stone deposits if excavatedand utilised get exhausted while if forests are exploited,there can be regeneration provided reafforestation isundertaken. trees, however, take time to grow and ordinarilya 15 to 25 year period is necessary for such purpose. we have already indicated that several expert committeesappointed by this court have opined generally againstcontinuing the mining activity in the valley. the second
working group found in as late as 1987 that limited miningin the on-going mines was not congenial to ecological andenvironmental discipline. this court by its order on october19, 1987, (alr 1987 sc 2426) called the union of india: "..... to place before the court on affidavit theminimum total requirement of this grade of lime stone formanufacture of quality steel and defence armaments. theaffidavit should also specify as to how much of high gradeore is being imported into the country and as to whetherother indigenous sources are available to meet suchrequirement. this court would also require an affidavit fromresponsible authorities of the union of lndia as to whetherkeeping the principles of ecology, environmental protectionand safeguards and anti-pollution measures, it is in theinterest of the society that the requirements should be metby import or by taking other alternate indigenous sources ormining activity in this area should be permitted to alimited extent. the court expects the union of lndia tobalance these two aspects and place on record its stand notas a party to the litigation but as a protector of the
pg no 710environment in discharge of its statutory and socialobligation for the purpose of consideration of the court . . the two affidavits filed on behalf of the union of indiahave been dealt with elsewhere in the judgment and it wouldbe sufficient for the instant aspect to extract from theaffidavit of mr. seshan, secretary to the government in theministry of environment and forests, where he has stated : "5.1 union of india submits that from the point of viewof protection of the environment in the unique doon valley,it would be desirable that lime stone mining operations inthe valley are stopped completely." nariman questioned the value of this statement in viewof the indication in the affidavit that it was thedepartment's submission to the court. we do not think thatthe ministry secretary's affidavit can be brushed aside thatway. read in the background of the directions in the orderof 19th october, 1987, and in the sequence of the firstaffidavit not having been accepted by the court ascompliance, we must assume that mr. seshan has disclosed thestand of the union of india with full authority and with theintention of binding the union of india by his statement. we are separately dealing with the forest (conservation)act and its bearing and effect on this aspect. it issufficient to note that the act does not permit mining inthe forest area. we are also satisfied that if miningactivity even to a limited extent is permitted in future, itwould be not congenial to ecology and environment and thenatural calm and peace which is a special feature of thisarea in its normal condition shall not be restored. thistourist zone in its natural setting would certainly be at
its best if its serenity is restored in the fullest way. weare of the considered opinion that mining activity in thisvalley must be completely stopped but as indicated inanother part of this judgment such a situation will beavailable only after the original leases of the workingmines are over. it is time to turn to the contention relating toforests. air and water are the most indispensable gifts ofnature for preservation of life. abundant sun-shine togetherwith adequate rain keeps nature's generating force at work.human habitations all through the ages have thrived on riverbanks and in close proximity of water sources. forests havenatural growth of herbs which provide cure for diseases.
pg no 711our ancestors knew that trees were friends of mankind andforests were necessary for human existence and civilizationto thrive. it is these forests that provided shelter for the'rishies ' and accommodated the ancient 'gurukulas'. theytoo provided food and sport for our forefathers living inthe state of nature. that is why there is copious referenceto forests in the vedas and the ancient literature of ours.in ancient times trees were worshiped as gods and prayersfor up-keep of forests were offered to the divine. in theartharva veda (5.30.6) it has been said: "man's paradise is on earth; this living world is the beloved place of all ; it has the blessings of nature's bounties ; live in a lovely spirit." in due course civilization developed and men came tolive away from forests. yet the human community dependedfieavily upon the forests which caused rains and providedtimber, fruits, herbs and sports. with sufficient sun-shineand water there was luxuriant growth of forests in thetropical and semi-tropical zones all over theglobe. thencame the age of science and outburst of human population.man requiredmore of space for living as also forcultivation as well as more of timber. in that pursuit theforests were cleared and exploitation was arbitrary andexcessive; the deep forests were depleted; consequentlyrainfall got reduced; soil erosion took place. the earthcrust was washed away and places like cherapunji in assamwhich used to receive an average annual rainfall of 500inches suffered occasional drought. scientists came to realise that forests play a vitalrole in maintaining the balance of the ecological system.they came to know that forests preserve the soil and heavyhumus acts as a porous reservoir for retaining water andgradually releasing it in a sustained flow. the trees in theforests draw water from the bowls of the earth and releasethe same into the atmosphere by the process of transpirationand the same is received back by way of rain as a result of
condensation of clouds formed out of the atmosphericmoisture. forests thus help the cycle to be completed. treesare responsible to purify the air by releasing oxygen intothe atmosphere through the process of photosynthesis. ithas, therefore, been rightly said that there is a balance onearth between air, water, soil and plant. forests hold upthe mountains, cushion the rains and they discipline therivers and control the floods. they sustain the springs;they break the winds; they foster the bulks; they
pg no 712keep the air cool and clean. forests also prevent erosion bywind and water and preserve the carpet of the soil. in the second half of the 19th century felling of treescame to be regulated. in 1858, the department of forestrywas set up and in 1864 the first inspector general offorests was appointed. in the following year the firstindian forest act came into the statute book to be followedby another act in 1878 and yet another in 1927 which isstill in force providing measures of regulation. this acthas been amended in the various states and presentlyreference shall be made to the relevant amendments in uttarpradesh. laying the railway track and providing sleepers thereforrequired clearing of forest areas and cutting down of trees.during the second world war indian forests were very badlymauled for various defence purposes. by the time indiabecame independent it had about 2 per cent of the earth'sland area, 1 per cent of productive forest area 15 per centof world's population and 10 per cent of world's animallife-a situation indicative of the fact that there was acutedeficit of forest area. the government of lndia declared itsnational forest policy in 1452 which laid down that forestsshould occupy 33 per cent of the land surface as against 23per cent then attention was intended to the bestowed forexpansion of forests in each of the five-year plans thatfollowed with a view to rehabilitating the forests. thedemand occasioned by the growing population and the spreadof economic development and consequent demand of timber asraw material as also feul led a excessive exploitation ofthe forests and consequent clearing of forest areasnotwithstanding the declared of national forest policy. it is interesting to note that the national per capitaaverage of forest area works out to 0. 11 hectare as againstan international average of 1.5 hectare. state-wise,arunachal pradesh has per capita forest of 8.2.1 hectareswhich is the maximum and haryana has the minimum being 0.01hectare (figures based on census report of 1981 and thereport of the central forestry commission). while some ofthe advanced countries like australia, canada, germany,japan and united states have forest cover of higher area,on account of want of regulation and appropriate care and
attention, this unhappy situation has arisen in india. the birla institute of scientific research in its reporton social forestry in india: problems and prospects [1986]has indicated:
pg no 713 `the treeless expense of land provides an environmentleast conductive to healthy living. tree leaves recharge theatmosphere with life giving oxygen, take away excesscarbondioxide and transmit moisture to the atmosphere by wayof transpiration. it is estimated that one hectare ofwoodland consumes 3.7 tonnes of carbondioxide and gives out2 tonnes of oxygen per year. denied these beneficialprocesses, life becomes lead heavy. a tree-coveredenvironment is much healthier to live and work in. amongstthe immediately perceptible effects of loss of vegetativeprotection are soil erosion, floods and droughts. if treesand other vegetations are present, they bear the burnt ofwinds, heat, cold and rain water, first in their crowns andfoliage. the soil remains covered by humus, decomposinglitter and freshly fallen leaves which protect it fromdirect action of the adverse natural forces. in a woodedarea the flow of rain water gets regulated through theieaves and the spongy material overlying the soil; but in abarren, unprotected surface the rain drops hit the soildirectly and the water flows torrentially, dislodging andcarrying with it the soil participles which have takenhundreds of years to form. this results in disastrous floodsin lower areas causing damage to life and property. fastrunning water also causes landslides and other calamities enroute. with all the rain water having run away in the formof floods the land surface losses its resiliance to drierspells and severe droughts are caused. the removal of soilby water produces fertility and the productive capacity ofthe up-lands to a considerable degree. it is estimated that nearly 6,000 million tonnes of soilis washed away every year in floods. with that go 6.0million tonnes of nutrients-more than the amount that isapplied in the form of fertilisers." we shall now deal with legislative measures to preservethe forests and impact of such provisions on mining afterbriefly referring to the legislative power in regard toforests. "forest" was initially a state subject covered by entry19 in list ii of the seventh schedule: in 1976, under the42nd amendment the entry was deleted and entry 17-a in theconcurrent list was inserted. the change from the state listto the concurrent list was brought about following the
pg no 714reallsation of the central government that forests were ofnational importance and should be placed in the concurrentlist to enable the central government to deal with the
matter. the same amendment of the constitution brought inarticle 48-a in part iv providing thus: "the state shall endeavour to protect and improve theenvironment and to safeguard the forests and wild life ofthe country." article 51-a in part iv-a of the constitution insertedby the same amendment provided a set of fundamental dutiesand clause (g) runs thus: "it shall be the duty of every citizen of india- (g) to protect and improve the natural environmentincluding forests, lakes, rivers and wild life and to havecompassion for living creatures."1972 marks a watershed in the history of environmentalmanagement so far as india is concerned. the nationalcommittee of environment and planning and coordination wasset up and various steps were taken to implement therecommendations already made and to be made: thereafter. thenational commission on agricultural in 1976 noticed theinadequate implementation of the 1953 national forest policyand proposed the following amendments: (i) provision for prior approval of the centralgovernment before taking steps for dereservation ordiversion of forest lands to non-forest use. (ii) preventing and evicting encroachment of forestlands. (iii) safeguarding against monoculture practices inraising forest plantations so that preservation of habitatsfor natural flora and fauna is ensured. (iv) encouraging large scale industrial plantation tofoster growth of forest industries.
pg no 715 the problem of forest preservation and protection was nomore to be separated from the life style of tribals. theapproach required a shift from the dependence on law andexecutive implementation to dependence on the conscious andvoluntary participation of the masses. this requirededucating the masses as well as appropriate education of thedepartmental employees. in this background the forest(conservation) act of 1980 was enacted with which we proposepresently to deal after noticing certain provisions of theindian forest act of 1927. the forest act of 1927 deals with four categories offorests, namely- 1. reserved forests in chapter ii 2. village forests in chapter 111 3. protected forests in chapter iv 4. non-government forests in chapter v.the first three categories deal with forests which aregovernment property while the last refers to control overforests and lands which are not government property. most ofthe private forests covered under the fourth category were
earlier parts of estates which have now been abolished andthus such forests have also become government property. inuttar pradesh there have been several amendments of theforest act and chapter v-a has been incorporated whichprovides for control over forests of claimants. detailedprocedure has been laid in chapter ii in respect of reservedforests. section 3 vests power in the state government toreserve forests. the process for reservation of forestsstarts with section 4 and ends up with the final declarationunder section 20. section 27 vests power in the stategovernment to declare a forest to be no longer reserved. as noticed earlier, notwithstanding the regulatoryprovisions in the forest act of 1927 and the government'snational forest policy of 1952, forests generally gotrapidly depleted. to meet this alarming situation the forest(conservation) ordinance of 1980 was promulgated by thepresident and the ordinance was followed by the forest(conservation) act of 1980. the statement of objects andreasons, as far as relevant, point out:
pg no 716 "deforestation causes ecological imbalance and leads toenvironmental deterioration. deforestation had been takingplace on a large scale in the country and it had causedwidespread concern. with a view to checking further deforestation thepresident promulgated on the 25th october, 1980, the forest(conservation) ordinance, 1980. the ordinance made the priorapproval of the central government necessary fordereservation of forests and for use of forest land for non-forest purposes. the ordinance also provided for theconstitution of an advisory committee to advice the centralgovernment with regard to grant of such approval." section 2 of the act which is relevant provides: "notwithstanding anything contained in any other law forthe time being in force in a state, no state government orother authority shall make, except with the prior approvalof the central government. any order directing- (i) that any reserved forest (within the meaning of theexpression reserved forest) in any law for the time being inforce in that state or any portion thereof, shall cease tobe reserved ; (ii) that any forest land or any portion thereof may beused for any non-forest purpose. explanation- for the purposes of this section non-forestpurpose means breaking up or clearing of any forest land orportion thereof for any purpose other than reafforestation."thus the power which was vested in the state governmentunder section 27 of the indian forest act of 1927 or anyother law containing a similar provision is now exercisablesubject to prior approval of the a central government. this court dealt with the provisions of the 1980 act in
the case of ambica quarry works v. state of gujarat andors., [1987] 1 scc 213. the question of renewal of miningleases in gujarat came for consideration in this case before
pg no 717the court. at page 219 of the reports, it was stated: "the rules dealt with a situation prior to the cominginto operation of 1980 act. '1980 act' was an act inrecognition of the awareness that deforestation andecological imbalances as a result of deforestation havebecome social menaces and further deforestation andecological imbalances should be prevented. that was theprimary purpose writ large in the act of 1980. therefore,the concept that power coupled with the duty enjoined uponthe respondents to renew the lease stands eroded by themandate of the legislation as manifest in 1980 act in thefacts and circumstances of these cases. the primary duty wasto the community and that duty took precedence, in ouropinion, in these cases. the obligation to the societymustpredominate over the obligation to the individuals."again in paragraph 19, this court observed: "in the instant appeals the situation is entirelydifferent. the appellants are asking for a renewal of thequarry leases. it will lead to further deforestation or atleast it will not help reclaiming back theareas wheredeforestations have taken place. in that view of the matter,in the facts and circumstances of the case, in our opinion,the ratio of the said decision state of bihar v. banshi rammodi, [ 1985] 3 scc 643 cannot be made applicable to supportthe appellants' demands in these cases because the facts areentirely different here. the primary purpose of the actwhich must subserve the interpretation in order to implementthe act is to prevent further deforestation. the centralgovernment has not granted approval. ......"the ratio of the decision of this court in stare ofrajasthan v. hari shankar rajindra pal, [l965] 3 scr 402has obviously no application to the facts of this case. inbanshi ram modi' case (supra) what was being considered wasextension of the leases for another mineral which was foundwhile exploitation, under the existing mining lease wasundertaken. we agree with the view expressed by brothermukharji that the conservation act of 1980 applies torenewal as well and even if there was a provision forrenewal in the lease agreement on exercise of lessee'soption, the requirements of 1980 act had to be satisfiedbefore such renewal could be granted. many of these leases, as already indicated by us,expired in 1982. renewal had been applied for and in many of
pg no 718these cases the request for renewal was rejected. on theplea that the state had no right to reject the request forfirst renewal, the aggrieved lessees went before different
courts and obtained decrees or interim orders. we havealready pointed out that in the order of 12th march, 1985,this court vacated such orders or decrees regarding all ccategory and some b category mines. it is clear from thedirections contained in the order of 12th march, 1985, asalso the ratio of the judgment in the ambica quarry workscase (supra) that even if there has been an order of thecourt and no challenge is raised against such order thiscourt could invoke its jurisdiction to nullify the directionor order and if any order, direction or decree has beenpassedignoring the provisions of the conservation act of1980 the same would not be binding. we have been given tounderstand during the hearing of these cases that appealshave been preferred by the state of uttar pradesh wheredecrees have been passed directing renewal. when this courtleft the litigations to be continued, the conservation actof 1980 had not been noticed. therefore, liberty had beengranted to agitate the disputes arising out of refusal torenew. in view of the provisions in the conservation act andthe opinion expressed in ambica quarry works case (supra),with which we are in agreement, the decrees also would notbe sustainable where prior approval of the centralgovernment has not been obtained. we agree with brothermukharji that whether it is a case of first grant or renewalfollowing exercise of option by the lessee, the complianceof section 2 of the conservation act is necessary as acondition precedent. no useful purpose would be served byallowing the litigations to be continued in differentcourts, particularly when keeping the broad interest ofsociety with reference to ecology and environment, we havecome to the conclusion that mining in this area has to bestopped. notice has to be taken of the situation that theentire dispute has been before this court and the scope ofthe dispute is comprehensive. all parties are before thiscourt. parties have also been heard on various aspects atdifferent times. an order made by this court to nullify thedecrees in such circumstances would not be violative of theprinciples of natural justice. apart from the noticecontained in the court's order of 19th october, 1987, whereit had been specifically stated that this court was of theview that mining in the doon valley area should be totallystopped. the position was also made clear to differentparties in course of the hearing which continued for severalweeks. we, therefore, hold that if any decree or order hasalready been obtained from any court relating to renewal ofthese ieases, the same shall stand vacated and similarly anyappeal or other proceeding taken to obtain a renewal oragainst orders/decrees renewal shall also become nonest.
pg no 719 we shall now turn our attention to the consideration asto whether mining should be totally stopped outright or in a
phrased manner. in our order dated 14th october, 1987, we hadcategorically indicated that mining in this area has to bestopped but instead of outright closing down total miningoperations wewere of the view that mining activity mayhave to be permitted to the extent it was necessary in theinterest of defence of the country as also by way of thesafe-guarding of the foreign exchange position. pursuant toour direction in the said order (air 1987 sc 2426) the unionof lndia filed an affidavit on 18th november, 1987, throughdr. s. maudgal, director in the department ofenvironment,forests & wildlife in the ministry of environment andforests. that affidavit inter alia stated: "3.l the ministry of defence do not require any high-grade low silica limestone over and above what is needed forproduction of steel. therefore, the limestone requirement ofthe defence ministry are fully covered in the requirement ofthe steel industry in the country. 3.2 high-grade limestone with low silica content isrequired in steel production only in the units which areoperating on the ld process. as of today, only bhilai,rourkela, bokaro and tisco, jarnshedpur are operating on theld process. the requirement of low-silica limestone in 1986-87 as provided by the steel authority of lndia ltd. for itsplants at 2,20,550 tonnes with the break-up given in table-i.
table i source quantity received planned
1986-87 1987-88 upsmdc, dehradun 18,300 100.000 rsmdc 183,000 200,000 (gotann/jaisalmer lmported 19,250 100,000__________________________________________________________________
220,550 400,000___________________________________________________________________
pg no 720 3.3 in addition to these steel plants, durgapur steelplant & iisco, burnpur plant is also expected to switch overto the ld process by 1994-95. the requirement of low silicalimestone for the steel plants as projected in the report ofthe steel and mines, department of steel in march, 1987 isgiven in table-il. plant 1989-90 1994-95 1999-2000 bhilai steel 600 800 1,700 plant durgapur steel - 540 890 plant rourkela steel 340 580 920 plant bokaro steel 1,360 1,530 1,800
plant indian iron & - 330 610 steel co. ltd._____________________________________________________________________ sail total 2,300 3.780 5,990 tata iron & 480 810 810 steel co. ltd. vizag steel 300 550 750 plant mini steel 50 100 200 plants total 3,130 5,240 7,750 requirements______________________________________________________________________ 3.4 the occurrence of ld grade limestone deposits hasbeen identified at lambidhar. barkot (distt. dehradun) inu.p.. gotan and jaisalmer in rajasthan, solanin himachalpradesh and khorram in meghalaya. the deposits outsideu.p. have not, however, been prospected/explored in detail.detailed exploration of these deposits is necessary for thepreparation of mining and environmental manageement plantsbefore definite assessment of the extent of production ofld-grade from these deposits can be determined. jaisalmerbeing the most favoured deposit should be explored on
pg no 721priority. all the same. prima facie availability pattern ofthe ld-grade limestone from various deposits is in given intable iii.
table iii (ooo tonnes) location 1989-90 1994-95 1999-2000_________________________________________________________________________ gotan 400 800 800 jaisalmer'r 200 800 1, 000 lambidhar 240 450 450 barkot _ - 1.000 solan - 500 1,000 meghalya - 200 500 katni/satna 2,000 2,500 3,000______________________________________________________________________ total 3 , 840 5,250 7,750 requirement 3,130 5,240 7.750 surplus, deficit (-)290 - - __________________________________________________________________(subject to broad gauge link with jaisalmer) 3.5 data furnished by the six mine owners whose quarriesare operating shows that a total of 1,73.768 tonnes has beensupplied to the steel plants from dehradun-mussoorie areaduring 1986 which is approximately 25% of their limestoneproduction. in this context, the state government of u.p.have brought the following facts to our notice:
"it has to be pointed out that the dehradun mussoorielimestone belt also meets the requirement of our sugarindustry, and paper. the following table indicates theapproximate short and long term requirements of industriesthat are dependent upon limestone from this belt|
h pg no 722
(in tonnes)short term long term
sugar industry 1,50, 000 2,00,000 chemicals &r paper 3,00,000 4,00,000 industry there are over 90 sugar factories in the state which aretraditionally dependent on limestone from dehradun for usein the process of manufacture. sugar industry in our stateis a key agriculture based industry on which the economy offarmers of nearly 40 out of 57 districts depends. thelimestone needs of this industry are, therefore, importantfor its survival. the chemical and paper industry furtherset up in western and northern u.p. with large investments,is also dependent upon dehradun limestone for theirexistence. mini cement plants located in western u.p. andin the doon valley (m/s venus cements) utilise offgradelimestone generated from the mines consequent to theiroperations. this, in effect, helps with the control ofpollution that would have occurred from mine wastes ifdumped or allowed to roll into depressions, valleys orstream beds; it also helps with conservationand maximumutilisation of the resource mined. '' adverting to the question as to whether mining activityin this area should be permitted to a limited extent,keeping the principles of ecology in view, the affidavitstated: "the union government has all along taken the stand thatthe doon valley is a fragile eco-system and is endowed bynature with perennial water streams, lush green forests andscenic beauty. all these factors have contributed tomussoorie being called the queen of hill stations anddehradun becoming an important place of tourist attractionas well as centre of education. the unscientific anduncontrolled limestone quarrying operations spread over theentire 40 km. belt on the mussoorie slopes however,endangered the delicate ecological balance resulting in uglyscars, excessive debris flow, drying up of water streamsand perennial streams and rivulets and deforestation. taking note of the disastrous ecological consequences,
pg no 723the technical group constituted by the state and uniongovernments since 1979 have consistently recommendedonlycontrolled mining in this area. the technical expertcommittee constituted by the honourable supreme court under
the chairmanship of shri d.n. bhargav examined all theoperating quarries and came to the conclusion that all ofthem, to a larger of smaller extent, have violated thestatutory provisions relating to mines. conditions in someof the mines were considered to be so bad that 20 of thesewere closed immediately in 1983. the committee, under thechairmanship of shri d. bandy-opadhyaya examined the miningand environmental management plans prepared by parties andcame to the unanimous conclusions that none of there plansare satisfactory. therefore, the bandyopadhyayacommittee strongly recommended that none of the minesreviewed by it should be allowed to operate. it is relevantto reiterate here that closure of these mines has beenrecommended by the bandyopadhyaya committee not just on theground that they are located within the mussoorie citylimits but after due consideration of the environmentaiimplications, status of preparedness of mining andenvironmental management plans and capability of the lesseeto under-take mining operations on a scientific basis sothat the damage to life and property, apart fromenvironmental degradation. is avoided. none of the minesalready closed is, therefore, fit to be considered foroperation. it is the view of government that to prevent any furtherdegradation of the ecology and environment in the area andto allow for rejuvenation. it is essential that limestonemining operations, if they are to continue, should be on alimited scale and completely regulated to ensure that theyare done in an entirely scientific manner consistent withthe imperatives of preservation and restoration of theecology and environment in this area. in order to meet theessential requirements of steel industry, it would benecessary to maintain supply of low silica limestone fromthe dehradun mussoorie area. the state government of u.p.also has brought to our notice that certain other vitalindustrial and agricultural operations are dependent onlimestone supplies from this area. in view of theseconsiderations, it is felt that limestone mining on alimited scale may have to continue under strict regulation."
pg no 724 this affidavit of dr. maudgal was not accepted by thiscourt as it did not fulfil the requirement of the directionsgiven in the court's order dated 19th october, 1987.thencame another affidavit dated 24th february, 1988, by shrit.n. seshan, secretary in the ministry of environment andforests. this affidavit indicated that 90 per cent of thelow silica high grade limestone was supplied by therajasthan mines to the steel authority of india ltd. and 10per cent of supplies came from the dehradun quarries. tatairon and steel company at jamshedpur, however, received asizeable supply from the dehradun quarries. according to
this affidavit, in 1986, the total production of high gradelimestone in the dehradun-mussoorie area was 6.02 lakhtonnes. the affidavit indicated availability of suchlimestone in several other parts of the country. in regardto import of limestone and foreign exchange components, thisaffidavit indicated that as low silica high grade limestoneis available from indigenous sources, import thereof couldbe dispensed with. in paragraph 5 of this affidavit, thequestion as to whether keeping in view the principles ofecology, mining activity in the dehradun-mussoorie areacould be permitted to a limited extent, perhaps as pleadedin the earlier affidavit, has been dealt with. thisaffidavit stated| "5.2 now that high grade low silica limestone is alsoavailable in the extensive deposits covering large areas inthe state of rajasthan which can meet the requirements ofthe steel industry which also includes defence requirements,there is justification for disconstinuance of the existingmining operation in the dehradun-mussoorie area and, infact, complete closure of the said mines in this area." it is fact that while in the first affidavit, controlledand limited mining was suggested, in the second affidavitfiled after a gap of about three months total stoppage ofmining activity in this area has been stressed. counselappearing on behalf of the state of uttar pradesh and upsmdcoffered serious criticism against this changed stance and wewere called upon to reject the second affidavit also. we donot find any justification in this plea for rejection of theaffidavit. this court in its order of 19th october, 1987,had in clear terms indicated what aspects were exactlyrequired to be answered by the affidavit of the union ofindia. since the first affidavit did not answer thosepoints it was rejected and a further affidavit was directedto be filed. there can be no two opinions that both theaffidavits pleaded for banning of mining; but the firstaffidavit suggested controlled and limited mining inview
pg no 725of the demands while the second affidavit, on considerationof the fact that alternate sources were available for supplyof the limestone of the desired quality, asked for totalstoppage of mining operations. as we have already indicatedin another part of this judgment. awareness of theenvironmental problem has been gradually increasing andthough in the first affidavit, the union of india hadexpressed its view that limited and controlled mining couldbe permitted, on a reconsideration of the matter and takinginto account the relevant aspects for reaching itsconclusion, the union of india has come to adopt the viewthat there should be no mining in this area. we can wellgather why the upsmdc would feel aggrieved by the secondaffidavit but so far as the state of uttar pradesh is
concerned, we do not see any justification in its criticalstand against the second affidavit on the plea that thestand accepted in the first affidavit has been given a goby. maintenance of the environment and ecological balance isthe obligation of the state and the central governments andunless there was any real objection to the opinion of theunion of india as to continuing or closing down of miningactivity, it should have been taken in the proper light andthe little modified stand adopted in the second affidavitshould have been welcomed. in another part of our judgment we have found that theentire area is more or less forest. many portions arereserved while others constitute forest land. it isindisputable that mining operationsare detrimental toforest growth. in fact the union government in the ministryof environment and forest have on 31st may, 1988, informedthe secretaries of all the state governments in thedepartment of forest that even mining area below the forestswould affect the forests. the variation of the stand in the second affidavit thatmining activity should be totally stopped is certainly animprovement on the stand taken in the first affidavit but wedo not think there is any inconsistency in the standinasmuch as the justification in support of the plea oftotal closure has been indicated. even before any of these two affidavits was filed thiscourt in its order of 19th of october, 1987, had clearlyindicated that mining activity in this area should hetotally stopped. the view expressed in the second affidavitis in accord with what this court has stated. on assessmentof the factual position, we do not think there is anysubstance in the argument advanced on behalf of the uttarpradesh government, upsmdc or any other mine owner whichwould justify our rejecting the second affidavit. we would
pg no 726like to add that this is not a case of a somersault ascontended on behalf of the state government of 'uttarpradesh nor has it been occasioned by any illegitimateconsideration. the point which still remains to be dealt with iswhether mining activity should be totally stoppedimmediately. it is the accepted-position by all parties that lowsilica content limestone is necessary for manufacturingclass steel. the earlier ld process is being abandoned bynew factories and even some are switching over to newmethods but for quite some time there would be demand forlow cilica content limestone for manufacture of steel by theld process. the alternate source which has been indicated inthese two affidavits of the union of india is not readilyavailable to the fullest extent. the gotan-jaisalmer belt
has to be worked out in full swing and that would take sometime. the main difficulty for the jaisalmer production toreach the consumers is the location of the mining area. ithas no broad-gauge rail connection and admittedly thelocation is in the interior. the consumer would immediatelyface transport difficulty until there is conversion of therailway track to broad-gauge and surface transport facilityimproves. even if these facilities are made available, thedistant location is bound to reflect itself in the costfactor. the question of foreign exchange component does not seemto be very material as the required type of mineral isindigenously available and import may not be necessary whenthe production in rajasthan area increases. the fact that inthe recent past the tata iron and steel company has madesome import has indeed no real bearing on the question asthat import has been necessitated on account of the closureof the mines in this area and non-availability of thematerial from the alternate indigenous source. we have already recorded a finding elsewhere in thisjudgment that most of these mines are either within reservedforests or in forest lands, as covered by the u.p. amendmentof the forest act. to these areas the forest conservationact applies and to allow mining in these areas even understrictest control as a permanent feature would not only beviolative of the provisions of forest (conservation) act butwould be detrimental to restoration of the forest growth ina natural way in this area. once the importance of forestsis realised and as a matter of national policy and in theinterests of the community, preservation of forests isaccepted as the goal, nothing which would detract from that
pg no 727end should be permitted. in such circumstances we reiterateour conclusion that mining in this area has to be totallystopped. there was some controversy as to whether some of themines were located in the reserved forests. we have not madeany attempt to resolve that controversy here as, in ouropinion, whether the mines are within the reserved forestsor, in other forest area, the provisions of the conservationact apply. we do not agree with the submission advanced by mr.nariman for the intervener, mr. sibbal for the uttar pradeshgovernment, mr. yogeshwar prasad for the upsmdc, dr. singhvifor some of the mine owners and similar contentions advancedby other counsel of different mine lessees that there wouldbe a total stalemate in the manufacture of drugs and sugar,as also steel, in case mining activity is stopped; yet wewould accept this position that these would be hard-hit ifmining activity in this area is stopped all of a sudden.with the pressing demand in the market and discovery of
useful limestone deposits in other parts of the countryapart from what has been indicated in the second affidavitof the union of india the trade would adjust itself as everyeconomic activity does. we are, however, of the view thatthe position should be monitored and the switch-over fromthe present position to a total ban should be spread over aperiod and not be sudden. we have already taken note of the fact that fordifferent reasons several mines are closed down and onlysix, as indicated in another part of this judgment. areworking. now that we have found that some mining activityfor some more time in this area may be permitted understrict regulation, we have now to decide which of the minesmay be permitted to work and for what period as also subjectto what conditions. majority of the mining leases was granted in 1962. thelease period being 20 years. the original period of leasehas expired in all such cases where the leases commencedfrom 1962. but following are the mines where the originalgrant is still valid and their date of expiry is separatelyindicated :
pg no 728 s.no. name of the lessee lease no. valid up-to 1. u .p. s.m .d . c. 94 10.3. 1996 2. sh. r.k. oberai 72 10.4. 1994 3. punjab lime & 96 12.12.1989
lime-stone co.___________________________________________________________________________ apart from these three, there are four other mines whichare also operating under decrees/orders of courts as per thedetails below :______________________________________________________________________________ s. no. name of the lessee lease no. lease expired 1. punjab lime & l4(ii) 2. 12. 82
stone co. 2. ch. ved pal singh 16 2. l2.82 3. seth ram avtar 17 2. 12. 82 4. sh. c. c;. gujaral 76 15. 12. 82 in all these cases, the leases have expired and thelessor government refused to renew them. the lessees haveobtained orders from the court and are working continuously.in view of what we have held, the orders or decrees becomeinoperative and are deemed to have been set aside by thisjudgment. mining in these four leases must stop within onemonth from today. apart from the three working mines specified above wherethe original lease period is yet to expire, there are six
other a category mines with valid leases which are notworking now as per the particulars below :____________________________________________________________________________s.no. name of the lessee lease no. valid up-to____________________________________________________________________________1. new era minerals 4 25.2.19902. u. p. minerals 8 10.4.19943. rajgiri minerals 9 24.11.19924. anand brothers 67 15.2.19925. uttrakhand minerals98 12. 12 19896. vijayashree minerals99 20.3. 1990___________________________________________________________________________
pg no 729 these mines are not operating at present for one reasonor the other. on the 12th of may, 1985, the mines within themunicipal limits of mussoorie were directed to close downuntil they were cleared by the bandyopadhyay committee andthat committee did not clear any. so far as the first fivemines are concerned, they are either within the municipallimits or within the forest area. we do not think itappropriate to allow them to operate until their leaseperiods lapse particularly when we have reached theconclusion that mining operation in this area should closedown. an exception has to be made in the case of the minebeing lease no. 99 where the lease period has to expire in1990. the lease is of 15 acres of land and another 100 acresare from some private source. mr. jain appearing for thelessee had undertaken before us that over the 100 acres,there would be no mining operation and the lessee wouldimmediately restore vegetation over the area and full forestgrowth will be available in regard to the 100 acres. themine is neither within forest nor municipal area andminerals from this area would be removed not through thecity limits. he has also assured us that immediately afterthe lease period is over, which would be about a year andhalf from now, the 15 acres would also be subject to realforestation by the lessee. he has agreed to file aundertaking in this court which we direct him to, do withinfour weeks hence. on the undertaking being filed this mine,as a special case, shall be permitted to operate until theexpiry of the lease. the committee appointed under thisorder shall supervise the reafforestatian programme under-taken by the lessee of lease no. 99 and in case it is of theview that the undertaking is not being properly worked out.on the report of the committee to that effect, permission to
work the lessee may be varied. mr. jain appearng for another lessee and mr. pramoddayal appearing for the lessee in respect of lease no. 67had tried to make out specific cases. during the hearing ofthese cases we had felt impressed by what had been placedbefore us but since we have now taken a decision to closedown mining activity in the area we do not think freshmining operations where mining has already been stopped-whatever be the ground-should on principle be permitted. tomake out a special case for a few lesses from amongstsimilarly placed mine owners of small differences for beingpermitted to work out stopped mines, in our opinion, wouldnot be appropriate at this stage. on the other hand to treatthem all as a class and subject them to a common order wouldbe just and proper. we reiterate that the exception in thecase of lease no 99 is for testing the genuineness of therepresentation of the lessee and in consideration of thesmallness of the area.
pg no 730 we would like to notice at this place the contention ofdr. singvi that a category mine owners should not suffer onaccount of this court's order and similar treatment to all acategory mine owners should be given. there can be no twoopinions about the court extending equal treatment to allequally placed parties before it. it is, however, notcorrect that the a category mines which are operating andthose that are closed down are similarly situate. in fact,when the court made the earlier order asking for closingdown, the distinction was noticed and on that basis ordersinvolving different treatments had been made. it may be thatwe have not found the distinction to be a tenable one at alater stage. but in the peculiar situation emerging in thiscase we do not accept the submission of dr. singhvi thatthose a category mines which had stopped working should bepermitted to run. there are certain situations where in theinterest of general benefit to the community, interests ofindividual citizens may be over-looked. we are satisfiedthat this situation attracts that principle to operate andeven if some of the mine owners are worse affected than someothers, permission to reopen the mines located in theforests and within municipal limits cannot be granted with aview to compensating them for being placed at par with theless affected group. it is perhaps necessary to indicate why these three on-going mines whose original lease period has not lapsed arebeing permitted to continue mining. we have already takennote of the position that upsmdc is a public sectorundertaking of the state of uttar pradesh and there has beena huge investment by the state in this establishment. itgives sizeable output. though certain defects have beenpointed out in its activities by the working group, we are
of the opinion that if appropriately controlled, miningactivities can be regulated and simultaneouslyreafforestation can be activised. so far as r.k. oberai isconcerned, the working group has found least objectionagainst it. the lease of punjab lime & limestone companyshall have life of a little more than one year. all thesethree mines are running their initial lease period. noadditional exercises are necessary to make them operative.if any of these mines is closed down there would be problemof unemployment. in regard to the mines closed for more thanthree years, we do not think the labour is sitting idle andthe mine owner is paying them. they must have got employedelsewhere of they have lost their service and have taken toalternate engagement. in our opinion, therefore, allowingthese three on-going mines to operate for their initialperiod of lease is the most appropriate direction that canbe given during the switch over from the present position toone of complete closing down of mining operation. we,therefore permit these three mines to continue mining
pg no 731operation subject to compliance with all legal requirementsand the additional conditions whichwe shall hereafterindicate. the next aspect to be considered is as to under whatconditions mining operation by these three lessees should bepermitted. the objections raised by the working groupagainst the upsmdc are germane and legitimate. we shallrequire this lessee to meet all these objections within aperiod of four months from now. if by the end of december,1988, the lessee fails to comply with this direction to thesatisfaction of the monitoring committee which is beingsetup by this judgment, the monitoring committee isempowered to direct closing down of the mine subject to anyother direction of this court. so far as the other two minesare concerned, whatever objections have been raised by theworking committee shall also be removed within the same timelimit and on failure of compliance, they too shall bevisited with the same consequences. there is no dispute that continuance of miningoperations affects environment and ecology adversely and atthe same time creates a prejudicial situation againstconservation of forests. it is, therefore, necessary thateach of these working mines shall have to work with anundertaking given to the monitoring committee that all careand attention shall be bestowed to preserve ecological andenvironmental balance while carrying on mining operations.25% of the gross profits of these three mines shall becredited to the fund incharge of the monitoring committee insuch manner as the committee may direct and the committeeshall ensure maintenance of ecology and environment as alsoreafforestation in the area of mining by expending money
from the fund. in the event of expenses exceeding thecontribution by these three respective lessees, thecommittee shall report to this court for directions. on theexpiry of their respective leases, they shall not beentitled to carry mining operation and by operation of thisjudgment shall have to wind up. no application for renewalshall be entertained from them. these three lessees as alsoany other lessee shall not be entitled to anycompensationfor closing down of the mines under orders of this court. in the order of 12th march, 1985, a three-judge bench ofthis court had indicated that the mine owners who had beendisplaced should be rehabilitated. there is no material onrecord if any alternate provision has been made either bythe state of uttar pradesh or the union of india. on-goingleases have been terminated under orders of this court
pg no 732without provision for compensation. indisputablydisplacement has been suffered by these lessees and thesudden displacement must have up-set their activities andbrought about substantial inconvenience to them. the courthas no other option but to close down the mining activity inthe broad interests of the community. this, however, doesnot mean that the displaced mine owners should not beprovided with alternative occupation. pious observation oreven a direction in that regard may not be adequate, what isnecessary is a time frame functioning if rehabilitation isto be made effective. it is therefore, necessary that acommittee should be set up to over-see the rehabilitation ofthe displaced mine owners. the uttar pradesh government, asapprehended by many of these mine owners, by itself may notbe able to meet the requirements of the situation. it may bethat all the displaced mine owners may not find suitableplacement within the state of uttar pradesh. it is,therefore, necessary to associate of some other states inthe programme. unless a high powered committee is set upwherein union of india is also represented, the committee tobe constituted may not be effective and there may be lackof coordination. there is material that lime stone quarriesare available in rajasthan and gujarat. it is, therefore,necessary that representatives of these state governmentsare also on the committee. we accordingly direct a committeeto be set up with representatives of the union of india, thestate governments of uttar pradesh, rajasthan and gujarat.while effecting rehabilitation by giving alternate miningsites, ecology and environment will have to be considered.it is, therefore, necessary that that such committee theministry of environment should also be represented. apartfrom them there should at least be two experts. we directconstitution of a rehabilitation committee with thefollowing members: 1. secretary, department of mines, government of lndia-
chairman. 2. secretary, department of environment and forest.government of india-member. 3. secretaries, department of mining of the states ofuttar pradesh. rajasthan and gujarat-members. mr. anilaparwal of centre for science and environment, g-92,kalkaji, new delhi, and mr. subrata sinha, senior deputydirector general, geological survey of india, 27, jawaharlalnehru road, calcutta, are nominated as the expert members ofthis committee. the committee shall have an officer of thegrade of under secretary to the government of india as itssecretary and the minimum skelton staff for carrying its
pg no 733activities. for convenience, the office may be located forthe time being in the ministry of steel and mines at newdelhi. the ministry of environment and forest is directed todeposit a sum of rs.3 lacs in the registry of this courtwithin four weeks from today to be transferred to thecommittee for the purpose of the committee subject toappropriate accounts to be rendered to the ministryconcerned. the committee is directed to make an initialreport on the problem and the manner it proposes to tackleit within eight weeks from today. on the basis of suchreport, further directions shall be made. the laws in forceshall have to be kept in view and the above-named membersare directed to extend full cooperation with zeal and asense of under-standing of the problems so thatrehabilitation can be done as a part of the environmentalprogramme. the court is of the view that a monitoring committee isnecessary for reafforestation of the areas as also for over-seeing the running of the three mines. the state- of uttarpradesh has already undertaken a reafforestation programmein the area. the record, however, does not indicate much ofimprovement yet. we have taken note of the position that theuttar pradesh government has a master plan for the doonvalley spread over a quarter of century beginningwith1986. since the court has stepped in to close down miningoperation in this area except to a very limited extent, weare of the view that a high powered committee should be setup to look after reafforestation, mining, activities and allother aspects necessary to bring about natural normalcy inthe doon valley. mr. k.p. geetakrishnan, a member of theindian administrative service, now secretary, forest, wildlife and environment in the central government, in ouropinion, should be made the chairman of the monitoringcommittee. mr. d. bandy-opadhyay, a member of the indianadministrative service. now secretary, department ofrevenue in the central government. who, had headed acommittee set up by this court is aware of the problems ofthis area. we are of the opinion that he should be made a
member of the monitoring committee. the head of the indiandefence academy, the head of the indian forest lnstitute,the head ot the establishment of ongc (all located atdehradun), the secretary, forest department of the uttarpradesh and the chairmen of the mussoorie and dehradunmunicipalities, and two public spirited citizens-onebelonging to mussoorie and another to dehradun area are tobe the members of this committee. the two non-officialmembers shall be co-opted by the committee. the committeeshall have its office at dehradun in the accommodation to beprovided either by the ongc or the forest staff college. the
pg no 734government of uttar pradesh is directed to deposit a sum ofrs.5 lacs for creating the initial fund of the monitoringcommittee. the amount should be deposited in the registry ofthis court within four weeks from now. it shall be open tothe monitoring committee to appoint a skelton staff with thesuitable officers to run the establishment. we hope andexpect that the concerned governments will permit theirofficers to undertake the respective assignments in publicinterest and we expect the officers also to extend theirwhole-hearted support to work out the trust reposed in them.the monitoring committee shall have powersto over-seereafforestation in the area by the state of uttar pradeshand undertake an appropriate scheme of reafforestation. itshall ensure that mining activity by the three on-goingmines is carried out in accordancewith law and withappropriate safeguards from environment and ecology point ofview. it shall also ensure that the scree is removedfromthe natural streams and the flow of water is maintained.after the committee makes its initial report within eightweeks from now to the registry further directions asnecessary shall be given. it is not our intention to continue control over thesematters. once this court is satisfied that the committeesare operating on the right lines we shall consider whetherit is any longer necessary for the court to supervise theiractivity. before we part with the case, we must indicate ourappreciation of services rendered by the petitioners andtheir counsel to the cause, the cooperation andunderstanding extended by the mine owners, their counsel,the members of the several committees constituted by thecourt but for which these proceedings could not have come toterminate in the present manner. the records of the casehave become unusually bulky and but for the continuedassistance of mr. pramod dayal, a member of the bar of thiscourt, it would indeed have been difficult for us as alsoparties and their advocates to handle the matter with ease.mr. parmod dayal deserves our commendation for the labour hehas put in. he was appearing for some of the lessees but the
assisted the court very willingly as and when called upon.we are of the view that he should be paid a total sum ofrs.5,000 (rupees five thousand only) for the servicesrendered. we direct the union of india to deposit the saidamount with the registry of this court within two weeks fromnow. this amount when deposited shall be paid to mr. parmoddayal.
pg no 735 the writ petitions are disposed of. there would be noorder for a costs. we direct that the reports of the twocommittees, as and when received, shall be placed beforethis court for directions.r.s.s.
petitions disposed of.
petitioner:m.c. mehta
vs.
respondent:union of india & others
date of judgment22/09/1987
bench:venkataramiah, e.s. (j)bench:venkataramiah, e.s. (j)singh, k.n. (j)
citation: 1988 air 1115 1988 scr (2) 530 1988 scc (1) 471 jt 1988 (1) 69
act: constitution of india, 1950: articles 48a and 51a-stateto protect and improve environment-fundamental duty of everycitizen to improve natural environment. environmental law water (prevention and control of pollution) act, 1974and environment (protection) act, 1986:
'environment'-discharge of effluents from tannery intothe river ganga-necessity to establish primary treatmentplants-closure of tanneries directed on failure to comply-life, health and ecology have great importance. practice and procedure: court can issue appropriatedirections if it finds public nuisance being committed andstatutory authorities not taking adequate steps to rectifythe grievance.
headnote: the petitioner, an active social worker, filed apetition before this court complaining that neither thegovernment nor the people were giving adequate attention tostop the pollution of the river ganga and it was, therefore,necessary to take steps for the purpose of protecting thecleanliness of the stream in the river ganga which was infact the life sustainer of a large part of the northernindia, and sought the issue of a writ/order/direction in thenature of mandamus to the respondents other than respondentsnos. 1 and 7 to 9 restraining them from letting out thetrade effluents into the river ganga till such time they putnecessary treatment plants for treating the trade effluentsin order to arrest the pollution of water in the said river. this court directed issue of notice under order 1 rule8 of the280code of civil procedure treating the case as arepresentative action by publishing the gist of the petitionin the newspapers in circulation in northern india andcalling upon industrialists and the municipal corporationsand town municipal councils having jurisdiction over theareas through which the river ganga flows to appear beforethe court to show cause as to why direction should not beissued as prayed for by the petitioner asking them not toallow trade effluents and sewage into theriver gangawithout appropriately treating them before discharging theminto the river. pursuant to the aforesaid notice a large number ofindustrialists and legal bodies entered appearance. somefiled counter affidavits ex-plaining the steps taken by themfor treating trade effluents before discharging them intothe river. the case against the tanneries at jajmau, kanpur, wasfirst taken up by the court for consideration. forty threerespondents admitted in their counter affidavits that thetanneries discharged their trade effluents into the sewagenallah which led to the municipal sewage plant before theywere thrown into the river ganga. the court was informed that six of the tanneries had
already set up and fourteen were engaged in construction ofprimary treatment plants, and some others pleaded for timeto do so. it was submitted on behalf of the respondents thatit would not be possible for them to have secondary systemfor treating waste water in view of the enormous expenditureinvolved, which the tanneries would not be able to meet.some of the tanneries neither appeared nor were representedby counsel in this court. issuing interim directions, this court,^ held: 1.1 article 48-a of the constitution providesthat the state shall endeavour to protect and improve theenvironment and to safeguard the forests and wild life ofthe country. article 51-a of the constitution imposes as oneof the fundamental duties on every citizen the duty toprotect and improve the natural environment includingforests, lakes, rivers and wild life and to have campassionfor living creatures. [285c-d] realising the importance of the prevention and controlof pollution of water for human existence, parliament passedthe water (prevention and control of pollution) act, 1974,to provide for the281prevention and control of water pollution and themaintaining or restoring of wholesomeness of water, for theestablishment, with a view to carrying out the purposesaforesaid of boards for the prevention and control of waterpollution, for conferring on and assigning to such boardspowersand functions relating thereto and for mattersconnected therewith sections 16 and 17 of the act describesthe functions of the central and the state board. the actwas adopted by the state of uttar pradesh. in addition,parliament also passed the environmental (prevention) act,1986 which came into effect from november, 1986 throughoutindia. [288b-d; 289a, f] 1.2 notwithstanding the comprehensive provisionscontained in the act of 1974, no effective steps appear tohave been taken by the state board so far to prevent thedischarge of effluents of the jajmau near kanpur to theriver ganga. the fact that such effluents are being firstdischarged into the municipal sewerage does not absolve thetanneries from being proceeded against under the provisionsof the law in force since ultimately the effluents reach theriver ganga from the sewerage system of the municipality.not much has been done even under the act of 1986 by thecentral government to stop the grave public nuisance causedby the tanneries at jajmau, kanpur. [289-e; 290c] 1.3 there is no doubt that the discharge of the tradeeffluents from the tanneries into the river ganga has beencausing considerable damage to the life of the people whouse the water of the river and also to the aquatic life in
the river. the effluents discharged from a tannery is 10times noxious when compared with the domestic sewage whichflows into the river from any urban area on its banks. thetanneries at jajmau, kanpur cannot be allowed to continue tocarry on the industrial activity unless they take steps toestablish primary treatment plant. [298e-f] no doubt it may not be possible for the tanneries toestablish immediately the secondary system plant in view ofthe large expenses involved, but having regard to theadverse effect the effluents are having on the river water,the tanneries at jajmau, kanpur, should at least set upprimary treatment plants, which is the minimum that thetanneries should do in the circumstances of the case. thefinancial capacity of the tanneries should be considered asirrelevant while requiring them to establish primarytreatment plants. just like an industry which cannot payminimum wages to its workers cannot be allowed to exist, atannery, which cannot set up a primary treatment plant,cannot be permitted to continue to be in existence for theadverse282effect on the public at large which is likely to ensue bythe discharging of the trade effluents from the tannery tothe river ganga would be immense and it will outweigh anyinconvenience that may be caused to the management and thelabour employed by it on account of its closure. moreover,the tanneries involved in this case are not taken bysurprise. for several years they are being asked to takenecessary steps to prevent the flow of untreated water fromtheir factories into the river. some of them have alreadycomplied with the demand. [298c-e] 1.4 in cases of this nature this court may issueappropriate directions if it finds that the public nuisanceor other wrongful act affecting or likely to affect publicis being committed and the statutory authorities which arecharged with the duty to prevent it are not taking adequatesteps to rectify the grivevance. for every breach of rightthere should be a remedy. [298f-g] it is unfortunate that a number of tanneries at jajmaueven though they are aware of these proceedings have notcared even to enter appearance in this court to expresstheir willingness to take appropriate steps to establish thepretreatment plants. so far as they are concerned, they aredirected to stop running of their tanneries and also not tolet out trade effluents either directly or indirectly intothe river ganga without subjecting the trade effluents to apretreatment process by setting up primary treatment plantsas approved by the state board with effect from october 1,1987. time granted till 31.3.1988 to other tanneries who aremembers of the hindustan chambers of commerce and the othertanneries to establish primary treatment plants within six
months. if any of these tanneries does not set up a primarytreatment plant within 31.3.1988 such a tannery will stopbusiness with effect from 1.4.1988. [298g-h; 299d, g-h;300a] such of those tanneries who have already put up primarytreatment plants may continue running provided they keep theplants in sound working order.[299fl the central government, the uttar pradesh board,established under the provisions of the water (preventionand control of pollution) act, 1974 and the districtmagistrate, kanpur are directed to enforce this order. [30obl per singh, j: (supplementing) the pollution of the river ganga is affecting the life,health and283ecology of the indo-gangetic plain. the (government as wellas parliament both have taken a number of steps to controlthe water pollution, but nothing substantial has beenachieved. no law or authority can succeed in removing thepollution unless the people cooperate. it is the sacred dutyof all those who reside or carry on business around theriver ganga to ensurethe purity of ganga. tanneries atjajmau area near kanpur have been polluting the ganga in abig way. though notices were issued many industrialists havenot bothered either to respond to the notice or to takeelementary steps for the treatment of industrial effluentbefore discharging the same into the river. those tannerieswhich have failed to take minimum steps required for theprimary treatment of industrial effluent are directed to beclosed. no doubt closure of tanneries may bringunemployment, loss of revenue, but life, health and ecologyhave greater importance to the people. [301g-h; 302a-b]
judgment: original jurisdiction: writ petition no. 3727 of 1985 under article 32 of the constitution of india. m.c. mehta (petitioner-in-person). b. datta, additional solicitor general, r.p. kapur, p.psingh and ms. a subhashini for respondent nos. 2 and 3 r.a. gupta for respondent no. 87. s.k. dholakia, deepak k. thakur, mukul mudgal and p.narasimhan for respondent no. 89. miss bina gupta, b.p. singh, s.r. srivastava, krishankumar, vineet kumar, r. mohan, mrs. shobha dikshit, a.sharan, d. goburdhan, mrs. g.s. mishra, parijat sinha, r.c.verma, r.p. singh, ranjit kumar, r.b. mehrotra, manoj swarup& co. raj birbal, j.b.d. & co. s.s. khanduja, b.p singh,e.c. aggrawala, khaitan & co., a.k. srivastava, swarup john
& co., mehta dave, r.s. sodhi, subodh markandey, t.v.s.n.chari, ashok grover, narain and p.c. kapur for therespondents. b.r.l. iyenger and surya kant for the intervener. the judgment of the court was delivered by venkataramiah, j. this is a public interest litigationthe284petitioner who is an active social worker has filed thispetition inter alia for the issue of a writ/order/directionin the nature of mandamus to the respondents other thanrespondents 1, and 7 to 9 restraining them from letting outthe trade effluents into the river ganga till such time theyput up necessary treatment plants for treating the tradeeffluents in order to arrest the pollution of water in thesaid river. respondent 1 is the union of india, respondent 7is the chairman of the central board for prevention andcontrol of pollution, respondent 8 is the chairman, uttarpradesh pollution control board and respondent 9 is theindian standards institute. water is the most important of the elements of nature.river valleys are the credles of civilization from beginningof the world. aryan civilization grew around the towns andvillages on the banks of the river ganga. varanasi which isone of the cities on the banks of the river ganga isconsidered to be one of the oldest human settlements in theworld. it is the popular belief that the river ganga is thepurifier of all but we are now led to the situation thataction has to be taken to prevent the pollution of the waterof the river ganga since we have reached a stage that anyfurther pollution of the river water is likely to lead to acatastrophe. there are today large towns inhabited bymillions of people on the banks of the river ganga. thereare also large industries on its banks. sewage of the townsand cities on the banks of the river and the trade effluentsof the factories and other industries are continuously beingdischarged into the river. it is the complaint of thepetitioner that neither the government nor the people aregiving adequate attention to stop the pollution of the riverganga. steps have, therefore, to be taken for the purpose ofprotecting the cleanliness of the stream in the river ganga,which is in fact the life sustainer of a large part of thenorthern india. when this petition came up for preliminary hearing, thecourt directed the issue of notice under order 1 rule 8 ofthe code of civil procedure treating this case as arepresentative action by publishing the gist of the petitionin the newspapers in circulation in northern india andcalling upon all the industrialists and the municipalcorporations and the town municipal councils havingjurisdiction over the areas through which the river ganga
flows to appear before the court and to show cause as to whydirections should not be issued to them as prayed by thepetitioner asking them not to allow the trade effluents andthe sewage into the river ganga without appropriatelytreating them before discharging them into the river.pursuant to the said notice a large number of industrialistsand local bodies have entered285appearance before the court. some of them have filedcounteraffidavits explaining the steps taken by them fortreating the trade effluents before discharging t-hem intothe river. when the above case came up for considerationbefore the court on the last date of hearing we directedthat the case against the tanneries at jajmau areanearkanpur would be taken up for hearing first. respondents 14to 87 and 89 are the tanneries near kanpur. of themrespondents 16 to 32, 34 to 36, 43, 47, 51, 52, 54, 55, 57,58, 60 to 62, 64, 67 to 69, 72, 74, 75, 77 to 82, 85, 87 and89 are represented by counsel. the remaining tanneries didnot appear before the court at the time of the hearing norwere they represented by any counsel. before proceeding to consider the facts of this case itis necessary to state a few words about the importance ofand need for protecting our environment. article 48-a of theconstitution provides that the state shall endeavour toprotect and improve the environment and to safeguard theforests and wild life of the country. article 51-a of theconstitution imposes as one of the fundamental duties onevery citizen the duty to protect and improve the naturalenvironment including forests, lakes, rivers and wild lifeand to have compassion for living creatures. theproclamation adopted by the united nations conference on thehuman environment which took place at stockholm from 5th to16th of june, 1972 and in which the indian delegation led bythe prime minister of india took a leading role runs thus:
"1. man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. in the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights-even the right to life itself. 2. the protection and improvement of the human environment is a major issue which affects
the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all governments.
286 3. man has constantly to sum up experience and go on discovering, inventing, creating and advancing. in our time man's capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. we see around us growing evidence of man-made harm in many regions of the earth; dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere; destruction and depletion of irreplaceable resources; and gross deficiencies harmful to the physical, mental and social health of man, in the man-made environment; particularly in the living and working environment. a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well- being depend. conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. there are broad vistas for the enhancement of environmental quality and the creation of a good life. what is needed is an enthusiastic but calm state of mind and intense but orderly work. for the purpose of attaining freedom in the world of nature, man must use knowledge to build in collaboration with nature a better environment. to defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of world-wide economic and social development. to achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. individuals in all walks of
life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environ-
287 ment of the future. local and national governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. international co-operation is also needed in order to raise resources to support the developing countries carrying out their responsibilities in this field. a growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive co-operation among nations and action by international organizations in the common interest. the conference calls upon the governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity." the proclamation also contained certain common convictions of the participant nations and made certain recommendations on development and environment. the common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon eco systems, that states shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of development countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind, that states have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other states or areas beyond the limit of national jurisdiction, that it will be essential in all cases to consider the
systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate
288 and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. these are only some of the statements of principles proclaimed by the stockholm conference. (vide lal's commentaries on water and air pollution laws (2nd edn. ) pages 6-7
realising the importance of the prevention and controlof pollution of water for human existence parliament haspassed the water (prevention and control of pollution) act,1974 (act 6 of 1974) (hereinafter referred to as 'the act')to provide for the prevention and control of water pollutionand the maintaining or restoring of wholesomeness of water,for the establishment, with a view to carrying out thepurposes aforesaid, of boards for the prevention and controlof water pollution, for conferring on and assigning to suchboards powers and functions relating thereto and for mattersconnected therewith. the act was passedpursuant toresolutions passed by all the houses of legislatures of thestates of assam, bihar, gujarat, haryana, himachal pradesh,jammu and kashmir, karnataka, kerala, madhya pradesh,rajasthan, tripura and west bengal under clause (1) ofarticle 252 of the constitution to the effect that theprevention and control of water pollution should beregulated in those states by parliamentary legislation. theact has been since adopted by the state of uttar pradeshalso by resolutions passed in that behalf by the houses oflegislature of the said state in the year 1975 (videnotification no. 897/ix-3-l00-74 dated 3.2.1975). section 24of the act prohibits the use of any stream or well fordisposal of polluting matter etc. it provides that subjectto the provisions of the said section no person shallknowingly cause or permit any poisonous, noxious orpolluting matter determined in accordance with suchstandards as may be laid down by the state board to enterwhether directly or indirectly into any stream or well or noperson shall knowingly cause or permit to enter into anystream any other matter which may tend either directly or incombination with similar matters to impede the proper flowof the water of the stream in a manner leading or likely tolead to a substantial aggravation of pollution due to othercauses or of its consequences. the expression stream isdefined by section 2(j) of the act as including river, watercourse whether flowing or for the time being dry, inlandwater whether natural or artificial, sub-terranean waters,
sea or tidal waters to such extent or as the case may be tosuch point as the state government may by notification inthe official gazette,289specify in that behalf. under the act it is permissible toestablish a central board and the state boards. thefunctions of the central board and the state boards aredescribed in section 16 and 17 respectively. one of thefunctions of the state board is to inspect sewage or tradeeffluents, works and plants for the treatment of sewage andtrade effluents, and to review plans, specifications orother data relating to plants set up for the treatment ofwater, works for the purification and the system for thedisposal of sewage or trade effluents. 'trade effluent'includes any liquid, gaseous or solid substance which isdischarged from any premises used for carrying on any tradeor industry, other than domestic sewage. the state board isalso entrusted with the work of laying downstandards oftreatment of sewage and trade effluents to be dischargedinto any particular stream taking into account the minimumfair weather dilution available in that stream and thetolerance limits of pollution permissible in the water ofthe stream, after the discharge of such effluents. the stateboard is also entrusted with the power of making applicationto courts for restraining apprehended pollution of water instreams or wells. notwithstanding the comprehensiveprovisions contained in the act no effective steps appear tohave been taken by the state board so far to prevent thedischarge of effluents of the jajmau near kanpur to theriver ganga. the fact that such effluents are being firstdischarged into the municipal sewerage does not absolve thetanneries from being proceeded against under the provisionsof the law in force since ultimately the effluents reach theriver ganga from the sewerage system of the municipality. in addition to the above act, parliament has alsopassed the environment (protection) act, 1986 (29 of 1986)which has been brought into force throughout india witheffect from november 19, 1986. section 3 of this act conferspower on the central government to take all such measures asit deems necessary or expedient for the purpose ofprotecting and improving the quality of the environment andpreventing, controlling and abating environmental pollution.'environment' includes water, air and land and the inter-relationship which exists among and between water, air andland and human beings, other living creatures, plants,micro-organism and property. (vide section 2(a) of theenvironment (protection) act, 1986). under section 3(2)(iv)of the said act the central government may lay downstandards for emission or discharge of environmentalpollutants from various sources whatsoever. notwithstandinganything contained in any other law but subject to the
provisions of the environment (protection) act, 1986, thecentral government may under section s of the290act, in the exercise of its powers and performance of itsfunctions under that act issue directions in writing to anyperson, officer or authority and such authority is bound tocomply with such directions. the power to issue directionsunder the said section includes the power to direct theclosure, prohibition or regulation of any industry,operation or process or stoppage or regulation of the supplyof electricity or water or any other service. section 9 ofthe said act imposes a duty on every person to take steps toprevent or mitigate the environmental pollution. section 15of the said act contains provisions relating to penaltiesthat may be imposed for the contravention of any of theprovisions of the said act or directions issued thereunder.it is to be noticed that not much has been done even underthis act by the central government to stop the grave publicnuisance caused by the tanneries at jajmau, kanpur. all the tanneries at jajmau, kanpur which wererepresented by counsel, except respondent nos. 87 and 89have relied upon a common counter-affidavit filed by themand their case is argued by shri s.k. dholakia andshrimukul mudgal. respondent no. 87 is represented by shri r.p.gupta and respondent no. 89 is represented by shri p.narasimhan. there is not much dispute on the question thatthe discharge of the trade effluents from these tanneriesinto the river ganga has been causing considerable damage tothe life of the people who use the water of the river gangaand also to the aquatic life in the river. the tanneries atjajmau in kanpur have themselves formed an associationcalled jajmau tanners pollution control association with theobjects among others: (1) to establish, equip and maintain laboratories,workshop, institutes, organisations and factories forconducting and carrying on p experiments and to providefunds for the main objects of the company. (2) to procure and import wherever necessary thechemicals etc. for the purpose of pollution control intanning industries. (3) to set up and maintain common effluent treatmentplant for member tanners in and around jajmau. (4) to make periodical charges on members for theeffluent treatment based on the benefit he/it derives fromtime to time to meet the common expenses for maintenance,replacement incurred towards effluent treatment.291 in the fiscal plan for setting up common effluenttreatment plants for indian tanning industry-(march, 1986)prepared by the committee constituted by the directorategeneral of technical development (government of india) it is
observed thus:- "leather industry is one of the three major industries besides paper and textiles consuming large quantities of water for processing of hides and skins into leather naturally most of the water used is discharged as wastewater. the wastewater contains putrescible organic and toxic inorganic materials which when discharged as such will deplete dissolved oxygen content of the receiving water courses resulting in the death of all acquatic life and emanating foul odour. disposal of these untreated effluents on to land will pollute the ground water resources. discharging of these effluents without treatment into public sewers results in the choking of sewers. realising the importance of keeping the environment clean, the government of india has enacted the water pollution control act (central act 6 of 1974) and almost all the state government have adopted the act and implementing the act by forming the pollution control boards in their respective states. the pollution control boards have been insisting that all industries have to treat their effluents to the prescribed standards and leather industry is no exception to this rule. tanneries situated all over the country have been faced with the problem of treating their effluents. seized with the problem of finding out a solution, the central leather research institute, madras has brought out a management investment report (clri core committee report) as early as 1976 which contains 14 flow sheets indicating the treatment technologies for various types of leather processing techniques, quantity of effluents etc. including the cost of treatment."
a monograph entitled 'treatment technology of tanneryeffluents' prepared by s. rajamani, w. madavakrishna and g.thyagarajan of the central leather research institute,adyar, madras states that generally the wastewater from beamhouse process namely soaking, liming, deliming etc. arehighly alkaline containing decomposing organic matter, hair,lime sulphide etc. and is nearly ten times as strong asdomestic sewage and refers to the various methods292by which the effluents of the tanneries could be treatedbefore their discharge into any river. they recommend fourtypes of wastewater treatment technology sofar as thetanneries are concerned -1) segregation or mixing ofsuitable sectional waste water from different processes; (2)primary treatment; (3) secondary biological treatment; and
(4) disposal of solid wastes from the treatment system. thesaid monograph explains the work at the primary treatmentunit thus:-
"the primary treatment units principally comprise of coarse screens, two numbers of settling tanks and sludge drying beds. the settling tank, each of about 1-2 days capacity acts as an equalisation- cum-setting tank as well. as an alternative, clarifier can be provided in place of settling tank for treating higher capacity effluents. depending on the quality of composite effluent, addition of neutralising chemicals like lime, alum, ferric chloride etc. would be required for effective precipitation of chromium and removal of suspended solids in the sedimentation process. the sludge from the settling tanks and clarifier is removed and dried on sludge drying beds made up of filtering media gravel, sand and supporting masonary structure. for operational reasons, sludge drying beds are divided into four or more compartments. the dried sludge from the sludge drying beds can be used as manure or for landfill if it is vegetable tannery waste. in case of chrome tannery waste, the dried sludge should be buried or disposed off suitably as per the directions of regulatory agencies and local bodies. "
the secondary treatment units are explained in the saidmonograph thus:
"the pre-treated effluent needs suitable secondary biological treatment to meet the pollution control standards. the general biological treatment units which can be adopted under indian conditions are anaerobic lagoon, aerated lagoon, extended aeration systems like oxidation ditch, activated sludge process etc. anaerobic lagoon is a simple anaerobic treatment unit suitable for effluents with high bod like vegetable tannery (raw to e. 1) wastewater. in depth of the lagoon varies from 3-5 metres and detention time from l0-20 days
293 depending upon the pollutional load and atmospheric conditions. this is an open type digester with no provision for gas collection. no power is required for this system and its performance is proved to be efficient in south indian conditions. anaerobic contract filter is also an anaerobic treatment unit. this is a closed tank type unit made up of r.c.c. or masonry structure
filled up with media like broken granite stones etc. this unit occupies less land area since the detention time is about 1-2 days only. this system is reported to be efficient for treating high organic load, but the capital cost would be comparatively high. aerated lagoon is a shallow water tight pond of about 2-3 metres depth with a detention time of about 4-6 days. fixed or floating type surface aerators are provided to transfer oxygenfrom atmospheric air to the effluent for biological treatment using micro-organisms under aerobic conditions. the system is suitable for treating low organic load. extended aeration systems like 'activated sludge process' and 'oxidation ditch' are the improved aerobic biological treatment systems occupying less land area since the detention time/capacity would be only about 1-2 days. these units require secondary settling tank and sludge recirculation arrangements. extended aeration systems are proved to be efficient. the operational and maintenance cost is comparatively high for smaller installations, but economical for treatment capacity of 150 m3 and above per day. "
a study of the conditions prevailing at jajmau, kanpurwas made by the sub-committee on effluent disposalconstituted by the development council forleather andleather goods industries along with the various tanneriessituated in some other parts of india and in its reportsubmitted in april, 1984, the sub-committee has observed inthe case of the tanneries at jajmau, kanpur thus:-
"in the case of jajmau, kanpur, the committee visited few tanneries where the effort has been made to have primary treatment of the effluent before it is dis-
294 charged to the common drain/the river ganges. there are 60 tanneries in jajmau which will be covered under joint effluent disposal. the total production is to the tune of 12000 hides with a total discharge of 5 million litres per day. the state government has taken appropriate steps in preparation of the feasibility report under the guidance of u.p. pollution control board. this proposal wasalso supported by central pollution board, delhi by sharing the total fee of rs.80,000 to be paid to the public health engineering consultancy, bombay which has prepared the report with the help of iit, bombay. the report suggests that each tannery should make arrangement for the
primary treatment of their effluent and then it will be discharged into common treatment plant."
there is a reference to the jajmau tanneries in 'anaction plan for prevention of pollution of the ganga'prepared by the department of environment, government ofindia in the year 1985, which is as under:-
"1.1 the ganga drains eight states himachal pradesh, punjab, haryana, uttar pradesh, rajasthan, madhya pradesh, bihar, west bengal and the union territory of delhi. it is also the most important river of india and has served as the cradle of indian civilization. several major pilgrim centres have existed on its banks for centuries and millions of people come to bathe in the river during religious festivals, especially the kumbhs of haridwar and allahabad. many towns on the ganga, e.g., kanpur. allahabad, patna and calcutta have very large populations and the river also serves as the source of water supply for these towns. the ganga is, however, being grossly polluted especially near the towns situated on its banks. urgent steps need to be taken to prevent this pollution and restore the purity of river water. 2.0. sources of pollution 2.1 the main sources of pollution of the ganga are the following:- urban liquid waste (sewage, storm drainage mixed with sewage, human, cattle and kitchen wastes carried by drains etc. )
295 industrial liquid waste a surface run-off of cultivated land where cultivators use chemical fertilisers, pesticides, insecticides and such manures the mixing of which may make the river water unsafe for drinking and bathing. surface run-off from areas onwhich urban solid wastes are dumped surface run-off from areas on which industrial solid wastes are dumped ......................................... 4.4.12 effluent from industries: under the laws of the land the responsibilty for treatment of the industrial effluents is that of the industry. while the concept of 'strict liability' should be adhered to in some cases, circumstances may require that plans for sewerage and treatment systems should consider industrial effluents as well. clusters of small industries located in a contiguous area near the river bank
and causing direct pollution to the river such as the tanneries in jajmau in kanpur is a case in point. in some cases, waste waters from some industrial units may have already been connected to the city sewer and, therefore, merit treatment along with the sewage in the sewage treatment plant. it may also be necessary in some crowded areas to accept wastewaters of industries in a city sewer to be fed to the treatment plant, provided the industrial waste is free from heavy metals, toxic chemicals and is not abnormally acidic or alkaline. in such circumstances, scheme proposals have to carefully examine the case of integrating or segregating industrial wastes for purposes of conveyance and treatment as also the possibilities for appointment of capital and operating costs between the city authorities and the industries concerned." (emphasis added)
appearing on behalf of the department of environment,(government of india, shri b. dutta the learned istadditional h296solicitor general of india placed before us a memorandumexplaining the existing situation at jajmau area of kanpur.it reads thus:
"status regarding construction of treatment facilities for treatment of wastes from tanneries in jajmau area of kanpur. 1. about 70 small, medium and large tanneries are located in jajmau area of kanpur. on an average they generate 4.5 mld of waste water. 2. under the existing laws, tanneries like other industries are expected to provide treatment of their effluents to different standards depending on whether these are discharged into stream or land. it is the responsibility of the industry concerned to ensure that the quality of the wastewater conforms to the standards laid down 3. from time to time, tanneries of kanpur have re presented that due to lack of physical facilities, technical knowhow and funds, it has not been possible to install adequate treatment facilities. 4. jajmau is an environmentally degraded area of kanpur. the location of numerous tanneries in the area is a major cause of the degradation. civic facilities for water supply, sanitation, solid waste removal etc. are also highly inadequate. because the area abuts the ganga river, its pollution affects the river quality as
well. accordingly, under the ganga action plan an integrated sanitation project is being taken up for the jajmau area. some aspects of theplan relate to tannery wastes as follows: (i) the medium and large units will have to up pre treatment facilities to ensure that the standard of sewage discharged into the municipal sewer also conform to the standards laid down. scientific institutions such as central leather research institute are looking into the possibility of pretreatment including recovery of materials such as chromium. the setting up of pre- treatment facility in the respective units will be the responsibility of the individual units concerned. the ganga project directorate as part of the ganga action plan, will play a facilitative role to
297 demonstrate application of modern technologies for cost a effective pre-treatment which the small tanners can afford. (ii) since the wastes will be ultimately discharged into the river, the waste will have to further conform to the standards laid down for discharge into the stream. for this purpose, it will be necessary to treat the waste further and as part of the ganga action plan a treatment plant will be constructed for this purpose utilising some advanced processes. it is also proposed to combine the domestic waste with the industrial waste conveyed through the industrial sewer which will then be treated in a treatment plant (iii) it is estimated that cost of this proposed sewage treatment facility which will treat the waste from the domestic sources and the pretreated wastes from tanneries will be about rs.2.5 crores. it will have a capacity of 25 mld and the first demonstration module of about 5 mld is expected to be installed in early 1988-89. necessary work for designing of the plant has already been initiated and the infrastructure facilities such as availability of land, soil testing etc. have also been ensured. tender specifications are being provided and it is expected that the tenders will be floated sometime in october 87. it is expected that in the combined treatment facility of 25 mld, about 20 mld will be from the domestic sources and 5 mld will be from the tanneries after pretreatment in the region."
in the counter-affidavit filed on behalf of thehindustan chambers of commerce, of which 43 respondents are
members it is admitted that the tanneries discharge theirtrade effluents into the sewage nullah which leads to themunicipal sewage plant before they are thrown into the riverganga. it is not disputed by any of the respondents that thewater in the river ganga is being polluted grossly by theeffluent discharged by the tanneries. we are informed thatsix of the tanneries have already set up the primarytreatment plants for carrying out the pre-treatment of theeffluent before it is discharged into the municipal seweragewhich ultimately leads to the river ganga. about 14 of thetanneries are stated to be engaged in the construction ofthe primary treatment plants. it is pleaded on behalf of therest of the tanneries who are the members of the hindustanchambers of commerce and three other tanneries representedby shir mukul mudgal that if some time is given to them toestablish the pre-treatment plants they would h298do so. lt is, however, submitted by all of them that itwould not be possible for them to have the secondary systemfor treating wastewater as that would involve enormousexpenditure which the tanneries themselves would not be ableto meet. it is true that it may not be possible for thetanneries to establish immediately the secondary systemplant in view of the large expenditure involved but havingregard to the adverse effect the effluents are having on theriver water, the tanneries at jajmau, kanpur should, atleast set up of the primary treatment plants and that is theminimum which the tanneries should do in the circumstancesof the case. in the counter-affidavit filed on behalf of thehindustan chamber of commerce it is seen that the cost ofpretreatment plant for a 'a' class tannery is rs.3,68,000,the cost of the plant for a 'b' class tannery is rs.2,30,000and the cost of the plant for 'c' class tannery is rs.50,000this cost does not appear to be excessive. the financialcapacity of the tanneries should be considered as irrelevantwhile requiring them to establish primary treatment plants.just like an industry which cannot pay minimum wages to itsworkers cannot be allowed to exist a tannery which cannotset up a primary treatment plant cannot be permitted tocontinue to be in existence for the adverse effect on thepublic at large which is likely to ensue by the dischargingof the trade effluents from the tannery to the river gangawould be immense and it will outweigh any inconvenience thatmay be caused to the management and the labour employed byit on account of its closure. moreover, the tanneriesinvolved in these cases are not taken by surprise. forseveral years they are being asked to take necessary stepsto prevent the flow of untreated wastewater from theirfactories into the river. some of them have already compliedwith the demand. it should be remembered that the effluentdischarged from a tannery is ten times noxious when compared
with the domestic sewage water which flows into the riverfrom any urban areas on its banks. we feel that thetanneries at jajmau, kanpur cannot be allowed to continue tocarry on the industrial activity unless they take steps toestablish primary treatment plants. in cases of this naturethis court may issue appropriate directions if it finds thatthe public nuisance or other wrongful act affecting orlikely to affect the public is being committed and thestatutory authorities who are charged with the duty toprevent it are not taking adequate steps to rectify thegrievance. for every breach of a right there should be aremedy. it is unfortunate that a number of tanneries atjajmau even though they are aware of these proceedings havenot cared even to enter appearance in this court to expresstheir willingness to take appropriate steps to establish thepretreatment plants. so far as they are concerned an orderdirecting them to stop working their tanneries should bepassed.299we accordingly direct m/s. delight tannery (respondent 14),m/s. hindustan tannery (respondent 15), m/s. primer allarmintannery (respondent 33), m/s. mahaboob tannery (respondent37), m/s. popular tannery (respondent 38), m/s. standardtannery (respondent 39), m/s. vikash tarmery (respondent40), m/s. new golden tannery (respondent 41), m/s. d.d.tannery (respondent 42), m/s. himalaya tannery (respondent44), m/s. commercial industry (respondent 45), m/s. madinatannery (respondent 46), m/s. kanpur tannery (respondent48), m/s. new jab tannery (respondent 49), m/s. famoustannery (respondent 50), m/s. glaxy tannery (respondent 53),m/s. bengal tannery (respondent 56), m/s. chhangal tannery(respondent 59), m/s.nadari tannery (respondent 63), m/s.jajmau tanners (respondent 65), m/s. international tanningindustry (respondent 66), m/s. poorwanchal tanning industry(respondent 70), m/s. navratan tanning (respondent 71), m/s.haroou tannery (respondent 73), m/s. himalaya tanners(respondent 76), m/s. r.a. traders (respondent 79, m/s. alamtannery (respondent 83), m/s. g.t. tannery (respondent 84),and m/s. awadh tannery (respondent 86) to stop the runningof their tanneries and also not to let out trade effluentsfrom their tanneries either directly or indirectly into theriver ganga without subjecting the trade effluents to apretreatment process by setting up primary treatment plantsas approved by the state board (respondent 8) with effectfrom 1. l0.1987. m/s. indian tanning industry (respondent 30), the u.p.tannery (respondent 19), m/s. zaz tannery (respondent 28),m/s. super tannery india ltd. (respondent 21), m/s. shewantannery (respondent 20), m/s. pioneer tannery (respondent23), and m/s. m.k.j. corporation (respondent 89) who havealready put up the primary treatment plants may continue to
carry on production in their factories subject to thecondition that they should continue to keep the primarytreatment plants established by them in sound working order. shri s.k. dholakia, learned counsel for the othertanneries who are members of the hindustan chambers ofcommerce and the other tanneries who have entered appearancethrough shri mukul mudgal submits that they will establishprimary treatment plants within six months and he furthersubmits that in the event of their not completing theconstruction of the primary treatment plants as approved bythe state board (respondent 8) and bringing them intooperation within the period of six months the said tannerieswill stop carrying on their business. we record thestatement made by the learned counsel and grant them timetill 31.3.1988 to set up the primary treatment plants. if300any of these tanneries does not set up a primary treatmentplant within 31.3.1988 it is directed to stop its businesswith effect from 1.4.1988. we issue a direction to the central government, theuttar pradesh board, established under the provisions of thewater (prevention and control of pollution) act, 1974 andthe district magistrate, kanpur to enforce our orderfaithfully. copies of this order shall be cent to them forinformation the case is adjourned to 27th october, 1987 to considerthe case against the municipal bodies in the state of uttarpradesh having jurisdiction over the areas through which theriver ganga is passing. singh, j. i respectfully agree with every word what mylearned brother venkataramiah, j. has stated in the proposedorder and the directions issued by that order. however, iwish to add few words. the river ganga is one of the greatest rivers of theworld, although its entire course is only 1560 miles fromits source in himalaya to the sea. there are many riverslarger in shape and longer in size but no river in the worldhas been so great as the ganga. it is great because tomillions of people since centuries it is the most sacredriver. it is called "sursari" river of the gods,'patitpawani' purifier of all sins and 'ganga ma' motherganges. to millions of hindus, it is the most sacred, mostvenerated river on earth. according the hindu belief andmythology to bathe init, is to wash away guilt, to drinkthe water, having bathed in it, and to carry it away incontainers for those who may have not had the good fortuneto make the pilgrimage, to it, is meritorious. to becremated on its banks, or to die there, and to have one'sashes cast on its waters, is the wish of every hindu. many psaints and sages have persued their quest for knowledge andenlightenment on the banks of the river ganga. its water has
not only purified the body and soul of the millions but ithas given fertile land to the country in uttar pradesh andbihar. ganga has been used as means of water transport fortrade and commerce. the indian civilization of the northernindia thrived in the plains of ganga and most of theimportant towns and places of pilgrimage are situated on itsbanks. the river ganga has been part of hindu civilization.pt. jawahar lal nehru who did not consider himself a devouthindu gave expression to his feelings for the ganga that isto be found in his will and testament, a short extract fromwhich is as under:
"my desire to have a handful of my ashes thrown into the
301 ganga at allahabad has no religious significance, so far as i am concerned. i have no religious sentiment in the matter. i have been attached to the ganga and the jamuna rivers in allahabad ever since my childhood and, as i have grown older, this attachment has also grown. i have watched their varying moods as the seasons changed, and have often thought of the history and myth and tradition and song and story that have become attached to them through the long ages and become part of their flowing waters. the ganga, especially, as the river of india, beloved of her people, round which are intertwined her racial memories, her hopes and fears, her songs of triumph, her victories and her defeats. she has been a symbol of india's age-long culture and civilization, ever-changing, ever-flowing, and yet ever the same ganga. she reminds me of the snow-covered peaks and the deep valleys of the himalayas, which i have loved so much, and of the rich and vast plains below, where my life and work have been cast." the river ganga is the life line of millions of peopleof india, indian culture and civilization has grown aroundit. this great river drains of eight states of india,himachal pradesh, punjab, haryana, uttar pradesh, rajasthan,madhya pradesh, bihar and west bengal. the ganga has alwaysbeen an integral part of the nation's history, culture andenvironment. it has been the source of sustenance of themillions of people who have lived on its banks from timeimmemorial. millions of our people bathe in the ganga drink itswater under an abiding faith and belief to purify themselvesand to achieve moksha release from the cycle of birth anddeath. it is tragic that the ganga, which has since timeimmemorial, purified the people is being polluted by man innumerous ways, by dumping of garbage, throwing carcass ofdead animals and discharge of effluents. scientificinvestigations and survey reports have shown that the gangawhich serves one-third of the india's population is polluted
by the discharge of municipal sewage and the industrialeffluents in the river. the pollution of the river ganga isaffecting the life, health, and ecology of the indo-gangeticplain. the government as well as parliament both have takena number of steps to control the water pollution, butnothing substantial has been achieved. i need not refer tothose steps as my learned brother has referred to them indetail. no law or authority can succeed in removing thepollution unless the people cooperate. to my mind, it is thesacred duty of all those who reside or carry on businessaround302the river ganga to ensure the purity of ganga. tanneries at jajmau area near kanpur have been polluting the ganga in a big way. this court issued notices to them but in spite of notice many industrialists have notbothered either to respond to the notice
or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. we are therefore issuing the directions forthe closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent. we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life,health and ecology have greater importance to the people.n.p.v.303petitioner:m.c. mehta and anr.
vs.
respondent:union of india & ors.
date of judgment20/12/1986
bench:bhagwati, p.n. (cj)bench:bhagwati, p.n. (cj)misra rangnathoza, g.l. (j)dutt, m.m. (j)singh, k.n. (j)
citation: 1987 air 1086 1987 scr (1) 819 1987 scc (1) 395 jt 1987 (1) 1 1986 scale (2)1188 citator info : f 1989 sc1642 (24) rf 1990 sc 273 (28,43) e&d 1992 sc 248 (13,14,15,16,28,100)
act: constitution of india 1950--articles 12 & 21--privatecorporation-engaged in industry vital to public interestwith potential to affect life and health of people--whether'other authority'--extent of availability of article 21. article 32--jurisdiction and power of court--not onlyinjunctive in ambit--remedial in scope and provides relieffor infringement of fundamental right--power to award com-pensation. public interest litigation--maintainability of--whetherletters addressed even to an individual judgeentertainable--whether preferred form of addressapplicable--whether letters to be supported byaffidavits--hyper-technical approach to be avoided by thecourt--court must look at the substance and not theform--court's power to collect relevant material and toappoint commissions. law of torts--liability of an enterprise engaged in ahazardous and inherently dangerous industry for occurrenceof accident--strict and absolute--quantum of compensationpayable for harm caused--determination of--rule laid inrylands v. fletcher--whether applicable in india. jurisprudence--law--should keep pace with changingsocioeconomic norms---where a law of the past does not fitin to the present context, court should evolve new law. interpretation of constitution--creative and innovativeinterpretation in consonance with human rights jurisprudenceemphasised. interpretation of statutes--foreign case law--supremecourt of india not bound to follow.
headnote: the petitioners, in this writ petition under art. 32,sought a direction for closure of the various units ofshriram foods & fertilizers820industries on the ground that they were hazardous to thecommunity. during the pendency of the petition, there wasescapeof oleum gas from one of the units of shriram. thedelhi legal aid and advice board and the delhi bar associa-tion filed applications for award of compensation to thepersons who had suffered harm on account of escape of oleumgas. a bench of three hon'ble judges while permitting shriramto restart its power plant as also other plants subject tocertain conditions, referred the applications for compensa-tion to a larger bench of five judges because issues ofgreat constitutional importance were involved, namely, (1)
what is the scope and ambit of the jurisdiction of thesupreme court under art. 32 since the applications forcompensation are sought to be maintained under that article;(2) whether art. 21 is available against shriram which isowned by delhi cloth mills limited, a public company limitedby shares and which is engaged in an industry vital topublic interest and with potential to affect the life andhealth of the people; and (3) what is the measure of liabil-ity of an enterprise which is engaged in an hazardous orinherently dangerous industry, if by reason of an accidentoccurring in such industry, persons die or are injured. doesthe rule in rylands v. fletcher, (1866 law report 1 excheq-uer 265) apply or is there any other principle on which theliability can be determined.disposing of the applications, held: 1. the question whether a private corporation likeshriram would fall within the scope and ambit of art. 12 soas to be amenable to the discipline of art. 21 is left forproper and detailed consideration at a later stage if itbecomes necessary to do so. [844f-g] rajasthan electricity board v. mohan lal, [1967] 3 scr377; sukhdev v. bhagwat ram, [1975] 1 scc 421; ramannashetty v. international airport authority, [1979] 3 scr1014; ajay hasia v. khalid mujib, [1981] 2 scr 79; somprakash v. union of india, [1981] 1 s.c.c. 449; appendix ito industrial policy resolution, 1948; industries (develop-ment and regulation) act, 1951; delhi municipal act, 1957water (prevention and control of pollution) act, 1974; air(prevention and control of pollution) act, 1981; eurasianequipment and chemicals ltd. v. state of west bengal, [1975]2 scr 674; rasbehari panda v. st.ate, [1969] 3 scr 374; kas-turi lal reddy v. state of jammu & kashmir, [1980] 3 scr1338, referred to.821 2. the delhi legal aid and advice board is directed totake up the cases of all those who claim to have suffered onaccount of oleum gas and to file actions on their behalf inthe appropriate court for claiming compensation and thedelhi administration is directed to provide necessary fundsto the board for the purpose. [844g-h; 845a] 3.(i) where there is a violation of a fundamental orother legal right of a person or class of persons who byreason of poverty or disability or socially or economicallydisadvantaged position cannot approach a court of law forjustice, it would be open to any public-spirited individualor social action group to bring an action for vindication ofthe fundamental or other legal right of such individual orclass of individuals and this can be done not only by filingregular writ petition under art. 226 in the high court andunder art. 32 in this court, but also by addressing a letterto the court. [828b-c; e-f]
3.(ii) even if a letter is addressed to an individualjudge of the court, it should be entertained, provided ofcourse it is by or on behalf of a person in custody or onbehalf of a woman or a child or a class or deprived ordisadvantaged persons. [829b-c] 3.(iii) letters addressed to individual justices of thiscourt should not be rejected merely because they fail toconform to the preferred form of address nor should thecourt adopt a rigid stance that no letters will be enter-tained unless they are supported by an affidavit. if thecourt were to insist on an affidavit as a condition ofentertaining the letters the entire object and purpose ofepistolary jurisdiction would be frustrated because most ofthe poor and disadvantaged persons will then not be able tohave easy access to the court and even the social actiongroups will find it difficult to approach the court. [828h;829b] bandhua mukti morcha v. union of india & ors., [1984] 2scr 67; s.p. gupta v. union of india, [1981] (suppl) scc 87and union for democratic rights & ors. v. union of india,[1983] 1 scr 456, reliedupon. 4.(i) article 32 does not merely confer power on thiscourt to issue direction, order or writ for enforcement ofthe fundamental rights but it also lays a constitutionalobligation on this court to protect the fundamental rightsof the people and for that purpose this court has all inci-dental and ancillary powers including the power to forge newremedies and fashion new strategies designed to enforce thefundamental rights. it is in realisation of this constitu-tional obligation that this court822has, in the past, innovated new methods and strategies forthe purpose of securing enforcement of the fundamentalrights, particularly in the case of the poor and the disad-vantaged who are denied their basic human rights and to whomfreedom and liberty have no meaning. [827f-828a] 4.(ii) the power of the court is not only injunctive inambit, that is, preventing the infringement of fundamentalright but it is also remedial in scope and provides reliefagainst a breach of the fundamental right already committed.[830a-b] 4.(iii) the power of the court to grant such remedialrelief may include the power to award compensation in appro-priate cases. the infringement of the fundamental right mustbe gross and patent, that is incontrovertible and exfacieglaring and either such infringement should be on a largescale affecting the fundamental rights of a large number ofpersons or it should appear unjust or unduly harsh or op-pressing on account of their poverty or disability or so-cially or economically disadvantaged position to require
the person or persons affected by such infringement toinitiate and pursue action in the civil courts. [830d; e-f] 4. (iv) ordinarily a petition under art. 32 should notbe used as a substitute for enforcement of the right toclaim compensation for infringement of a fundamental rightthrough the ordinary process of civil court. it is only inexceptional cases that compensation may be awarded in apetition under art. 32. [830f-g] 4.(v) the applications for compensation in the instantwrit petition are for enforcement of the fundamental rightto life enshrined in art. 21 of the constitution and whiledealing with such applications the court cannot adopt ahyper-technical approach which would defeat the ends ofjustice. the court must look at the substance and not theform. therefore, the instant applications for compensationare maintainable under art. 32. [827a-b] bandhua mukti morcha v. union of india & ors., [1984] 2scr 67; s.p. gupta v. union of india, [1981] (suppl.) scr87; union for democratic rights & ors. v. union of india,[1983] 1 scr 456 and rudul shah v. state of bihar, air 1983sc 1086, relied upon. 5. the rule in rylands v. fletcher (supra) laid down aprinciple of liability that if a person who brings on to hisland and collects and keeps there anything likely to do harmand such thing escapes and does823damage to another, he is liable to compensate for the damagecaused. this rule applies only to non-natural user of theland and it does not apply to things naturally on thelandor where the escape is due to an act of god and an act of astranger or the default of the person injured or where thething which escapes is present by the consent of the personinjured or in certain cases where there is statutory author-ity. this rule evolved in the 19th century at a time whenall these developments of science and technology had nottaken place cannot afford any guidance in evolving anystandard of liability consistent with the constitutionalnorms and the needs of the present day economy and socialstructure. in a modern industrial society with highly de-veloped scientific knowledge and technology where hazardousor inherently dangerous industries are necessary to carry onas part of developmental programme, the court need not feelinhibited by this rule merely because the new law does notrecognise the rule of strict and absolute liability in caseof an enterprise engaged in hazardous and dangerous activi-ty. [842d-g]halsburry laws of england, vol. 45 para 1305, relied upon. 6.(i) law has to grow in order to satisfy the needs ofthe fast changing society and keep abreast with the economicdevelopments taking place in the country. law cannot affordto remain static. the court cannot allow judicial thinking
to be constricted by reference to the law as it prevails inengland or in any other foreign country. although this courtshould be prepared to receive light from whatever source itcomes, but it has to build up its own jurisprudence, evolvenew principles and lay down new norms which would adequatelydeal with the new problems which arise in a highly indus-trialised economy. if it is found that it is necessary toconstruct a new principle of law to deal with -an unusualsituation which has arisen and which is likely to arise infuture on account of hazardous or inherently dangerousindustries which are concommitant to an industrial economythe court should not hesitate to evolve such principles ofliability merely because it has not been so done in england.[843a-e] 6(ii) this court has throughout the last few yearsexpanded the horizon of art. 12 primarily to inject respectfor human-rights and social conscience in corporate struc-ture. the purpose of expansion has not been to destroy theraison d'etre of creating corporations but to advance thehuman rights jurisprudence. the apprehension that includingwithin the ambit of art. 12 and thus subjecting to thediscipline of art. 21 those private corporations whoseactivities have the potential of affecting the life andhealth of the people, would deal a death blow to824the policy of encouraging and permitting private enterpre-neurial activity is not well founded. it is through creativeinterpretation and bold innovation that the human-rightsjurisprudence has been developed in india to a remarkableextent and this forward march of the humanrights movementcannot be allowed to be halted by unfounded apprehensionsexpressed by status quoists. [841c-e] 7.(i) an enterprise which is engaged in a hazardous orinherently dangerous industry which poses a potential threatto the health and safety of the persons working in thefactory and residing in the surrounding areas owes an abso-lute non-delegable duty to the community to ensure that ifany harm results to anyone, the enterprise must be held tobe under an obligation to provide that the hazardous orinherently dangerous activity must be conducted with thehighest standards of safety and if any harm results onaccount of such activity the enterprise must be absolutelyliable to compensate for such harm irrespective of the factthat the enterprise had taken all reasonable care and thatthe harm occurred without any negligence on its part.[843e-g] 7.(ii) if the enterprise is permitted to carry on anhazardous or inherently dangerous activity for its profit,the law must presume that such permission is conditional onthe enterprise absorbing the cost of any accident arising onaccount of such activity as an appropriate item of its
overheads. the enterprise alone has the resource to discoverand guard against hazards or dangers and to provide warningagainst potential hazards. [844a-b] 7.(iii) the measure of compensation in such kind ofcases must be co-related to the magnitude and capacity ofthe enterprise because such compensation must have a deter-rent effect. the larger and more prosperous the enterprise,the greater must be the amount of compensation payable by itfor the harm caused on account of an accident in carrying onof the hazardous or inherently dangerous activity by theenterprise. [844e-f] 8. the historical context in which the american doctrineof state action evolved in the united states is irrelevantfor the purpose of indian courts, especially in view of art.15(2) of the indian constitution. but, it is the principlebehind the doctrine of state aid, control and regulation soimpregnating a private activity as to give it the colour ofstate action which can be applied to the limited extent towhich it can be indianised and harmoniously blended withindian constitutional825jurisprudence. indian courts are not bound by the americanexposition of constitutional law. the provisions of americanconstitution cannot always be applied to indian conditionsor to the provisions of indian constitution and whilst someof the principles adumberated by the american decisions mayprovide a useful guide, close adherence to those principleswhile applying them to the provisions of the indian consti-tution is not to be favoured, because the social conditionsin india are different. [840d-h] ramanna shetty v. international airport authority,[1979] 3 scr 1014; jackson v. metropolitan edison co., 42l.ed. (2d) 477; air india v. nargesh mirza, [1982] 1 scr 438and general electric co. maratha v. gilbert, 50 l.ed (2d)343, relied upon.
judgment: original jurisdiction: writ petition (civil) no. 12739of 1985.(under article 32 of the constitution of india.)petitioner-in-person. b. datta, additional solicitor general, a.b. diwan, f.s.nariman, b.r.l. lyengar, hardev singh, hemant sharma, c.v.s.rao, r.d. aggarwal, ms. s. relan, r.s. sodhi, s. sukumaran,ravinder narain, d.n. mishra, aditya narayan, ms. liragoswami, s. kachwaha, mohan, ravinder bana, k.c. dua, k.kumaramangalam, o.c. jain and k.r.r. pilai for the respond-ents.raju ramachandran for the intervener.
soli j. sorabji for citizens action committee.the judgment of the court was delivered by bhagwati, cj. this writ petition under article 32 of theconstitution has come before us on a reference made by abench of three judges. the reference was made because cer-tain questions of seminal importance and high constitutionalsignificance were raised in the course of arguments when thewrit petition was originally heard. the facts giving rise tothe writ petition and the subsequent events have been setout in some detail in the judgment given by the bench ofthree judges on 17th february 1986, and it is therefore notnecessary to reiterate the same. suffice it to state thatthe bench of three judges826permitted shriram foods and fertiliser industries (hereinaf-ter referred to as shriram) to restart its power plant asalso plants for manufacture of caustic chlorine includingits by-products and recovery plants like soap, glycerine andtechnical hard oil, subject to the conditions set out in thejudgment. that would have ordinarily put an end to the maincontroversy raised in the writ petition which was filed inorder to obtain a direction for closure of the various unitsof shriram on the ground that they were hazardous to thecommunity and the only point in dispute which would havesurvived would have been whether the units of shriram shouldbe directed to be removed from the place where they arepresently situate and relocated in another place where therewould not be much human habitation so that there would notbe any real danger to the health and safety of the people.but while the writ petition was pending there was escape ofoleum gas from one of the units of shriram on 4th and 6thdecember, 1985 and applications were filed by the delhilegal aid & advice board and the delhi bar association foraward of compensation to the persons who had suffered harmon account of escape of oleum gas. these applications forcompensation raised a number of issues of great constitu-tional importance and the bench of three judges thereforeformulated the issues and asked the petitioner and thosesupporting him as also shriram to file their respectivewritten submissions so that the court could take up thehearing of these applications for compensation. when theseapplications for compensation came up for hearing it wasfelt that since the issues raised involved substantialquestions of law relating to the interpretation of articles21 and 32 of the constitution, the case should be referredto a larger bench of five judges and this is how thecasehas now come before us. mr. diwan, learned counsel appearing on behalf of shri-ram raised a preliminary objection that the court should notproceed to decide these constitutional issuessince therewas no claim for compensation originally made in the writ
petition and these issues could not be said to arise on thewrit petition. mr. diwan conceded that the escape of oleumgas took place subsequent to the filing of the writ petitionbut his argument was that the petitioner could have appliedfor amendment of the writ petition so as to include a claimfor compensation for the victims of oleum gas but no suchapplication for amendment was made and hence on the writpetition as it stood, these constitutional issues did notarise for consideration. we do not think this preliminaryobjection raised by mr. diwan is sustainable. it is undoubt-edly true that the petitioner could have applied for amend-ment of the writ petition so as to include a claim forcompensation but merely because he did827not do so, the applications for compensation made by thedelhi legal aid & advice board and the delhi bar associationcannot be thrown out. these applications forcompensationare for enforcement of the fundamental right to life en-shrined in article 21 of the constitution and while dealingwith such applications, we cannot adopt a hypertechnicalapproach which would defeat the ends of justice. this courthas on numerous occasions pointed out that where there is aviolation of a fundamental or other legal right of a personor class of persons who by reason of poverty or disabilityor socially or economically disadvantaged position cannotapproach a court of law for justice, it would be open to anypublic spirited individual or social action group to bringan action for vindication of the fundamental or other legalright of such individual or class of individuals and thiscan be done not only by filing a regular writ petition butalso by addressing a letter to the court. if this court isprepared to accept a letter complaining of violation of thefundamental right of an individual or a class of individualswho cannot approach the court for justice, there is noreason why these applications for compensation which havebeen made for enforcement of the fundamental right of thepersons affected by the oleum gas leak under article 21should not be entertained. the court while dealing with anapplication for enforcement of a fundamental right must lookat the substance and not the form. we cannot thereforesustain the preliminary objection raised by mr. diwan. the first question which requires to be considered is asto what is the scope and ambit of the jurisdiction of thiscourt under article 32 since the applications for compensa-tion made by the delhi legal aid and advice board and thedelhi bar association are applications sought to be main-tained under that article. we have already had occasion toconsider the ambit and coverage of article 32 in the bandhuamukti morcha v. union of india & ors., [1984] 2 scr 67 andwe wholly endorse what has been stated by one of us namely,bhagwati, j. as he then was in his judgment in that case in
regard to the true scope and ambit of that article. it maynow be taken as well settled that article 32 does not merelyconfer power on this court to issue a direction, order orwrit for enforcement of the fundamental rights but italsolays a constitutional obligation on this court to protectthe fundamental rights of the people and for that purposethis court has all incidental and ancillary powers includingthe power to forge new remedies and fashion new strategiesdesigned to' enforce the fundamental rights. it is in reali-sation of this constitutional obligation that this court hasin the past innovated new methods and strategies for thepurpose of securing enforcement of the fundamental rights,828particularly in the case of the poor and the disadvantagedwho are denied their basic human rights and to whom freedomand liberty have no meaning. thus it was in s,p. gupta v. union of india, [1981]supp. scc 87 that this court held that "where a legal wrongor a legal injury is caused to a person or to a determinateclass of persons by reason of violation of any constitution-al or legal right or any burden is imposed in contraventionof any constitutional or legal provision or without authori-ty of law or any such legal wrong or legal injury or illegalburden is threatened, and any such person or determinateclass of persons is by reason of poverty or disability orsocially or economically disadvantaged position unable toapproach the court for relief, any member of the public orsocial action group can maintain an application for anappropriate direction, order or writ in the high court underarticle 226 and in case of breach of any fundamental rightof such person or class of persons, in this court underarticle 32 seeking judicial redress for the legal wrong orinjury caused to such person or determinate class of per-sons." this court also held in s.p. gupta's case (supra) asalso in the people's union for democratic rights and ors. v.union of india, [1983] 1 scr 456 and in babdhua mukti mor-cha's case (supra) that procedure being merely a hand-madenof justice it should not stand in the way of access tojustice to the weaker sections of indian humanity and there-fore where the poor and the disadvantaged are concerned whoare barely eking out a miserable existence with their sweatand toil and who are victims of an exploited society withoutany access to justice, this court will not insist on aregular writ petition and even a letter addressed by apublic spirited individual or a social action group actingprobono publico would suffice to ignite the jurisdiction ofthis court. we wholly endorse this statement of the law inregard to the broadening of locus standi and what-has cometo be known as epistolary jurisdiction. we may point out at this stage that in bandhua muktimorcha's case (supra) some of us apprehending that letters
addressed to individual justices may involve the court infrivolous cases and that possibly the view could be takenthat such letters do not invoke the jurisdiction of thecourt as a whole, observed that such letters should not beaddressed to individual justices of the court but to thecourt or to the chief justice and his companion judges. wedo not think that it would be right to reject a letteraddressed to an individual justice of the court merely onthe ground that it is not addressed to the court or to thechief justice and his companion judges. we must not forgetthat829letters would ordinarily be addressed by poor and disadvan-taged persons or by social action groups who may not knowthe proper form of address. they may know only a particularjudge who comes from their state and they may thereforeaddress the letters to him. if the court were to insist thatthe letters must be addressed to the court, or to the chiefjustice and his companion judges, it would exclude from thejudicial ken a large number of letters and in the resultdeny access to justice to the deprived and vulnerable sec-tions of the community. we are therefore of the view thateven if a letter is addressed to an individual judge of thecourt, it should be entertained, provided of course it is byor on behalf of a person in custody or on behalf of a womanor a child or a class of deprived or disadvantaged persons.we may point out that now there is no difficulty in enter-taining letters addressed to individual justice of thecourt, because this court has a public interest litigationcell to which all letters addressed to the court or to theindividual justices are forwarded and the staff attached tothis cell examines the letters and it is only after scrutinyby the staff members attached to this cell that the lettersare placed before the chief justice and under his direction,they are listed before the court. we must thereforeholdthat letters addressed to individual justice of the courtshould not be rejected merely because they fail to conformto the preferred form of address. nor should the court adopta rigid stance that no letters will be entertained unlessthey are supported by an affidavit. if the court were toinsist on an affidavit as a condition of entertaining theletters the entire object and purpose of epistolary juris-diction would be frustrated because most of the poor anddisadvantaged persons will then not be able to have easyaccess to the court and even the social action groups willfind it difficult to approach the court. we may point outthat the court has so far been entertaining letters withoutan affidavit and it is only in a few rare cases that it hasbeen found that the allegations made in the letters werefalse. but that might happen also in cases where the juris-diction of the court is invoked in a regular way:
so far as the power of the court under article 32 togather relevant material bearing on the issues arising inthis kind of litigation, which we may for the sake of con-venience call.social action litigation, and to appointcommissions for this purpose is concerned, we endorse. whatone of us namely, bhagwati, j., as he then was, has said inhis judgment in bandhua mukti morcha's case (supra). we neednot repeat what has been stated in that judgment.' it hasour full approval.we are also of the view that this court under article 32(1)is free830to devise any procedure appropriate for the particularpurpose of the proceeding, namely, enforcement of a funda-mental right and under article 32(2) the court has theimplicit power to issue whatever direction, order or writ isnecessary in a given case, including all incidental orancillary power necessary to secure enforcement of thefundamental right. the power of the court is not only in-junctive in ambit, that is, preventing the infringement of afundamental right, but it is also remedial in scope andprovides relief against a breach of the fundamental rightalready committed vide bandhua mukti morcha's case (supra).if the court were powerless to issue any direction, order orwrit in cases where a fundamental right has already beenviolated, article 32 would be robbed of all its efficacy,because then the situation would be that if a fundamentalright is threatened to be violated, the court can injunctsuch violation but if the violator is quick enough to takeaction infringing the fundamental right, he would escapefrom the net of article 32. that would, to a large extent,emasculate the fundamental right guaranteed under article 32and render it impotent and futile. we must, therefore, holdthat article 32 is not powerless to assist a person when hefinds that his fundamental right has been violated. he canin that event seek remedial assistance under article 32. thepower of the court to grant such remedial relief may includethe power to award compensation in appropriate cases. we aredeliberately using the words "in appropriate cases" becausewe must make it clear that it is not in every case wherethere is a breach of a fundamental right committed by theviolator that compensation would be awarded by the court ina petition under article 32. the infringement of the funda-mental right must be gross and patent, that is, incontro-vertible and ex facie glaring and either suchinfringementshould be on a large scale affecting the fundamental rightsof a large number of persons, or it should appear unjust orunduly harsh or oppressive on account of theft poverty ordisability or socially or economically, disadvantaged posi-tion to require the person or persons affected by suchinfringement to initiate and pursue action in the civil
courts. ordinarily, of course, a petition under article 32should not be used as a substitute for enforcement of theright to claim compensation for infringement of a fundamen-tal right through the ordinary process of civil court. it isonly in exceptional cases of the nature indicated by usabove, that compensation may be awarded in a petition underarticle 32. this is the principle on which this court award-ed compensation in rudul shah v. state of bihar, (air1983sc 1086). so also, this court awarded compensation to bhimsingh, whose fundamental right to personal liberty wasgrossly violated by the state of jammu and kashmir. if wemake a fact analysis of the cases where compensation hasbeen831awarded by this court, we will find that in all the cases,the fact of infringement was patent and incontrovertible,the violation was gross and its magnitude was such as toshock the conscience of the court and it would have beengravely unjust to the person whose fundamental right wasviolated, to require him to go to the civil court for claim-ing compensation. the next question which arises for consideration onthese applications for compensation is whether article 21 isavailable against shriram which is owned by delhi clothmills limited, a public company limited by shares and whichis engaged in an industry vital to public interest and withpotential to affect the life and health of the people. theissue of availability of article 21 against a private corpo-ration engaged in an activity which has potential to affectthe life and health of the people was vehemently argued bycounsel for the applicants and shriram. it was emphaticallycontended by counsel for the applicants, with the analogicalaid of the american doctrine of state action and the func-tional and control test enunciated by this court in itsearlier decisions, that article 21 was available, as shriramwas carrying on an industry which, according to the govern-ment's own declared industrial policies, was ultimatelyintended to be carried out by itself, but instead of thegovernment immediately embarking on that industry, shriramwas permitted to carry it on under the active control andregulation of the government. since the government intendedto ultimately carry on this industry and the mode of carry-ing on the industry could vitally affect public interest,the control of the government was linked to regulating thataspect of the functioning of the industry which could vital-ly affect public interest. special emphasis was laid bycounsel for the applicants on the regulatory mechanismprovided under the industries development and regulationact, 1951 where industries are included in the schedule ifthey vitally affect public interest. regulatory measures arealso to be found in the bombay municipal corporation act,
the air and water pollution control acts and now the recentenvironment act, 1986. counsel for the applicants alsopointed to us the sizable aid in loans, land and otherfacilities granted by the government to shriram in carryingon the industry. taking aid of the american state actiondoctrine, it was also argued before us on behalf of theapplicants that private activity, if supported, controlledor regulated by the state may get so entwined with govern-mental activity as to be termed state action and it wouldthen be subject to the same constitutional restraints on theexercise of power as the state.832 on the other hand, counsel for shriram cautioned againstexpanding article 12 so as to bring within its ambit privatecorporations. he contended that control or regulation of aprivate corporations functions by the state under generalstatutory law such as the industries development and regula-tion act, 1951 is only in exercise of police power of regu-lation by the state. such regulation does not convert theactivity of the private corporation into that of the state.the activity remains that of the private corporation, thestate in its police power only regulates the manner in whichit is to be carried on. it was emphasised that control whichdeems a corporation, an agency of the state, must be of thetype where the state controls the management policies of thecorporation, whether by sizable representation on the boardof management or by necessity of prior approval of thegovernment before any new policy of management is adopted,or by any other mechanism. counsel for shriram also pointedout the inappositeness of the state action doctrine to theindian situation. he said that in india the control andfunction test have been evolved in order to determine wheth-er a particular authority is an instrumentality or agency ofthe state and hence 'other authority' within the meaning ofarticle 12. once an authority is deemed to he 'other author-ity' under article 12, it is state for the purpose of allits activities and functions and the american functionaldichotomy by which some functions of an authority can betermed state action and others private action, cannot oper-ate here. the learned counsel also pointed out that thoserights which are specifically intended by the constitutionmakers to be available against private parties are sopro-vided in the constitution specifically such as articles 17,23 and 24. therefore, to so expand article 12 as to bringwithin its ambit even private corporations would be againstthe scheme of the chapter on fundamental rights. in order to deal with these rival contentions we thinkit is necessary that we should trace that part of the devel-opment of article 12 where this court embarked on the pathof evolving criteria by which a corporation could be termed'other authority' under article 12.
in rajasthan electricity board v. mohan lal, [1967] 3scr 377 this court was called upon to consider whether therajasthan electricity board was an 'authority' within themeaning of the expression 'other authorities' in article 12.bhargava, j. who delivered the judgment of the majoritypointed out that the expression 'other authorities' inarticle 12 would include all constitutional and statutoryauthorities on whom powers are conferred by law. the learnedjudge also said that if any body of persons has authority toissue directions, the dis-833obedience of which would be publishable as a criminal of-fence, that would be an indication that the concerned au-thority is 'state'. shah, j., who delivered a separatejudgment agreeing with the conclusion reached by the majori-ty, preferred to give a slightly different meaning to theexpression 'other authorities'. he said that authorities,constitutional or statutory, would fail within the expres-sion "other authorities" only if they are invested with thesovereign power of the state, namely, the power to makerules and regulations which have the force of law. the ratioof this decision may thus be stated to be that a constitu-tional or statutory authority would be within the expression"other authorities" if it has been invested with statutorypower to issue binding directions to third parties, thedisobedience of which would entail penal consequences or ithas the sovereign power to make rules and regulations havingthe force of law. this test was followed by ray, c j, in sukhdev v. bhagatram, [1975] 1 scc 421. mathew, j. however, in the same casepropounded a broader test. the learned judge emphasised thatthe concept of 'state' had undergone drastic changes inrecent years and today 'state' could not be conceived ofsimply as a coercive machinery wielding the thunderbolt ofauthority; rather it has to be viewed mainly as a servicecorporation. he expanded on this dictum by stating that theemerging principle appears to be that a public corporationbeing an instrumentality or agency of the 'state' is subjectto the same constitutional limitations as the 'state' it-self. the preconditions of this are two, namely, that thecorporation is the creation of the 'state' and that there isexistence of power in the corporation to invade the consti-tutional rights of the individual. this court in ram annashetty v. international airport authority, [1979] 3 scr 1014accepted and adopted the rational of instrumentality oragencyof state put forward by mathew, j., and spelt outcertain criteria with whose aid such an inference could bemade. however, before we come to these criteria we think itnecessary to refer to the concern operating behind theexposition of the broader test by justice mathew which is ofequal relevance to us today, especially considering the fact
that the definition under article 12 is. an inclusive andnot an exhaustive definition. that concern is the need tocurb arbitrary and unregulated power wherever and howsoeverreposed. in ramanna d. shetty v. international airport authority(supra) this court deliberating on the criteria on the basisof which to determine whether a corporation is acting asinstrumentality or agency of government said that it was notpossible to formulate an all inclu-834sive or exhaustive test which would adequately answer thisquestion. there is no out and dried formulawhich wouldprovide the correct division of corporations into thosewhich are instrumentalities or agencies of government andthose which are not. the court said whilst formulating thecriteria that analogical aid can be taken from the conceptof state action as developed in the united states whereinthe u.s. courts have suggested that a private agency ifsupported by extra-ordinary assistance given by the statemay be subject to the same constitutional limitations as thestate. it was pointed out that the state's general common-law and statutory structure under which its people carry ontheir private affairs, own property and enter into con-tracts, each enjoying equality in terms of legal capacity,is not such assistance as would transform private conductinto state action. "but if extensive and unusual financialassistance is given and the purpose of such assistancecoincides with the purpose for which the corporation isexpected to use the assistance and such purpose is of publiccharacter, it may be a relevant circumstance supporting aninference that the corporation is an instrumentality oragency of the government". on the question of state control, the court in r.d.shetty's case (supra) clarified that some control by thestate would not be determinative of the question, since thestate has considerable measure of control under its policepower over all types of business organisations. but a find-ing of state financial support plus an unusual degree ofcontrol over the management and policies of the corporationmight lead to the characterisation of the operation as stateaction. whilst deliberating on the functional criteria namely,that the corporation is carrying out a governmental func-tion. the court emphasised that classification of a functionas governmental should not be done on earlier day percep-tions but on what the state today views as an indispensablepart of its activities, for the state may deem it as essen-tial to its economy that it owns and operate a railroad, amill or an irrigation system as it does to own and operatebridges street lights or a sewage disposal plant. the courtalso reiterated in r.d. shetty's case (supra) what was
pointed out by mathew, j. in sukhdev v. bhagatram that"institutions engaged in matters of high public interest orpublic functions are by virtue of the nature of the func-tions performed government agencies. activities which aretoo fundamental to the society are by definition too impor-tant not to be considered government functions."the above discussion was rounded off by the court in r.d.835shetty's case (supra) by enumerating the following fivefactors namely, (1) financial assistance given by the stateand magnitude of such assistance (2) any other form ofassistance whether of the usual kind or extraordinary (3)control of management and policies of the corporation by thestate-nature and extent of control (4) state conferred orstate protected monopoly status and (5) functions carriedout by the corporation, whether public functions closelyrelated to governmental functions, as relevant criteria fordetermining whether a corporation is an instrumentality oragencyof the state or not, though the court took care topoint out that the enumeration was not exhaustive and thatit was the aggregate or cumulative effect of all the rele-vant factors that must be taken as controlling. the criteria evolved by this court in ramanna shetty'scase (supra) were applied by this court in ajay hasia v.khalid mujib, [1981] 2 scr 79 where it was further empha-sised that:"where constitutional fundamentals vital to the maintenanceof human rights are at stake, functional realism and notfacial cosmetics must be the diagnostic tool for constitu-tional law must seek the substance and not the form. now itis obvious that the government may through the instrumental-ity or agency of natural persons or it may employ the in-strumentality or agency of judicial persons to carry out itsfunctions. it is really the government which acts throughthe instrumentality or agency of the corporation and thejuristic veil of corporate personality worn for the purposeof convenience of management and administration cannot beallowed to obliterate the true nature of the reality behindwhich is the government ..... (for if the governmentacting through its officers is subject to certain constitu-tional limitations it must follow a fortiorari that thegovernment acting through the instrumentality or agency of acorporation should be equality subject to the same limita-tions".on the canon of construction to be adopted for interpretingconstitutional guarantees the court pointed out: ".... constitutional guarantees ... should not be allowedto be emasculated in their application by a narrow and con-structed judicial interpretation. the courts should beanxious to enlarge the scope and width of the fundamental836
rights by bringing within their sweep every authority whichis an instrumentality or agency of the government or throughthe corporate personality of which the government is acting,so as to subject the government in all its myriad activi-ties, whether through natural persons or through corporateentities to the basic obligation of the fundamental rights."in this case the court also set at rest the controversy asto whether the manner in which a corporation is brought intoexistence had any relevance to the question whether it is astate instrumentality or agency. the court said that it isimmaterial for the purpose of determining whether a corpora-tion is an instrumentality or agency of the state or notwhether it is created by a statute or under a statute: "theinquiry has to be not as to how the juristic person is bornbut why it has been brought into existence. the corporationmay be a statutory corporation created by statute or it maybe a government company or a company formed under the compa-nies act, 1956 or it may be a society registered under thesocieties registration act, 1860 or any other similar stat-ute". it would come within the ambit of article 12, if it isfound to an instrumentality or agency of the state on aproper assessment of the relevant factors. it will thus be seen that this court has not permittedthe corporate device to be utilised as a barrier ousting theconstitutional control of the fundamental rights. rather thecourt has held: "it is dangerous to exonerate corporations from theneed to have constitutional conscience, and so that inter-pretation, language permitting, which makesgovernmentalagencies whatever their main amenable to constitutionallimitations must be adopted by the court as against thealternative of permitting them to flourish as an imperium inimperio". som prakash v. union of india, [1981] 1 scc 449. taking the above exposition as our guideline, we mustnow proceed to examine whether a private corporation such asshriram comeswithin the ambit of article 12 so as to beamenable to the discipline of article 21. in order to assess the functional role allocated toprivate corporation engaged in the manufacture of chemicalsand fertilisers we need837to examine the industrial policy of the government and seethe public interest importance given by the state to theactivity carried on by such private corporation. under the industrial policy resolution 1956 industrieswere classified into three categories having regard to thepart which the state would play in each of them. the firstcategory was to be the exclusive responsibility of thestate. the second category comprised those industries whichwould be progressively state owned and in which the statewould therefore generally take the initiative in establish-
ing new undertakings but in which private enterprise wouldalso be expected to supplement the effort of the state bypromoting and development undertakings either on its own orwith state participation. the third category would includeall the remaining industries and their future developmentwould generally be left to the initiative and enterprise ofthe private sector. schedule b to the resolution enumeratedthe industries. appendix i to the industrial policy resolution, 1948dealing with the problem of state participation in industryand the conditions in which private enterprise should beallowed to operate stated that there can be no doubt thatthe state must play a progressively active role in thedevelopment of industries. however under the present condi-tions, the mechanism and resources of the state may notpermit it to function forthwith in industry as widely as maybe desirable. the policy declared that for some time tocome, the state could contribute more quickly to the in-crease of national wealth by expanding its present activi-ties wherever it is already operating and by concentratingon new units of production in other fields. on these considerations the government decided that themanufacture of arms and ammunition, the production andcontrol of atomic energy and the ownership and management ofrailway transport would be the exclusive monopoly of thecentral government. the establishment of new undertakings incoal, iron and steel, aircraft manufacture, ship building,manufacture of telephone telegraph and wireless apparatusand mineral oil were to be the exclusive responsibility ofthe state except where in national interest the state itselffinds it necessary to secure the co-operation of privateenterprise subject to control of the central government. the policy resolution also made mention of certainbasic industries of importance the planning and regulationof which by tile cent-838ral government was found necessary in national interest.among the eighteen industries so mentioned as requiring suchcentral control. heavy chemicals and fertilisers stoodincluded. in order to carry out the objective of the policy reso-lution the industries (development and regulation) act of1951 was enacted which, according to its objects and rea-sons, brought under central control the development andregulation of a number of important industries the activi-ties of which affect the country as a whole and the develop-ment of which must be governed by economic factors of allindia import. section 2 of the act declares that it isexpedient in the public interest that the union should takeunder its control the industries specified in the firstschedule. chemicals and fertilisers find a place in the
first schedule as items 19 and 18 respectively. if an analysis of the declarations in the policy resolu-tions and the act is undertaken, we find that the activityof producing chemicals and fertilisers is deemed by thestate to be an industry of vital public interest, whosepublic import necessitates that the activity should beultimately carried out by the state itself, in the interimperiod with state support and under state control, privatecorporations may also be permitted to supplement the stateeffort. the argument of the applicants on the basis of thispremise was that in view of this declared industrial policyof the state, even private corporations manufacturing chemi-cals and fertilisers can be said to be engaged in activitieswhich are so fundamental to the society as to be necessarilyconsidered government functions. sukhdev v. bhagat ram,ramanna shetty and ajay hasia (supra). it was pointed out on behalf of the applicants that asshriram is registered under the industries development andregulation act 1951, its activities are subject to extensiveand detailed control and supervision by the government.under the act a licence is necessary for the establishmentof a new industrial undertaking or expansion of capacity ormanufacture of a new article by an existing industrialundertaking carrying on any of the scheduled industriesincluded in the first schedule of the act. by refusinglicence for a particular unit, the government can preventover concentration in a particular region or over-investmentin a particular industry. moreover, by its power to specifythe capacity in the licence it can also prevent over-devel-opment of a particular industry if it has already reachedtarget capacity. section 18 g of the act empowers the gov-ernment to control the supply, distribution, price etc. ofthe articles manufactured by a scheduled839industry and under section 18a government can assume manage-ment and control of an industrial undertaking engaged in ascheduled industry if after investigation it is found thatthe affairs of the undertaking are being managed in a mannerdetrimental to public interest and under section 18aa incertain emergent cases, take-over is allowed even withoutinvestigation. since shriram is carrying on a scheduledindustry, it is subject to this stringent system of regis-tration and licensing. it is also amenable. to variousdirections that may be issued by the government from time totime and it is subject to the exercise of the powers of thegovernment under sections 18a, and 18g. shriram is required to obtain a licence under the facto-ries act and is subject to the directions and orders of theauthorities under the act. it is also required to obtain alicence for its manufacturing activities from the municipalauthorities under the delhi municipal act, 1957. it is
subject to extensive environment regulation under the water(prevention and control) of pollution act, 1974 and as thefactory is situated in an air pollution control area, it isalso subject to the regulation of the air (prevention andcontrol of pollution) act, 1981. it is true that control isnot exercised by the government in relation to the internalmanagement policies of the company. however, the control isexercised on all such activities of shriram which can jeop-ardize public interest. this functional control is of spe-cial significance as it is the potentiality of the fertiliz-er industry to adversely affect the health and safety of thecommunity and its being impregnated with public interestwhich perhaps dictated the policy decision of the governmentto ultimately operate this industry exclusively and invitedfunctional control. along with this extensive functionalcontrol, we find that shriram also receives sizable assist-ance in the shape of loans and overdrafts running intoseveral crores of rupees from the government through variousagencies. moreover, shriram is engaged in the manufacture ofcaustic soda, chlorine etc. its various units are set up ina single complex surrounded by thickly populated colonies.chlorine gas is admittedly dangerous to life and' health. ifthe gas escapes either from the storage tank or from thefilled cylinders or from any other point in the course ofproduction, the health and wellbeing of the people living inthe vicinity can be seriously affected. thus shriram isengaged in an activity which has the potential to invade theright to life of large sections of people. the question iswhether these factors are cumulatively sufficient to bringshriram within the ambit of article 12. prima facie it isarguable that when the states' power as economic agent,economic entrepreneur and allocator of economic benefits issubject to the limitations of fundamental rights. (vide840eurasian equipment and chemicals ltd. v. state of westbengal, (1975) 2 scr 674, rashbehari panda v. state, [1983]3 scr 374, ramanna shetty v. international airport authori-ty, (supra) and kasturilal reddy v. state of jammu & kash-mir, [1980] 3 scr 1338) why should a private corporationunder the functional control of the state engaged in anactivity which is hazardous to the health and safety of thecommunity and is imbued with public interest and which thestate ultimately proposes to exclusively run under itsindustrial policy, not be subject to the same limitations.but we do not propose to decide this question and make anydefinite pronouncement upon it for reasons which we shallpoint out later in the course of this judgment. we were during the course of arguments, addressed atgreat length by counsel on both sides on the american doc-trine of state action. the learned counsel elaboratelytraced the evolution of this doctrine in its parent country.
we are aware that in america since the fourteenth amendmentis available only against the state, the courts, in order tothwart racial discrimination by private parties, devised thetheory of state action under which it was held that whereverprivate activity was aided, facilitated or supported by theslate in a significant measure, such activity took thecolour of state action and was subject to the constitutionallimitations of the fourteenth amendment. this historicalcontext in which the doctrine of state action evolved in theunited states is irrelevant for our purpose especially sincewe have article 15(2) in our constitution. but it is theprinciple behind the doctrine of state aid, control andregulation so impregnating a private activity as to give itthe colour of state action that is of interest to us andthat also to the limited extent to which it can be indian-ized and harmoniously blended with our constitutional juris-prudence. that we in no way consider ourselves bound byamerican exposition of constitutional law is well demos-trated by the fact that in ramanna shetty, (supra) thiscourt preferred the minority opinion of douglas, j. injackson v. metropolitan edison company, 42 l.ed. (2d) 477 asagainst the majority opinion of rehnquist, j. and again inair india v. nargesh mirza, [1982] 1 scr 438 this courtwhilst preferring the minority view in general electriccompany martha v. gilbert, 50 l.ed. (2d) 343 said that theprovisions of the american constitution cannot always beapplied to indian conditions or to the provisions of ourconstitution and whilst some of the principles adumbrated bythe american decisions may provide a useful guide, closeadherence to those principles while applying them to theprovisions of our constitution is not to be favoured, be-cause the social conditions in our country are different.the learned counsel for shriram stressed the inapposite-841ness of the doctrine of state action in the indian contextbecause, according to him, once an authority is broughtwithin the purview of article 12, it is state for all in-tents and purposes and the functional dichotomy in americawhere certain activities of the same authority may be cha-raterised as state action and others as private actioncannot be applied here in india. but so far as this argumentis concerned, we must demur to it and point out that it isnot correct to say that in india once a corporation isdeemed to be 'authority', it would be subject to the consti-tutional limitation of fundamental rights in the performanceof all its functions and that the appellation of 'authority'would stick to such corporation, irrespective of the func-tional context. before we part with this topic, we may point out thatthis court has throughout the last few years expanded thehorizon of article 12 primarily to inject respect for
human-rights and social conscience in our corporate struc-ture. the purpose of expansion has not been to destroy theraison d'eter of creating corporations but to advance thehuman rights jurisprudence. prima facie we are not inclinedto accept the apprehensions of learned counsel for shriramas well-founded when he says that our including within theambit of article 12 and thus subjecting to the discipline ofarticle 21, those private corporations whose activities havethe potential of affecting the life and health of the peo-ple, would deal a death blow to the policy of encouragingand permitting private entrepreneurial activity. whenever anew advance is made in the field of human rights, apprehen-sion is always expressed by the status quosits that it willcreate enormous difficulties in the way of smooth function-ing of the system and affect its stability. similar appre-hension was voiced when this court in ramanna shetty's case(supra) brought public sector corporations within the scopeand ambit of article 12 and subjected them to the disciplineof fundamental rights. such apprehension expressed by thosewho may be affected by any new and innovative expansion ofhuman rights need not deter the court from widening thescope of human rights and expanding their reach ambit, ifotherwise it is possible to do so without doing violence tothe language of the constitutional provision. it is throughcreative interpretation and bold innovation that the humanrights jurisprudence has been developed in our country to aremarkable extent and this forward march of the human rightsmovement cannot be allowed to be halted by unfounded appre-hensions expressed by status quoists. but we do not proposeto decide finally at the present stage whether a privatecorporation like shriram would fall within the scope andambit of article 12, because we have not had sufficient timeto consider and reflect on this question in depth- thehearing of this case before us842concluded only on 15th december 1986 and we are called uponto deliver our judgment within a period of four days, on19th december 1986. we are therefore of the view that thisis not a question on which we must make any definite pro-nouncement at this stage. but we would leave it for a properand detailed consideration at a later stage if it becomesnecessary to do so. we must also deal with one other question which wasseriously debated before us and that question is as to whatis the measure of liability of an enterprise which is en-gaged in an hazardous or inherently dangerous industry, ifby reason of an accident occurring in such industry, personsdie or are injured. does the rule in rylands v. fletcherapply or is there any other principle on which the liabilitycan be determined? the rule in rylands v. fletcher wasevolved in the year 1866 and it provides that a person who
for his own purposes being on to his land and collects andkeeps there anything likely to do mischief if it escapesmust keep it at his peril and, if he falls to do so, isprima facie liable for the damage which is the naturalconsequence of its escape. the liability under this rule isstrict and it is no defence that the thing escaped withoutthat person's wilful act, default or neglect or even that hehad no knowledge of its existence. this rule laid down aprinciple of liability that if a person who brings on to hisland and collects and keeps there anything likely to do harmand such thing escapes and does damage to another, he isliable to compensate for the damage caused. of course, thisrule applies only to non-natural user of the land and itdoes not apply to things naturally on the land or where theescapeis due to an act of god and an act of a stranger orthe default of the person injured or where the thing whichescapes is present by the consent of the person injured orin certain cases where there is statutory authority. videhalsbury laws of england, vol. 45 para 1305. considerablecase law has developed in england as to what is natural andwhat is non-natural use of land and what are precisely thecircumstances in which this rule may be displaced. but it isnot necessary for us to consider these decisions laying downthe parameters of this rule because in a modern industrialsociety with highly developed scientific knowledge andtechnology where hazardous or inherently dangerous indus-tries are necessary to carry out part of the developmentalprogramme. this rule evolved in the 19th century at a timewhen all these developments of science and technology hadnot taken place cannot afford any guidance in evolving anystandard of liability consistent with the constitutionalnorms and the needs of the present day economy and socialstructure. we need not feel inhibited by this rule which wasevolved in this context of a totally different kind of843economy. law has to grow in order to satisfy the needs ofthe fast changing society and keep abreast with the economicdevelopments taking place in the country. as new situationsarise the law has to be evolved in order to meet the chal-lenge of such new situations. law cannot afford to remainstatic. we have to evolve new principles and lay down newnorms which would adequately deal with the new problemswhich arise in a highly industrialised economy. we cannotallow our judicial thinking to be constricted by referenceto the law as it prevails in england or for the matter ofthat in any other foreign country. we no longer need thecrutches of a foreign legal order. we are certainly preparedto receive light from whatever source it comes but we haveto build up our own jurisprudence and we cannot countenancean argument that merely because the new law does not recog-nise the rule of strict and absolute liability in cases of
hazardous or dangerous liability or the rule as laid down inrylands v. fletcher as is developed in england recognisescertain limitations and responsibilities. we in india cannothold our hands back and i venture to evolve a new. principleof liability which english courts have not done. we have todevelop our own law and if we find that it is necessary toconstruct a new principle of liability to deal with anunusual situation which has arisen and which is likely toarise in future on account of hazardous or inherently dan-gerous industries which are concommitant to an industrialeconomy, there is no reason why we should hesitate to evolvesuch principle of liability merely because it has not beenso done in england. we are of the view that an enterprisewhich is engaged in a hazardous or inherently dangerousindustry which poses a potential threat to the health andsafety of the persons working in the factory and residing inthe surrounding areas owes an absolute and nondelegable dutyto the community to ensure that no harm results to anyone onaccount of hazardous or inherently dangerous nature of theactivity which it has undertaken. the enterprise must beheld to be under an obligation to provide that the hazardousor inherently dangerous activity in which it is engaged mustbe conducted with the highest standards of safety and if anyharm results on account of such activity, the enterprisemust be absolutely liable to compensate for such harm and itshould be no answer to the enterprise to say that it hadtaken all reasonable care and that the harm occurred withoutany negligence on its part. since the persons harmed onaccount of the hazardous or inherently dangerous activitycarried on by the enterprise would not be in a position toisolate the process of operation from the hazardous prepara-tion of substance or any other related element that causedthe harm must be held strictly liable for causing such harmas a part of the social cost for carrying on the hazardousor844inherently dangerous activity. if the enterprise is permit-ted to carry on an hazardous or inherently dangerous activi-ty for its profit, the law must presume that such permissionis conditional on the enterprise absorbing the cost of anyaccident arising on account of such hazardous or inherentlydangerous activity as an appropriate item of its over-heads.such hazardous or inherently dangerous activity for privateprofit can be tolerated only on condition that the enter-prise engaged in such hazardous or inherently dangerousactivity indemnifies all those who suffer on account of thecarrying on of such hazardous or inherently dangerous activ-ity regardless of whether it is carried on carefully or not.this principle is also sustainable on the ground that theenterprise alone has the resource to discover and guard-against hazards or dangers and to provide warning against
potential hazards. we would therefore hold that where anenterprise is engaged in a hazardous or inherently dangerousactivity and harm results to anyone on account of an acci-dent in the operation of such hazardous or inherently dan-gerous activity resulting, for example, in escape of toxicgas the enterprise is strictly and absolutely liable tocompensate all those who are affected by the accident andsuch liability is not subject to any of the exceptions whichoperate vis-a-vis the tortious principle of strict liabilityunder the rule in rylands v. fletcher (supra). we would also like to point out that the measure ofcompensation in the kind of cases referred to in the preced-ing paragraph must be co-related to the magnitude and capac-ity of the enterprise because such compensation must have adeferent effect. the larger and more prosperous the enter-prise, the greater must be the amount of compensation pay-able by it for the harm caused on account of an accident inthe carrying on of the hazardous or inherently dangerousactivity by the enterprise. since we are not deciding the question as to whethershriram is an authority within the meaning of article 12 soas to be subjected to the discipline of the fundamentalright under article 21, we do not think it would be justi-fied in setting up a special machinery for investigation ofthe claims for compensation made by those who allege thatthey have been the victims of oleum gas escape. but we woulddirect that delhi legal aid and advice board to take up thecases of all those who claim to have suffered on account ofoleum gas and to file actions on their behalf in the appro-priate court for claiming compensation against shriram. suchactions claiming compensation may be filed by the delhilegal aid and advice board.within two months from845today and the delhi administration is directed to providethe necessary funds to the delhi legal aid and advice boardfor the purpose of filing and prosecuting such actions. thehigh court will nominate one or more judges as may be neces-sary for the purpose of trying such actions so that they maybe expeditiously disposed of. so far as the issue of reloca-tion and other issues are concerned the writ petition willcome up for hearing on 3rd february, 1987.a.p.j. petition dis-posed of.846
petitioner:rural litigation and entitlementkendra & ors. etc.
vs.
respondent:state of uttar pradesh & ors. etc.
date of judgment18/12/1986
bench:bhagwati, p.n. (cj)bench:bhagwati, p.n. (cj)misra rangnath
citation: 1987 air 359 1987 scr (1) 641 1986 scc supl. 517 jt 1986 1119 1986 scale (2)1083 citator info : rf 1987 sc2426 (5) r 1988 sc2187 (14)
act:constitution of india, 1950:-- article 51a(g)--environment--preservation
of--ecological balance keeping unaffected--task--governmentas also every citizen undertake.mineral regulations act, 1948/minerals concession rules,1949. limestone--quarrying of--grant of mining leases--depos-its not to be exploited at cost of ecology and environmentalconsideration.
headnote: a letter received from the rural litigation and entitle-ment kendra dehradun was treated as a writ petition andnotices issued. the main allegations therein related tounauthorised and illegal mining operations carried on in themussoorie hills and the area around adversely affecting theecology of the area and leading to environmental disturb-ances. in july, 1983 this court directed all fresh quarryingto be stopped. on 11.8.1983 this court appointed bhargav committee forinspecting all the mines except those belonging to the stateof uttar pradesh and the union of india for determiningwhether the safety standards laid down in the mines act 1952and the mines rules were being observed or not and whetherthere was any danger of landslides or was any hazard toindividuals, cattle or agricultural lands by carrying on ofmining operations. blasting operations in the area were alsodirected to be stopped. on the basis of the main report ofthe said committee this court on august 24, 1983 permittedremoval of limestone already quarried. the committee direct-ed closure of some of the mines and reported the defectsappearing in other mines and called upon the mine owners tocarry out rectifications. the bhargav committee classified the mines in a, b and cgroups. so far as the mines in group c were concerned, thecommittee recommended that they should he closed down. asregards the mines in group a, the committee opined that thequarrying could he carried on without any environmental orecological hazard. the committee also642recommended closure of b group mines permanently. the uniongovernment had also appointed a working group on mining oflimestone quarries in dehradun and mussoorie area some timein. 1983 which was also headed by shri bhargav who washeading the committee appointed by this court. the workinggroup submitted its report in september, 1983. after acomparative analysis of the two reports, the court foundthat the working group had taken these very mines for theirstudy and had divided the mines into two categories, namely,class i and class ii. all the mines then categorised asclass i were now included by the bhargav committee in group
a and the remaining mines now classified as group b and cwere in class ii. this court had also appointed an expert committee headedby professor valdia to consider the problems of ecology andenvironment with reference to mining. professor valdia gavea separate report while the other two members gave a jointreport. in its order of march 12, 1985, this court observedthat it does not propose to rely on the report of professorvaldia and it would not be safe to direct continuance ordiscontinuance of mining operations in limestone quarries onthe basis of main boundary thrust. in 12th march, 1985 orderthis court directed that the limestone quarries located insahasradhara block and placed in category il by the workinggroup should be closed down, that the limestone quarriesplaced in category ii by the working group other than thosewhich are placed in category b and c by the bhargav commit-tee should also be closed down save and except for thelimestone quarries covered by the mining leases numbers 31,36 and 37 for which the same direction should be given aswould be given in regard to the limestone quarries classi-fied as category b in the bhargav committee report, and thatif there are any subsisting leases in respect of any ofthese limestone quarries they will forthwith come to an endand if any suits or writ petitions for continuance expire onunexpired leases in respect of any of these limestone quar-ries are pending, they too will stand dismissed. this court also directed closing down of the mines in acategory located within the municipal limits of mussoorie. in regard to b class quarries of the bhargav committeereport which featured in category ii of the working groupreport, as also of the a category quarries within the munic-ipal limits, this court set up a committee headed by shribandopadhyay, then secretary in the ministry of rural devel-opment and called upon the mine owners to submit a full anddetailed scheme to that committee for its examination643and report to the court about the same. it was directed thatuntil further orders from this court on the basis of thebandopadhyay committee report these mines shall not beworked. bandopadhyay committee submitted its report reject-ing the schemes put forward by various lessees of the mineswhich have been closed down. on 20th november, 1986 this court granted time to theerstwhile lessees of mines to file objections to bandopadh-yay committee report within six weeks and reply, if any, tobe filed by the petitioners and the state within four weeksthereafter. the petitions were to come up for hearing infebruary, 1987. by order dated march 12, 1985 the court made a detailedorder containing various directions reported in [(1985) 3scr 169] and the reasons therefor were to follow later.
hon'ble mr. justice a.n. sen one of the members of thebench who heard these petitions before his retirement deliv-ered judgment on 30th september 1985 expressing his viewsthat it is not necessary to give any further reasons thanthose which are already stated in the order made on 12thmarch, 1985 because the broad reasons have been adequatelyset out in the order and it would be an unnecessary exerciseto elaborate them.giving the reasons the court, held: 1. on a perusal of order dated 12th march, 1985the other members of the bench are inclined to agree withthe view taken by hon'ble mr. justice a.n. sen that the saidorder covered almost all the relevant aspects and touchedupon every issue germane to the matter. [646e] 2. the question whether the schemes submitted by themine lessees to bandopadhyay committee have been rightlyrejected or not and whether under those schemes, the minelessees can be allowed to carry on mining operations withoutin any way adversely affecting environment or ecologicalbalance or causing hazard to individuals, cattle or agricul-tural lands still remain to be considered and would have tobe decided in the light of the view taken by this court inthe order dated 12th march, 1985 and the instant judgment.[650c-e] 3. preservation of the environment and keeping theecological balance unaffected is a task which not onlygovernments but also every citizen must undertake. it is asocial obligation and every indian citizen644is reminded that it is his fundamental duty as enshrined inarticle 51 a(g) of the constitution. [653d-e] 4. consciousness for environmental protection is ofrecent origin. scientific development have made it possibleand convenient for man to approach the places which arebeyond his ken. the consequences of such interference withecology and environment have now come to be realised.[652f-h] 5. government both at the centre and in the state-mustrealize and remain cognizent of the fact that the stakeinvolved in the matter is large and far reaching. the evilconsequences would last long. once that unwanted situationsets in, amends or repairs would not be possible. the green-ery of india may perish and the thar desert may expand itslimits. [652 e-f] 6. it has been commended earlier to the state of uttarpradesh as also to the union of india that afforestationactivity may be carried out in the whole valley and thehills. such activity has been undertaken. this court is notoblivious of the fact that the natural resources have to betapped for the purposes of social development but one cannotforget of the same time that tapping of resources have to be
done with requisite attention and care so that ecology andenvironment may not be affected in any serious way; theremay not be any depletion of water resources and long termplanning must be undertaken to keep up the national wealth.[653b-c] 7. it is for the government and the nation-and not forthe court--to decide whether the deposits should be exploit-ed at the cost of ecology and environmental considerationsor the industrial requirement should be otherwise satisfied.it may be perhaps possible to exercise greater control andvigil over the operation and strike a balance between pres-ervation and utilisation and that would indeed be a matterfor an expert body to examine and on the basis of appropri-ate advice, government should take a policy decision andfirmly implement the same. [652d-e] 8. in the instant case, the limestone quarries in thearea are estimated to satisfy roughly three per cent of thecountry's demand. at the present rate of mining, the depos-its are likely to last some 50 years. digging of limestoneand allowing the waste to roll down or carried down by rainwater to the lower levels has affected the villages as alsothe agricultural lands located below the hills. for removingthe645limestones quarried from the mines, roads have been laid andfor that purpose the hills have been interfered with; traf-fic hazard for the local population both animals andmen--has increased. [652b] 9. in 1949 the minerals concession rules made by thecentral government under the minerals regulations act, 1948authorised grant of mining leases and several applicantscame forward for quarrying of high grade limestone. until1962, extraction of limestone was permitted on temporarypermits by the state govt. of uttar pradesh. [651 f-g]
judgment:original jurisdictionwrit petition no. 8209 & 8821 of 1983.(under article 32 of the constitution of india) m.a. krishnamoorthy, pramod dayal, rishi kesh, r.b.mehrotra, m.g. ramachandran, c.m. nayyar, m. karanjawala,s.a. sayed, sushil kumar jain, s. dikshit, p.p. juneja, p.k.jain, k.n. bhatt, d.n. misra, i. makwana, a. subba rao,harjinder singh, b.p. singh, parijat sinha, c.p. lal, shrinarain, s.k. gupta, k.r. nambiar, s.s. khanduja, k.k. jain,c.m. nargolkar, kapil sibal, r. ramachandran and miss a.subhashini for the appearing parties and devi ditta malpetitioner in person.the judgment of the court was delivered by,
ranganath misra, j. on march 12, 1985, after hearingcounsel and parties appearing in person at great length thiscourt made a detailed order wherein it was said;
"this case has been argued at great length before us not only because a large number of lessees of limestone quarries are involved and each of them has painstakingly and exhaustive- ly canvassed his factual as well as legal points of view but also because this is the first case of its kind in the country involv- ing issues relating to environment and ecolog- ical balance and the questions arising for consideration are of grave moment and signifi- cance not only to the people residing in the mussoorie hill range forming part of the himalayas but also in their implications to the welfare of the generality of people living in the country. it brings into sharp focus the conflict between development and conservation and serves to emphasise the need for reconcil- ing the two in the larger interest of the country. but since 646 having regard to the voluminous material placed before us and the momentous issues raised for decision, it is not possible for us to prepare a full and detailed judgment imme- diately and at the same time, on account of interim order made by us, mining operations carried out through blasting have been stopped and the ends of justice require that the lessees of limestone quarries should know, without any unnecessary delay, as to where they stand in regard to their limestone quar- ries, we propose to pass our order on the writ petitions. the reasons for the order will be set out in the judgment to follow later."
in the meantime, one of us our learned brother sen, j.,has retired from the court. before that event happened, on30th september, 1985, he delivered a judgment expressing hisviews on the matter. he indicated:
"i do not think it necessary to give any further reasons than those which are already stated in the order made by us on 12th march, 1985. speaking personally for myself, i think that the broad reasons have been adequately set out in the order and it would be an unnec- essary exercise to elaborate them."
on a perusal of our order of the 12th march, 1985, we areinclined to agree with his view that the detailed ordercovered almost all the relevant aspects and touched upon
every issue germane to the matter. as this was the first case of its type with wide andserious ramifications, we would like. to give a brief ac-count of the manner in which the proceedings commenced, werecarried on and are to be concluded. by an order dated 14.7.1983, this court directed aletter received from the rural litigation and entitlementkendra, dehra dun dated 2.7.1983 along with accompanyingaffidavits to be treated as a writ petition and issuednotice to the state of uttar pradesh and the collector ofdehra dun. the main allegation therein related to unautho-rised and illegal mining operations carried on in the muss-oorie hills and the area around adversely affecting theecology' of the area and leading to environmental disturb-ances. later on, another application was directed to betagged on and both the applications were dealt with togeth-er. several parties, mainly, mining lessees numbering morethan 100, got impleaded either at the instance of the peti-tioners or on their own seeking. by a later order made inthe month of july 1983,647this court directed all fresh quarrying to be stopped andcalled upon the district magistrate and the superintendentof police of dehra dun district to strictly enforce thatorder. on 11.8.1983, after heating the counsel for parties thenappearing, this court appointed a committee for the purposeof inspecting all the mines other than those belonging tothe state of uttar pradesh and the union of india, with aview to determining whether the safety standards laid downin the mines act, 1952, and the mines rules made thereunderwere being observed or not and whether there was any dangerof landslides on account of the quarrying operations partic-ularly during the monsoon in any of the mines and if therewas any other hazard to individuals, cattle or agriculturallands by reason of the carrying on of mining operations.blasting operations in the area were also directed to bestopped. this committee came to be known as the bhargavacommittee and its members were authorised to inspect themines and give suitable directions. the committee made itsmain report on the basis whereof this court on august 24,1983 permitted removal of limestone already quarried. thecommittee directed closure of some of the mines and reportedthe defects appearing in the other mines and called upon themine owners to carry out rectifications. the bhargava committee classified the mines in the areainto three groups being a, b and c. so far as the mines ingroup (c) were concerned, the committee was of the viewthat.they were not suitable for continuance and should,therefore, be closed down. so far as the question related tothe mines in group a the committee was of the opinion that
the quarrying could be carried on without any environmentalor ecological hazard. in regard to the b group mines, thebhargava committee opined that those may not be closed downpermanently though it did notice the adverse impact of theirmining activities. in its order of 12th march, 1985, thiscourt took note of the fact that the union government hadappointed a working group on mining of limestone quarries indehra dun and mussoorie area some time in 1983 and theworking group was also headed by shri bhargava who-washeading the committee appointed by this court. the othermembers of the working group were experts in the field andthe working group had submitted the report in september1983. a comparative analysis was made by this court inregard to the mines by referring to both the reports. thecourt found that the working group had taken these verymines for their study and had divided the mines into twocategories--namely, class i and class ii. it transpires648that all the mines then categorised as class i were nowincluded by the bhargava committee in group a and the re-maining mines now classified as group b and c by the bharga-va committee were in class ii. this court also, appointed an expert committee withprofessor valdia and two members mainly to consider theproblems of ecology and environment with reference to min-ing. professor valdia gave a separate report while the othertwo members gave a joint report. dealing with the separatereport furnished by professor valdia, this court in its ofmarch 12, 1985 stated:
we may-observe straightaway that we do not propose to rely on the report of professor valdia who was one of the members of the expert committee appointed by our order dated 2.9.1983 as modified by the order dated 23rd october 1, 1983 this. committee consisted of professor valdia, shri hukum singh and shri d.n. kaul and it was appointed to enquire and investigate into the question of disturbance of ecology and pollution and affectation of air, water and environment by reason of quar- rying operations or working of stone crushers or limestone kilns. shri hukum singh submitted a joint report in regard to various aspects while professor valdia submitted a separate report. professor valdia's report was confined shortly to the geological aspect and his report he placed considerable reliance on the main boundary thrust (shortly referred to as m.b.t) and he took the view that limestone quarries which were dangerously close to m.b.t. should be closed down, because they
were in the sensitive and vulnerable belt. we shall examine this report in detail when we give our reasons but we may straightaway point out that w do not think it safe to direct continuance or discontinuance of mining opera- tions-in limestone quarries on the basis of m.b.t."
at the further. hearings after the said order, parties didnot address arguments with reference to m.b.t. and we are ofthe view that this topic need not be dealt with by us: in12th march 1985 order we directed that the limestone quar-ries located in sahasradhara block and ii by the workinggroup should be closed down.
also direct, agreeing with the report made by 649 the working group that the limestone quarries placed in category ii by the working group other than those which are placed in catego- ries b and c by the bhargava committee should also not be allowed to be operated and should be closed down save and except for the lime- stone quarries covered by the mining leases numbers 31,36 and 37 for which we will give the same direction as we are giving in the succeeding paragraphs in regard to the lime- stone quarries classified as category b in the bhargava committee report. if there are any subsisting leases in respect of any of these limestone quarries they will forthwith come to an end and if any suits or writ petitions for continuance expire or unexpired leases in respect of any of these limestone quarries are pending, they too will stand dismissed."
this court directed closing down of the mines in acategory located within the municipal limits of mussoorie. in regard to b class quarries of the bhargava committeereport which featured in category ii of the working groupreport, as also of the a category quarries within the munic-ipal limits, we set up a committee under the chairmanship ofshri d. bandyopadhyay, then secretary in the ministry ofrural development and called 'upon the mine owners to submita full and detailed scheme to that committee which wouldexamine the said scheme keeping in view the provisions ofthe law as also the expediency of allowing mining operationsin the area and report to the court about the same. we havedirected that until further orders from this court on thebasis of bandopadhyay committee report these mines shall notbe worked. it may be pointed out that thebandopadhyaycommittee has submitted its report rejecting the schemes putforward by various lessees of the mines which have beenclosed down and on 20th november, 1986, this court has
directed: "we are informed that bandopadhyay committee has submitted its report rejecting the. schemes put forward by various erstwhile lessees of the mines which havebeen closed down now. this report was made as far back as' in april 1986 and those who wanted to raise objections, ought to have done so within a reasonable time after the report was submitted and those who have failed to do so, we cannot shut them out and prevent them from raising their objections; and in any event delay in filing cannot prejudice public interest since stone quarrying had already closed 650 down. we would, therefore, grant time to the erstwhile lessees of mines, who wish to raise objections, to file their objections within six weeks from to-day and reply, if any, to those objections may be filed on behalf of the petitioners and the state of uttar pradesh within four weeks thereafter.
the old record of the case may also be kept in court at the time of the hearing of this writ petition.
writ petition will come up for hearing on 3rd tuesday in february 1987 before a bench of which hon'ble mr. justice ranganath misra is a member."
from the aforesaid order it is clear that in view of thedirections given by this court the question still remains tobe considered whether the schemes submitted by the minelessees to the bandopadhyaya committee under our order dated12th march 1985 have been rightly rejected or not and wheth-er under those schemes, the mine lessees can be allowed tocarry on mining operations without in any way adverselyaffecting environment or ecological balance or causinghazard to individuals, cattle and agricultural lands. thisquestion would, of course, have to be decided in the lightof the view taken by us in our order dated 12th march 1985and the present judgment. the himalayan range on the northern boundary of india isthe most recent mountain range and yet it is the tallest. ithas formed the northern boundary of the country and untilrecent times provided an impregnable protection to theindian sub-continent from the northern direction. thismountain range has been responsible to regulate the monsoonsand consequently the rainfall in the indo-gangetic belt. thehimalayas are the source for perennial rivers--the ganges,yamuna and brahmputra as also several other tributarieswhich have joined these main rivers. for thousands of years
nature has displaced its splendour through the lush greentrees, innumerable springs and beautiful flowers. the hima-layas has been the store house of herbs, shrubs and plants.deep forests on the lower hills havehelped to generatecongenial conditions for good rain. the doon valley has been an exquisite region bounded bythe himalayanand the shivalik ranges and the ganga andyamuna rivers. the perennial water streams and the fertilesoil have contributed not only to the growth of dense lushgreen forests but have helped the yield651of basmati rice and leeches. mussoorie, known as the queenof indian hill stations situated at a height of 5000 ft.above sea level and dehra doon located below the heightshave turned out to be important places of tourist attrac-tion, centres of education, research and defence complex. at present the valley is in danger because of erratic,irrational and uncontrolled quarrying of limestone. thelandscape has been stripped bare of its verdant cover. greencover today is about 10 per cent of the area while fromdecades ago it was almost 70 per cent. the limestone belt has acted as the aquifer--to hold andrelease water perennially. all the important streams--song,baldi, rispana, kairuli and bhitarli originate from thisarea. reckless mining, careless disposal of the mine-debrisand random blasting operations have disturbed the naturalwater system and the supply of water both for drinking andirrigation has substantially gone down: there is a growingapprehension that if mining is carried on in this process, astage will come when there would be dearth of water in theentire belt. about a hundred years back around the middle of the lastcentury, britishers penetrated into the area and developedmussoorie as a hill resort. the existence of huge limestonedeposits came to be discovered by the beginning of thiscentury. quarrying operations on small scale began. directhuman interference in limestone quarrying seems to havebegun in 1900. around 1904 all the quarries were declared asproperty of the government and as appears from the bando-padhyay report, in the year 1911 there existed only fourlimestone quarries. it had been working in the dehra dunarea. around 1947, limestone quarrying took a new turn and anumber of persons who had migrated from pakistan startedworking on limestone deposits by quarrying in private lands.in 1949, the minerals concession rules made by the centralgovernment under the minerals regulations act, 1948, autho-rised grant of mining leases and several applicants cameforward for quarrying of high grade limestone. until 1962,extraction of limestone was permitted on temporary permitsby the state government of uttar pradesh. in these proceedings we came across 105 mining leases
and these, as the various reports have indicated, had directenvironmental impact on the area. it is said that the lime-stone deposits in this area are of high grade having upto99.8 calcium carbonate. mining operations in these areashave led to cutting down of the forest. digging of652limestone andallowing the waste to roll down or carrieddown by rain water to the lower levels has affected thevillages as also the agricultural lands located below thehills. the naturally formed streams have been blocked.blasting has disturbed the natural quiet, has shaken thesoil, loosened the rocky structures and disturbed the entireecology of the area. for removing the limestones quarriedfrom the mines, roads have been laid and for that purposethe hills have been interfered with; traffic hazard for thelocal population--both animals and men--has increased. the limestone quarries in this area are estimated tosatisfy roughly three per cent of the country's demand forsuch raw material and we were told during the heating thatthe tata iron and steel company is the largest consumer ofthis limestone for manufacturer of a special kind of steel.at the present rate of mining, the deposits are likely tolast some 50 years. it is for the government and thenation-and not for the court--to decide whether the depositsshould be exploited as the cost of ecology and environmentalconsiderationsor the industrial requirement should beotherwise satisfied. it may be perhaps possible to exercisegreater control and vigil over the operation and strike abalance between preservation and utilisation that wouldindeed be a matter for an expert body to examine and on thebasis of appropriate advice, government should take a policydecision and firmly implement the same. governments--both at the centre and in the state--mustrealize and remain cognizant of the fact that the stakeinvolved in the matter is large and far-reaching. theevilconsequences would last long. once that unwanted situationsets in, amends or repairs would not be possible. the green-ery of india, as some doubt, may perish and the thar desertmay expand its limits. consciousness for environmental protection is of recentorigin. the united nations conference on world environmentheld in stockholm in june 1972 and the follow-up actionthereafter is spreading the awareness. over thousands ofyears men had been successfully exploiting the ecologicalsystem for his sustenance but with the growth of populationthe demand for land has increased and forest growth has beenand is being cut down and man has started encroaching uponnature and its assets. scientific developments have made itpossible and convenient for man to approach the places whichwere hitherto beyond his ken. the consequences of suchinterference with ecology and environment have now came to
be realised. it is necessary that the653himalayas and the forest growth on the mountain range shouldbe left uninterfered with so that there may be sufficientquantity of rain. the top soil may be preserved withoutbeing eroded and the natural setting of the area may remainintact. we had commended earlier to the state of uttarpradesh as also to the union of india that afforestationactivity may be carried out in the whole valley and thehills. we have been told that such activity has been under-taken. we are not oblivious of the fact that natural re-sources have got to be tapped for the purposes of socialdevelopment but one cannot forget at the same time thattapping of resources have to be done with requisite atten-tion and care so that ecology and environment may not beaffected in any serious' way; there may not be any depletionof water resources and long-term planning must be undertakento keep up the national wealth. it has always to be remem-bered that these are permanent assets of mankind and are notintended to be exhausted in one generation. we must place on record our appreciation of the stepstaken by the rural litigation and entitlement kendra. butfor this move, all that has happened perhaps may not havecome. preservation of the environment and keeping the eco-logical balance unaffected is a task which not only govern-ments but also every citizen must undertake. it is a socialobligation and let us remind every indian citizen that it ishis fundamental duty as enshrined in article 51 a(g) of theconstitution. we are of the view that the kendra should be entitled tothe costs of this proceeding. we assess the same at rs.10.000 and direct the state of uttar pradesh to pay the sameeither directly or through court within one month.a.p.j.654
petitioner:olga tellis & ors.
vs.
respondent:bombay municipal corporation & ors. etc.
date of judgment10/07/1985
bench:chandrachud, y.v. ((cj)bench:chandrachud, y.v. ((cj)fazalali, syed murtazatulzapurkar, v.d.reddy, o. chinnappa (j)varadarajan, a. (j)
citation: 1986 air 180 1985 scr supl. (2) 51 1985 scc (3) 545 1985 scale (2)5 citator info : f 1986 sc 204 (11) rf 1986 sc 847 (12) d 1989 sc 38 (13) d 1989 sc1988 (8,20,21) r 1990 sc1480 (41,109)
f 1991 sc 101 (23,32,223,239,258) rf 1991 sc1117 (5) rf 1991 sc1902 (24) e 1992 sc 789 (13)
act: constitution of india, 1950 : article 32 - fundamental rights - estoppel - principlebehind - no estoppel can be claimed against enforcement offundamental rights. article 21, 19(1) (e) & (g) - pavement and slumdwellers forcible eviction and removal of their hutmentsunder bombay municipal corporation act - whether deprivesthem of their means of livelihood and consequently right tolife - right to life - meaning of - whether includes rightto livelihood. article 32 & 21 - writ petition against procedurallyultra vires government action - whether maintainable. bombay municipal corporation act, 1888, s.314 - powerto remove encroachments "without notice , when permissible -section - whether ultra vires the constitution. administrative law - natural justice - audi alterampartem - notice - discretion to act with or without noticemust be exercised reasonably, fairly and justly - naturaljustice - exclusion - how far permissible.
headnote: the petitioners in writ petitions nos. 4610-12/81 liveon pavements and in slums in the city of bombay. some of thepetitioners in the second batch of writ petitions nos.5068-79 of 1981, are residents of kamraj nagar, a basti orhabitation which is alleged to have come into existence inabout 1960-61, near the western express highway, bombay,while others are residing in structures constructed off thetulsi pipe road, mahim, bombay. the peoples union for civilliberties, committee for the protection of democratic rightsand two journalists have also joined in the writ petitions.52 some time in 1981, the respondents - state ofmaharashtra and bombay municipal corporation took a decisionthat all pavement dwellers and the slum or busti dwellers inthe city of bombay will be evicted forcibly and deported totheir respective places of origin or removed to placesoutside the city of bombay. pursuant to that decision, thepavement dwellings of some of the petitioners were in factdemolished by the bombay municipal corporation. some of thepetitioners challenged the aforesaid decision of therespondents in the high court. the petitioners conceded
before the high court that they could not claim anyfundamental right to put up huts on pavements or publicroads, and also gave an undertaking to vacate the huts on orbefore october, 15, 1981. on such undertaking being given,the respondents agreed that the huts will not be demolisheduntil october 15, 1981 and the writ petition was disposed ofaccordingly. in writ petitions filed under article 32, thepetitioners challengedthe decision of the respondents todemolish the pavement dwellings and the slum hutments on thegrounds (i) that evicting a pavement dweller from hishabitat amounts to depriving him of his right to livelihood,which is comprehended in the right guaranteed by article 21of the constitution that no person shall be deprived of hislife except according to procedure established by law, (ii)that the impugned action of the state government and thebombay municipal corporation is violative of the provisionscontained in article 19(1)(3), 19(1)(g) and 21 of theconstitution, (iii) that the procedure prescribed by section314 of the bombay municipal corporation act, 1888 for theremoval of encroachments from pavements is arbitrary andunreasonable since, not only does it not provide for thegiving of a notice before the removal of an encroachmentbut, expressly enables that the municipal commissioner maycause the encroachments to be removed without notice , (iv)that it is constitutionally impermissible to characterisethe pavement dwellers as 'trespassers', because theiroccupation of pavements arises from economic compulsions;and (v) that the court must determine the content of the'right to life', the function of property in a welfarestate, the dimension and true meaning of the constitutionalmandate that property must subserve common good, the sweepof the right to reside and settle in any part of theterritory of india which is guaranteed by article 19(1) (a)and the right to carry on any occupation, trade or businesswhich is guaranteed by article 19(1) (g), the competingclaims of pavement dwellers on the one hand and of thepedestrians on the other and, the larger question ofensuring equality before the law.53 the respondents contested the writ petitions contendingthat (1) the petitioners must be estopped from contending inthe supreme court that the huts constructed by them on thepavements cannot be demolished because of their right tolivelihood, since they had conceded in the high court thatthey did not claim any fundamental right to put up huts onpavements or public roads and had given an undertaking tothe high court that they will not obstruct the demolition ofthe huts after october 15, 1981.; (2) that no person has anylegal right to encroach upon or to construct any structureon a foot-path, public street or on any place over which the
public has a right of way. the right conferred by article19(1) (e) of the constitution to reside and settle in anypart of india cannot be read to confer a licence toencroach and trespass upon public property; (3) that theprovisions of sections 312, 313 and 314 of the bombaymunicipal corporation act do not violate the constitution,but are conceived in public interest and great care is takenby the authorities to ensure that no harassment is caused toany pavement dweller by enforcing the provisions; (4) thatthe huts near the western express highway, vile parle,bombay, were constructed on an accessory road which is apart of the highway itself, and were never regularised bythe corporation and no registration numbers were assigned tothem; (5) that no deprivation of life, either directly orindirectly is involved in the eviction of the slum andpavement dweller from public places. the municipalcorporation is under an obligation under section 314 of theb.m.c. act to remove obstruction on pavements, publicstreets and other public places. the petitioners have notonly violated the provisions of the bombay municipalcorporation act, but they have contravened sections 111 and115 of the bombay police act also. disposing of the writ petitions,^ held: 1.1 the petitions are clearly maintainable underarticle 32 of the constitution. where the action takenagainst a citizen is procedurally ultra vires, the aggrievedparty can move the supreme court under article 32. [79 c-d] naresh shridhar mirajkar v. state of maharashtra [1966]3 s.c.r. 744-770, followed. smt. ujjam bai v. state of uttar pardesh. [1963] 1s.c.r. 778, referred to.54 1.2 there can be no estoppel against the constitution.the constitution is not only the paramount law of the landbut, it is the source and sustenance of all laws. itsprovisions are conceived in public interest and are intendedto serve a public purpose. the doctrine of estoppel is basedon the principle that consistency in word and action impartscertainty and honesty to human affairs. if a person makesrepresentation to another, on the faith of which the latteracts to is prejudice, the former cannot resile from therepresentation made by him. he must make it good. thisprinciple can have noapplication to representations maderegarding the assertion or enforcement of fundamentalrights. [77 c-e] 1.3 fundamental rights are undoubtedly conferred by theconstitution upon individuals which have to be asserted anden forced by them, if those rights are violated. but, thehigh purpose which the constitution seeks to achieve byconferment of fundamental rights is not only to benefit
individuals but to secure the larger interests of thecommunity. the preamable of the constitution says that indiais a democratic republic. it is in order to fulfil thepromise of the preamble that fundamental rights areconferred by the constitution, some on citizens like thoseguaranteed by articles 15, 16, 19, 21 and 29 and, some oncitizens and non-citizens alike, like those guaranteed byarticles 14, 21, 22 and 25 of the constitution. noindividual can barter away the freedoms conferred upon himby the constitution. a concession made by him in aproceedings, whether under a mis take of law or otherwise,that he does not possess or will not enforce any particularfundamental right, cannot create an estoppel against him inthat or any subsequent proceedings. such a concession, ifenforced, would defeat the purpose of the constitution. [77f-h, 78 a-b] the plea of estoppel is closely connected with the pleaof waiver, the object of both being to ensure bona fides inday-to day transactions. [78 d] in the instant case, notwithstanding the fact that thepetitioners had conceded in the bombay high court that theyhave no fundamental right to construct hutments on pavementsand that they will not object to their demolition afteroctober 15, 1981, they are entitled to assert that any suchaction on the part of public authorities will be inviolation of their fundamental rights. how far the argumentregarding the existence and scope of the right claimed bythe petitioners is well-founded is55another matter- but, the argument has to be examined despitethe concession. [78 c-d] basheshar nath v. the commissioner of income tax delhi(1959) supp. 1 s.c.r. 528, referred to. 2.1 the sweep of the right to life conferred by article21 is wide and far reaching. it does not mean merely thatlife cannot be extinguished or taken away as, for example,by the imposition andexecution of the death sentence,except according to procedure established by law. that isbut one aspect of the right to life. an equally importantfacet of that right is the right to livelihood because, noperson can live without the means of living, that is, themeans of livelihood. if the right to livelihood is nottreated as a part of the constitutional right to live, theeasiest way of depriving a person of his right to life wouldbe to deprive him of his means of livelihood to the point ofabrogation. such deprivation would not only denude the lifeof its effective content and meaningfulness but it wouldmake life impossible to live. and yet, such deprivationwould not have to bein accordancewith the procedureestablished by law, if the right to livelihood is notregarded as a part of the right to life. that, which alone
makes it possible to live, leave aside what makeslikelivable, must be deemed to be an integral component of theright to life. [79 f-h, 80 a-b] 2.2 the principles contained in articles 39(a) and 41must be regarded as equally fundamental in the understandingand interpretation of the meaning and content of fundamentalrights. if there is an obligation upon the state to secureto the citizens an adequate means of livelihood and theright to work, it would be sheer pedantry to exclude theright to livelihood from the content of the right to life.the state may not, by affirmative action, be compellable toprovide adequate means of livelihood or work to thecitizens. but, any person who is deprived of his right tolivelihood except according to just and fair procedureestablished by law, can challengethe deprivation asoffending the right to life conferred by article 21. [80 g-h, 81 a] munn v. illinois [1877] 94 us 113 and kharak singh v.the state of u.p. [1964] 1 s.c.r. 332 referred to. in re: sant ram (1960) 3 s.c.r. 499, distinguished.56 2.3 in a matter like the one in which the future ofhalf of the city's population is at stake, the court mustconsult authentic empirical data compiled by agencies,official and non-official. it is by that process that thecore of the problem can be reached and a satisfactorysolution found. it would be unrealistic on the part of thecourt to reject the petitions on the ground that thepetitioners have not adduced evidence to show that they willbe rendered jobless if they are evicted from the slums andpavements. common sense, which is a cluster of life'sexperiences, is often more dependable than the rival factspresented by warring litigants. [82 b-c] in the instant case, it is clear from the variousexpert studies that one of the main reasons of the emergenceand growth of squatter-settlements in big metropolitancities like bombay, is the availability of job opportunitieswhich are lacking in the rural sector. the undisputed factthat even after eviction, the squatters return to the citiesaffords proof of that position. these facts constituteempirical evidence to justify the conclusion that persons inthe position of petitioners live in slums and on pavementsbecause they have small jobs to nurse in the city and thereis nowhere else to live. evidently, they choose a pavementor a slum in the vicinity of their place of work, the timeotherwise taken in commuting and its cost being forbiddingfor their slender means. to lose the pavement or the slum isto lose the job. the conclusion, therefore, in terms of theconstitutional phraseology is that the eviction of thepetitioners will lead to deprivation of their livelihood andconsequently to the deprivation of life. [82 d, 83 b-d]
3.1 the constitution does not put an absolute embargoon the deprivation of life or personal liberty. it is fartoo well settled to admit of any argument that the procedureprescribed by law for the deprivation of the right conferredby article 21 must be fair, just and reasonable. just as amala fide act has no existence in the eye of law, even so,unreasonableness vitiates law and procedure alike. it istherefore essential that the procedure prescribed by law fordepriving a person of his fundamental right, must conform tothe means of justice and fair play. procedure, which isunjust or unfair in the circumstances of a case, attractsthe vice of unreasonableness, thereby vitiating the lawwhich prescribes that procedure and consequently, the actiontaken under it. any action taken by a public authority whichis invested with statutory powers has, therefore, to betested by the application of two standards: the action mustbe57within the scope of the authority conferred by law andsecondly, it must be reasonable. if any action, within thescope of the authority conferred by law, is found to beunreasonable, it must mean that the procedure established bylaw under which that action is taken is itself unreasonable.the substance of the law cannot be divorced from theprocedure which it prescribes for, how reasonable the lawis, depends upon how fair is the procedure prescribed by it.[83 e, 85 f-h, 86 a] 3.2 in order to decide whether the procedure prescribedby section 314 is fair and reasonable, the court must firstdetermine the true meaning of that section because, themeaning of the law determines its legality. considered inits proper perspective, section 314 is in the nature of anenabling provision and not of a compulsive character. itenables the commissioner in appropriate cases, to dispensewith previous notice to persons who are likely to beaffected by the proposed action. it does not require and,cannot be read to mean that, in total disregard of therelevant circumstances pertaining to a given situation, thecommissioner must cause the removal of an encroachmentwithout issuing previous notice. the primary rule ofconstruction is that the language of the law must receiveits plain and natural meaning. what section 314 provides isthat the commissioner may, without notice, cause anencroachment to be removed. it does not command that thecommissioner, shall without notice, cause an encroachment tobe removed. putting it differently, section 314 confers onthe commissioner the discretion to cause an encroachment tobe removed with or without notice. that discretion has to beexercised in a reasonable manner so as to comply with theconstitutional mandate that the procedure accompanying theperformance of a public act must be fair and reasonable. the
court must leen in favour of this interpretation because ithelps sustain the validity of the law. reading section 314as containing a command not to the issue before the removalof an encroachment will make the law invalid. [88 h, 89 a-d] 3.3 section 314 is so designed as to exclude theprinciples of natural justice by way of exception and not asa general rule. there are situations which demand theexclusion of the rules of natural justice by reason ofdiverse factors like time, place, the apprehended danger andso on. the ordinary rule which regulates all procedure isthat persons who are likely to be affected by the proposedaction must be afforded an opportunity of being heard as towhy that action should not be taken. the hearing may begiven individually or collectively, depending upon the facts58of each situation. a departure from this fundamental rule ofnatural justice may be presumed to have been intended by thelegislature only in circumstances which warrant it. suchcircumstances must be known to exist, when so required, theburden being upon those who affirm their existence. [89 e-g] 3.4 the proposition that notice need not be given of apro posed action because, there can possibly be no answer toit, is contrary to the well-recognized understanding of thereal import of the rule of hearing. that propositionoverlooks that justice must not only be done but mustmanifestly be seen tobe done and confuses one for theother. the appearance of injustice is the denial of justice.it is the dialogue with the person likely to be affected bythe proposed action which meets the requirement that justicemust also be seen to be done. procedural safeguards havetheir historical origins in the notion that conditions ofpersonal freedom can be preserved only when there is someinstitutional check on arbitrary action on the part of thepublic authorities. the right to be heard has two facets,intrinsic and instrumental. the intrinsic value of thatright consists in the opportunity which it gives toindividuals or groups, against whom decision taken by publicauthorities operate, to participate in the processes bywhich those decisions are made, an opportunity thatexpresses their dignity as persons. [90 h, 91 a-d] e.p. royappa v. state of tamil nadu [1974] 2 s.c.r.348, maneka gandhi v. union of india [1978] 2 s.c.r. 621,m.o. hoscot v. state of maharashtra [1979] 1 s.c.r. 192,sunil batra, i v. delhi administration [1979] 1 s.c.r. 392,sita ram. state of u.p. [1979] 2 s.c.r. 1085, hussainrakhatoon, i v. home secret any state of bihar, patna [1979] 3s.c.r. 532,537. husinara khatoon,ii v. home secretary stateof bihar, patna [1980] 1 s.c.c. 81 sunil batra, ii. v. delhiadministration [1980] 2 s.c.r. 557, jolly george verghese v.the bank of cochin [1980] 2 s.c.r. 913, 921-922. kasturi lallakshmi redy v. state of jammu & kashmir [1980] 3 s.c.r.
1338, 1356, francis coralie muliin v. the administratorunion territory of delhi [1981] 2 s.c.r. 516, 523-524, theinfluence of remedies on rights' (current legal problems[1953] volume 6), per frankfurter, j. in viterall v. seton 3l. ed (2nd series) 1012, ramana dayaram shetty v. theinternational airport authority of india [1979] 3 s.c.r.1014, 1032, referred to. in the instant case, the procedure prescribed bysection 314 of the bombay municipal corporation act forremoval of encroachments on the footpaths or pavements overwhich the public has the59right of passage or access, cannot be regarded asunreasonable, unfair or unjust. there is no static measureof reasonableness which can be applied to all situationsalike. indeed, the question is this procedure reasonable?"implies and postulates the inquiry as to whether theprocedure prescribed is reasonable in the circumstances ofthe case. francis corlie mullin v. the administrator, unionterritory of delhi [1981] 2 s.c.r. 516, 523-524, referredto. 3.5 footpaths or pavements are public properties whichare intended to serve the convenience of the general public.they are not laid for private use and indeed, their use fora private purpose frustrates the very object for which theyare carved out from portions of public streets. the mainreason for laying out pavements is to ensure that thepedestrians are able to go about their daily affairs with areasonable measure of safety and security. that facility,which has matured into a right of the pedestrians, cannot beset at naught by allowing encroachments to be made on thepavements. [87 b-c] 3.6 no one has the right to make use of a publicproperty for a private purpose without the requisiteauthorisation and, therefore, it is erroneous to contendthat the pavement dwellers have the right to encroach uponpavements by constructing dwellings thereon. public streets,of which pavements form a part, are primarily dedicated forthe purpose of passage and, even the pedestrians have butthe limited right of using pavementsfor the purpose ofpassing and repassing. so long as a person does nottransgress the limited purpose for which pavements are made,his use thereof is legitimate and lawful. but, if a personputs any public property to a use for which it is notintended and is not authorised so to use it, he becomes atrespasser. [87 d-f] putting up a dwelling on the pavement is a case whichis clearly on one side of the line showing that it is an actof trespass. [87 h] hickman v. maisey [1980] 1 q.b. 752, referred to.
s.l. kapoor v. jagmohan [1981] 1 s.c.r. 746, 766, ridgev. baldwin [1964] ac 40 at 68, john v. rees [1970] 1chancery 345 at 402, annamunthodo v. oil fields workers'trade union [1961] 3 all e.r. 621 (h.l.) at 625, margaritsfuentes at al v. tobert l.60shevin 32, l. ed. 2nd 556 at 574, chintepalli agency talukarrack sales cooperative society ltd. v. secretary (food andagriculture) [1978] 1 s.c.r. 563 at 567, 569-70, reliedupon. 4.1 there is no doubt that the petitioners are usingpavements and other public properties for an unauthorisedpurpose. but, their intention or object in doing so is notto "commit an offence or intimidate insult or annoy anyperson", whichis the gist of the offence of "criminaltrespass" under section 441 of the penal code. they manageto find a habitat in places which are mostly filthy ormarshy, out of sheer helplessness. it is not as if they havea free choice to exercise as to whether to commit anencroachment and if so, where. the encroachment committed bythese persons are involuntary acts in the sense that thoseacts are compelled by inevitable circumstances and are notguided by choice. trespass is a tort. but, even the law oftorts requires that though a trespasser may be evictedforcibly, the force used must be no greater than what isreasonable and appropriate to the occasion and, what is evenmore important, the trespasser should be asked and given areasonable opportunity to depart before force is used toexpel him. [93 a-d] in the instant case, the court would have directed themunicipal commissioner to afford an opportunity to thepetitioners to show why the encroachments committed by themon pavements or footpaths should not be removed. but, theopportunity which was denied by the commissioner was grantedby the supreme court in an ample measure, both sides havingmade their contentions elaborately on facts as well as onlaw. having considered those contentions the court is of theopinion that the commissioner was justified in directing theremoval of the encroachments committed by the petitioners onpavements, footpaths or accessory roads. [94 e-f] 4.2 pavement dwellers who were censused or who happenedto be censused in 1976 should be given, though not as acondition precedent to their removal, alternate pitches atmalavani or, at such other convenient place as thegovernment considers reasonable but not farther away interms of distance; slum dwellers who were given identitycards and whose dwellings were numbered in the 1976 censusmust be given alternate sites for their resettlement; slumswhich have been in existence for a long time, say for twentyyears or more, and which have been improved and developedwill not be removed unless the land on which they stand or
the appurtenant land, is required for a public purpose, inwhich case, alternate sites of accommodation will beprovided to61them; the 'low income scheme shelter programme' which isproposed to be undertaken with the aid of the world bankwill be pursued earnestly; and the 'slum upgradationprogramme (sup)' under which basic amenities are to be givento slum dwellers will be implemented without delay. in orderto minimise the hardship involved in any eviction, theslums, wherever situated, will not be removed until onemonth after the end of the current monsoon season, that isuntil october 31, 1985 and, thereafter, only in accordancewith this judgment. if any slum is required to be removedbefore that date, parties may apply to the supreme court.pavement dwellers, whether censused or uncensused, will notbe removed until the same date viz. october 31, 1984. [98 d-h] 4.3 in so far as the kamraj nagar basti is concerned,there are over 400 hutments therein. since the basti issituated on a part of the road leading to the expresshighway, serious traffic hazards arise on account of thestraying of the basti children on to the express highway, onwhich there is heavy vehicular traffic. the same criterionwould apply to the kamaraj nagar basti as would apply to thedwellings constructed unauthorisedly on other roads andpavements in the city. [95 c-d]
judgment: original jurisdiction : writ petition nos. 4610-4612 &5068-5079 of 1981. (under article 32 of the constitution of india.) miss indira jaisingh, miss rani jethmalani, anandgrover and sumeet kachhwaha for the petitioners in w.p. no.4610-12 of 1981. ram jethmalani, v.m. tarkunde, miss darshna bhogilal,mrs. indu sharma and p.h. parekh for the petitioners in w.p.nos. 5068-79 of 1981. l.n. sinha attorney general, p. shankaranarayanan andm.n. shroff for respondent nos. 2 & 3 in w.p. nos. 4610-12of 1981 and for respondent nos. 1 and 3 in w.p. no. 5068-79of 1981. k.k.singhvi, f.n.d. mollo and d.n. mishra forrespondent no. 1 in w.p. nos. 4610-12 and for respondent no.2 in w.p. no.5068-79 of 1981. the judgment of the court was delivered by : chandrachud, cj. these writ petitions portray theplight of lakhs of persons who live on pavements and inslums in the city of bombay. they constitute nearly half the
population of62the city. the first group of petitions relates to pavementdwellers while the second group relates to both pavement andbasti or slum dwellers. those who have made pavements theirhomes exist in the midst of filth and squalor, which has tobe seen to believed. rabid dogs in search of stinking meatand cats in search of hungry rats keep them company. theycook and sleep where they ease, for no conveniences areavailable to them. their daughters, come of age, bathe underthe nosy gaze of passers by, unmindful of the feminine senseof bashfulness. the cooking and washing over, women picklice from each other's hair. the boys beg. menfolk, withoutoccupation, snatch chains with the connivance of thedefenders of law and order; when caught, if at all, they say: "who doesn't commit crimes in this city ? it is these men and women who have come to this courtto ask for a judgment that they cannot be evicted from theirsqualid shelters without being offered alternativeaccommodation. they rely for their rights on article 21 ofthe constitution which guarantees that no person shall bedeprived of his life except according to procedureestablished by law. they do not contend that they have aright to live on the pavements. their contention is thatthey have a right to live, a right which cannot be exercisedwithout the means of livelihood. they have no option but toflock to big cities like bombay, which provide the means ofbare subsistence. they only choose a pavement or a slumwhich is nearest to their place of work. in a word, theirplea is that the right to life is illusory without a rightto the protection of the means by which alone life can belived. and, the right to life can only be taken away orabridged by a procedure established by law, which has to befair and reasonable, not fanciful or arbitrary such- as isprescribed by the bombay municipal corporation act or thebombay police act. they also rely upon their right to resideand settle in any part of the country which is guaranteed byarticle 19(1)(e). the three petitioners in the group of writ petitions4610 4612 of 1981 are a journalist and two pavementdwellers. one of these two pavement dwellers, p. angamuthu,migrated from salem, tamil nadu, to bombay in the year 1961in search of employment. he was a landless labourer in hishome town but he was rendered jobless because of drought. hefound a job in a chemical company at dahisar, bombay, on adaily wage of rs-23 per day. a slum-lord extorted a sum ofrs.2,50 from him in exchange of a shelter of plastic sheetsand canvas on a pavement on the western express highway,bombay. he lives in it with his wife and three daughters whoare 16, 13 and 5 years of age.63
the second of the two pavement dwellers came to bombayin 1969 from sangamner, district ahmednagar, maharashtra. hewas a cobbler earning 7 to 8 rupees a day, but his so-calledhouse in the village fell down. he got employment in bombayas a badli kamgar for rs. 350 per month. he was lucky inbeing able to obtain a "dwelling house" on a pavement attulsiwadi by paying rs. 300 to a goonda of the locality. thebamboos and the plastic sheets cost him rs. 700. on july 13, 1981 the then chief minister ofmaharashtra, shri a.r. antulay, made an announcement whichwas given wide publicity by the newspapers that all pavementdwellers in the city of bombay will be evicted forcibly anddeported to their respective places of origin or removed toplaces outside the city of bombay. the chief ministerdirected the commissioner of police to provide the necessaryassistance to respondent 1, the bombay municipalcorporation, to demolish the pavement dwellings and deportthe pavement dwellers. the apparent justification which thechief minister gave to his announcement was : "it is a veryinhuman existence. these structures are flimsy and open tothe elements. during the monsoon there is no way thesepeople can live comfortably." on july 23, 1981 the pavement dwelling of p. angamuthuwas demolished by the officers of the bombay municipalcorporation. he and the members of his family were put in abus for salem. his wife and daughters stayed back in salembut he returned to bombay in search of a job and got into apavement house once again. the dwelling of the otherpetitioner was demolished even earlier, in january 1980 buthe rebuilt it. it is like a game of hide and seek. thecorporation removes the ramshackle shelters on the pavementswith the aid of police, the pavement dwellers flee to lessconspicuous pavements in by-lanes and, when the officialsare gone, they return to their old habitats. their mainattachment to those places is the nearness thereof to theirplace of work. in the other batch of writ petitions nos. 5068-79 of1981, which was heard along with the petitions relating topavement dwellers, there are 12 petitioners. the first fiveof these are residents of kamraj nagar, a basti orhabitation which is alleged to have come into existence inabout 1960-61, near the western express highway, bombay. thenext four petitioners were residing in structuresconstructed off the tulsi pipe road,64mahim, bombay. petitioner no. 10 is the peoples' union ofcivil liberties, petitioner no. 11 is the committee for theprotection of democratic rights while petitioner no. 12 is ajournalist. the case of the petitioners in the kamraj nagar groupof cases is that there are over 500 hutments in this
particular basti which was built in about 1960 by personswho were employed by a construction company engaged inlaying water pipes along the western express highway. theresidents of kamraj nagar are municipal employees, factoryor hotel workers, construction supervisors and so on. theresidents of the tulsi pipe road hutments claim that theyhave been living there for 10 to 15 years and that, they areengaged in various small trades. on hearing about the chiefminister's announcement, they filed a writ petition in thehigh court of bombay for an order of injunction restrainingthe officers of the state government and the bombaymunicipal corporation from implementing the directive of thechief minister. the high court granted an ad-interiminjunction to be in force until july 21, 1981. on that date,respondents agreed that the huts will not be demolisheduntil october 15, 1981. however, it is alleged, on july 23,1981, the petitioners were huddled into state transportbuses for being deported out of bombay. two infants wereborn during the deportation but that was set off by thedeath of two others. the decision of the respondents to demolish the huts ischallenged by the petitionerson the ground that it isviolative of articles 19 and 21 of the constitution. thepetitioners also ask for a declaration that the provisionsof sections 312, 313 and 314 of the bombay municipalcorporation act, 1888 are in valid as violating articles 14,19 and 21 of the constitution. the reliefs asked for in thetwo groups of writ petitions are that the respondents shouldbe directed to withdraw the decision to demolish thepavement dwellings and the slum hutments and, where they arealready demolished, to restore possession of the sites tothe former occupants. on behalf of the government of maharashtra, a counter-affidavit has been filed by v.s.munje, under secretary inthe department of housing. the counter-affidavit meets thecase of the petitioners thus. the government of maharashtraneither proposed to deport any payment dweller out of thecity of bombay nor did it, in fact, deport anyone. such ofthe pavement dwellers, who expressed their desire inwriting, that they wanted to return to their home towns andwho sought assistance from the government in65that behalf were offered transport facilities up to thenearest rail head and were also paid railway fare or busfare and incidental expenses for the onward journey. thegovernment of maharashtra had issued instructions to itsofficers to visit specific pavements on july 23, 1981 and toensure that no harassment was caused to any pavementdweller. out of 10,000 hutment-dwellers who were likely tobe affected by the proposed demolition of hutmentsconstructed on the pavements, only 1024 persons opted to
avail of the transport facility and the payment ofincidental expenses. the counter-affidavit says that no person has any legalright to encroach upon or to construct any structure on afootpath, public street or on any place over which thepublic has a right of way. numerous hazards of health andsafety arise if action is not taken to remove suchencroachments. since, no civic amenities can be provided onthe pavements, the pavement dwellers use pavements oradjoining streets for easing themselves. apart from this,some of the pavement dwellers indulge in anti-social actslike chain-snatching, illicit distillation of liquor andprostitution. the lack of proper environment leads toincreased criminal tendencies, resulting in more crime inthe cities. it is, therefore, in public interest that publicplaces like pavements and paths are not encroached upon. thegovernment of maharashtra provides housing assistance to theweaker sections of the society like landless labourers andpersons belonging to low income groups, within the framework of its planned policy of the economic and socialdevelopment of the state. any allocation for housing has tobe made after balancing the conflicting demands from variouspriority sectors. the paucity of resources is a restrainingfactor on the ability of the state to deal effectively withthe question of providing housing to the weaker sections ofthe society. the government of maharashtra has issued policydirectives that 75 percent of the housing programme shouldbe allocated to the lower income groups and the weakersections of the society. one of the objects of the state'splanning policy is to ensure that the influx of populationfrom the rural to the urban areas is reduced in the interestof a proper and balanced social and economic development ofthe state and of the country. this is proposed to beachieved by reversing the rate of growth of metropolitancities and by increasing the rate of growth of small andmedium towns. the state government has therefore, devised anemployment guarantee scheme to enable the rural population,which remains unemployed or underemployed at certain periodsof the year, to get employment during such periods. a sum66of about rs. 180 crores was spent on that scheme during theyears 1979-80 and 1980-81. on october 2, 1980 the stategovernment launched two additional schemes for providingemployment opportunities for those who cannot get work dueto old age or physical infirmities. the state government hasalso launched a scheme for providing self-employmentopportunities under the 'sanjay gandhi niradhar anudanyojana'. a monthly pension of rs. 60 is paid to those whoare too old to work or are physically handicapped. in thisscheme, about 1,56,943 persons have been identified and asum of rs. 2.25 crores was disbursed. under another scheme
called 'sanjay gandhi swawalamban yojana', interest-freeloans, subject to a maximum of rs. 2,500, were being givento persons desiring to engage themselves in gainfulemployment of their own. about 1,75,000 persons hadbenefited under this scheme, to whom a total sum of rs. 5.82crores was disbursed by way of loan. in short, the objectiveof the state government was to place greater emphasis onproviding infrastructural facilities to small and mediumtowns and to equip them so that they could act as growth andservice centres for the rural hinterland. the phenomenon ofpoverty which is common to all developing countries has tobe tackled on an all-india basis by making the gains ofdevelopment available to all sections of the society througha policy of equitable distribution of income and wealth.urbanisation is a major problem facing the entire country,the migration of people from the rural to the urban areasbeing a reflection of the colossal poverty existing in therural areas. the rural poverty cannot, however, beeliminated by increasing thepressure of population onmetropolitan cities like bombay. the problem of poverty hasto be tackled by changing the structure of the society inwhich there will be a more equitable distribution of incomeand greater generation of wealth. the state government hasstepped up the rate of construction of tenements for theweaker sections of the society from 2500 to 9500 per annum. it is denied in the counter-affidavit that theprovisions of sections 312, 313 and 314 of the bombaymunicipal corporation act violate the constitution. thoseprovisions are conceived in public interest and great careis taken by the authorities to ensure that no harassment iscausedto any pavement dweller while enforcing theprovisions of those sections. the decision to remove suchencroachments was taken by the government with specificinstructions that every reasonable precaution ought to betaken to cause the least possible inconvenience to thepavement dwellers. what is more important, so the counter-affidavit says, the government of maharashtra had decidedthat, on the basis of67the census carried out in 1976, pavement dwellers who wouldbe uprooted should be offered alternate developed pitches atmalvani where they could construct their own hutments.according to that census, about 2,500 pavement hutments onlywere then in existence. the counter-affidavit of the state government describesthe various steps taken by the central government under thefive year plan of 1978-83, in regard to the housingprogrammes. the plan shows that the inadequacies of housingpolicies in india have both quantitative and qualitativedimensions. the total investment in housing shall have to beof the magnitude of rs. 2790 crores, if the housing problem
has to be tackled even partially. on behalf of the bombay municipal corporation, acounter-affidavit has been filed by shri d.m. sukthankar,municipal commissioner of greater bombay. that affidavitshows that he had visited the pavements on the tulsi piperoad (senapati bapat marg) and the western express high way,vile parle (east), bombay. on july 23, 1981, certainhutments on these pavements were demolished under section314 of the bombay municipal corporation act. no prior noticeof demolition was given since the section does not providefor such notice. the affidavit denies that the intensespeculation in land prices, as alleged, owes its origin tothe high rise buildings which have come up in the city ofbombay. it is also denied that there are vast vacant piecesof land in the city which can be utilised for housing thepavement dwellers. section 61 of the b.m.c. act lays downthe obligatory duties of the corporation. under clauses (c)and (d) of the said section, it is the duty of thecorporation to remove excrementitious matters, refuse andrubbish and to take measures for abatement of every kind ofnuisance. under clause(g) of that section, the corporationis under an obligation to take measures for preventing andchecking the spread of dangerous diseases. under clause (o),obstructions and projections in or upon public streets andother public places have to be removed. section 63 (k)empowers the corporation to take measures to promote publicsafety, health or convenience, not specifically providedotherwise. the object of sections 312 to 314 is to keep thepavements and foot-paths free from encroachment so that thepedestrians do not have to make use of the streets on whichthere is heavy vehicular traffic. the pavement dwellersanswer the nature's call, bathe, cook and wash their clothesand utensils on the foot-paths and on parts of publicstreets adjoining the foot-68paths. their encroachment creates serious impediments inrepairing the roads, foot-paths and drains. the refusal toallow the petitioners and other persons similarly situatedto use foot-paths as their abodes is, therefore, notunreasonable, unfair, or unlawful. the basic civicamenities, such as drainage, water and sanitation, cannotpossibly be provided to the pavement dwellers. since thepavements are encroached upon, pedestrians are compelled towalk on the streets, thereby increasing the risk of trafficaccidents and impeding the free flow of vehicular movement.the municipal commissioner disputes in his counter-affidavitthat any fundamental right of the petitioners is infringedby removal of the encroachment committed by them on publicproperty, especially the pavements. in this behalf, relianceis placed upon an order dated july 27, 1981 of lentin j. ofthe bombay high court, which recordsthat counsel for the
petitioners had stated expressly on july 24, 1981, that nofundamental right could be claimed to put up a dwelling onpublic foot-paths and public roads. the municipal commissioner has stated in his counter-affidavit in writ petitions 5068-79 of 1981 that the hutsnear the western express highway, vile parle, bombay, wereconstructed on an accessory road which is a part of thehighway itself. these hutments were never regularised by thecorporation and no registration numbers were assigned tothem. in answer to the municipal commissioner's counter-affidavit, petitioner no. 12. prafulla chandra bidwai who isa journalist, has filed a rejoinder asserting that kamrajnagar is not located on a foot-path or a pavement. accordingto him, kamraj nagar is a basti off the highway, in whichthe huts are numbered, the record in relation to which ismaintained by the road development department and the bombaymunicipal corporation.contending that petitioners 1 to 5have been residing inthe said basti for over 20 years, hereiterates that the public has no right of way in or overthe kamraj nagar. he also disputes that the huts on thefoot-paths cause any obstruction to the pedestrians or tothe vehicular traffic or that those huts are a source ofnuisance or danger to public health and safety. his case inparagraph 21 of his reply-affidavit seems to be that since,the foot-paths are in the occupationof pavement dwellersfor a long time, foot-paths have ceased to be foot-paths. hesays that the pavement dwellers and the slum or bastidwellers, who number about 47.7 lakhs, constitute about 50per cent of the total population of greater bombay, thatthey supply the major work force69for bombay from menial jobs to the most highly skilled jobs,that they have been living in the hutments for generations,that they have been making a significant contribution to theeconomic life of the city and that, therefore, it is unfairand unreasonable on the part of the state government and themunicipal corporation to destroy their homes and deport them: a home is a home wherever it is. the main theme of thereply-affidavit is that" the slum dwellers are the sine quanon of the city. they are entitled to a quid pro quo. "it isconceded expressly that the petitioners do not claim anyfundamental right to live on the pavements. the rightclaimed by them is the right to live, at least to exist. only two more pleadings need be referred to, one ofwhich is an affidavit of shri anil v. gokak, administratorof maharashtra housing and areas development authority,bombay, who was then holding charge of the post ofsecretary, department of housing. he filed an affidavit inanswer to an application for the modification of an interimorder which was passed by this court on october 19, 1981. he
says that the legislature of maharashtra had passed themaharashtra vacant land (prohibition of unauthorisedoccupation and summary eviction) act, 1975 in pursuance ofwhich the government had decided to compile a list of slumswhich were required to be removed in public interest. it wasalso decided that after a spot inspection, 500 acres ofvacant land in and near the bombay suburban district shouldbe allocated for re-settlement of the hutment dwellers whowere removed from the slums. a task force was constituted bythe government for the purpose of carrying out a census ofthe hutments standing on lands belonging to the governmentof the maharashtra, the bombay municipal corporation and thebombay housing board. a census was, accordingly, carried outon january 4, 1976 by deploying about 7,000 persons toenumerate the slum dwellers spread over approximately 850colonies all over bombay. about 67 per cent of the hutmentdwellers from a total of about 2,60,000 hutments producedphotographs of the heads of their families, on the basis ofwhich hutments were numbered and their occupants were givenidentity cards. it was decided that slums which were inexistence for a long time and which were improved anddeveloped would not normally be demolished unless the landwas required for a public purpose. in the event that theland was so required, the policy of the state government wasto provide alternative accommodation to the slum dwellerswho were censused and possessed identity cards. this isborne out by a circular of the government dated february 4,1976 (no. sis 1176/d. 41). shri gokak says that the stategovernment has70issued instructions directing, inter alia, that "action toremove the slums excepting those which are on the foot-pathsor roads or which are new or casually located should not,therefore, be taken without obtaining approval from thegovernment to the proposal for the removal of such slums andtheir rehabilitation." since, it was never the policy of thegovernment to encourage construction of hutments on foot-paths, pavements or other places over which the public has aright of way, no census of such hutments was ever intendedto be conducted. but, sometime in july 1981, when thegovernment officers made an effort to ascertain themagnitude of the problem of evicting pavement dwellers, itwas discovered that some persons occupying pavements,carried census cards of 1976. the government then decided toallot pitches to such occupants of pavements. the only other pleading which deserves to be noticed isthe affidavit of the journalist petitioner, ms. olga tellis,in reply to the counter-affidavit of the government ofmaharashtra. according to her, one of the important reasonsof the emergence and growth of squatter-settlements in themetropolitan cities in india is, that the development and
master plans of most of the cities have not been adhered to.the density of population in the bombay metropolitan regionis not high according to the town planning standards.difficulties are caused by the fact that the population isnot evenly distributed over the region, in a planned manner.new constructions of commercial premises, small-scaleindustries and entertainment houses in the heart of thecity, have been permitted by the government of maharashtracontrary to law and even residentialpremises have beenallowed to be converted intocommercial premises. this,coupled with the fact that the state government has notshifted its main offices to the northern region of the city,has led to the concentration of the population in thesouthern region due to the availability of job opportunitiesin that region. unless economic and leisure activity isdecentralised, it would be impossible to find a solution tothe problems arising out of the growth of squatter colonies.even if squatters are evicted, they come back to the citybecause, it is there that job opportunities are available.the alternate pitches provided to the displaced pavement-dwellers on the basis of the so-called 1976 census, are notan effective means totheir resettlement because, thosesites are situated far away from the malad railway stationinvolving cost and time which are beyond their means. thereare no facilities available at malavant like schools andhospitals, which drives them back to the stranglehold of thecity. the permission granted to the71'national centre of performing arts' to construct anauditorium at the nariman point, backbay reclamation, iscited as a 'gross' instance of the short-sighted, suicidaland discriminatory policy of the government of maharashtra.it is as if the sea is reclaimed for the construction ofbusiness and entertainment houses in the centre of the city,which creates job opportunities to which the homeless flock.they work therein and live on pavements. the grievance isthat, as a result of this imbalance, there are not enoughjobs available in the northern tip of the city. theimprovement of living conditions in the slums and theregional distribution of job opportunities are the onlyviable remedies for relieving congestion of the populationin the centre of the city. the increase allowed by the stategovernment in the floor space index over and above 1.33, hasled to a further concentration of population in the centreof the city. in the matter of housing, according toms. tellis'affidavit, government has not put to the best use thefinances and resources available to it. there is a wide gapbetween the demand and supply in the area of housing whichwas in the neighbourhood of forty five thousand units in thedecade 1971-81. a huge amount of hundreds of crores of
rupees shall have to be found by the state government everyyear during the period of the sixth plan if adequateprovision for housing is at all to be made. the urban landceiling act has not achieved its desired objective nor hasit been properly implemented. the employment schemes of thestate government are like a drop in the ocean and no stepsare taken for increasing job opportunities in the ruralsector. the neglect of health, education transport andcommunication in that sector drives the rural folk to thecities, not only in search of a living but in search of thebasic amenities of life. the allegation of the stategovernment regarding the criminal propensities of thepavement dwellers is stoutly denied in the reply-affidavitand it is said to be contrary to the studies of manyexperts. finally, it is stated that it is no longer theobjective of the sixth plan to reverse the rate of growth ofmetropolitan cities. the objective of the earlier plan(1978-83) has undergone a significant change and the targetnow is to ensure the growth of large metropolitan cities ina planned manner. the affidavit claims that there isadequate land in the bombay metropolitan region to absorb apopulation of 20 million people, which is expected to bereached by the year 2000 a.d. the arguments advanced before us by ms. indirajaisingh, mr. v.m. tarkunde and mr. ram jethmalani cover awide range but72the main thrust of the petitioners' case is that evicting apavement dweller or slum dweller from his habitat amounts todepriving of his right to livelihood, which is comprehendedin the right guaranteed by article 21 of the constitutionthat no person shall be deprived of his life exceptaccording to procedure established by law. the question ofthe guarantee of personal liberty contained in article 21does not arise and was not raised before us. counsel for thepetitioners contended that the court must determine in thesepetitions the content of the right to life, the function ofproperty in a welfare state, the dimension and true meaningof the constitutional mandate that property must subservecommon good, the sweep of the right to reside and settle inany part of the territory of india which is guaranteed byarticle 19(1)(e) and the right to carry on any occupation,trade or business which is guaranteed by article 19 (1)(g),the competing claims of pavement dwellers on the one handand of the pedestrians on the other and, the larger questionof ensuring equality before the law. it is contended that itis the responsibility of the courts to reduce inequalitiesand social imbalances by striking down statutes whichperpetuate them. one of the grievances of the petitionersagainst the bombay municipal corporation act, 1888 is thatit is a century old antiquated piece of legislation passed
in an era when pavement dwellers and slum dwellers did notexist and the consciousness of the modern notion of awelfare state was not present to the mind of the coloniallegislature. according to the petitioners, connectedwiththese issues and yet independent of them, is the question ofthe role of the court in setting the tone of values in ademocratic society. the argument which bears on the provisions of article21 is elaborated by saying that the eviction of pavement andslum dweller will lead, in a vicious circle, to thedeprivation of their employment, their livelihoodand,therefore, to the right to life. our attention is drawn inthis behalf to an extract from the judgment of douglas j inbaksey v. board of regents, 347 m.d. 442 (1954) in which thelearned judge said:
"the right to work i have assumed was the most precious liberty that man possesses. man has indeed, as much right to work as he has to live, to be free and to own property. to work means to eat and it also means to live."
73the right to live and the right to work are integrated andinterdependent and, therefore, if a person is deprived ofhis job as a result of his eviction from a slum or apavement, his very right to life is put in jeopardy. it isurged that the economic compulsions under which thesepersons are forced tolive in slums or on pavements impartto their occupation the character of a fundamental right. it is further urged by the petitioners that it isconstitutionally impermissible to characterise the pavementdwellers as "trespassers" because, their occupation ofpavements arises from economic compulsions. the state isunder an obligation to provide to the citizens thenecessities of life and, in appropriate cases, the courtshave the power to issue order directing the state, byaffirmative action, to promote and protect the right tolife. the instant situation is one of crisis, which compelsthe use of public property for the purpose of survival andsustenance. social commitment is the quintessence of ourconstitution which defines the conditions under whichliberty has to be enjoyed and justice has to beadministered. therefore, directive principles, which arefundamental in the governance of the country, must serve asa beacon light to the interpretation of the constitutionalprovisions. viewed in this context, it is urged, theimpugned action of the state government and the bombaymunicipal corporation is violative of the provisionscontained in articles 19(1)(e), 19(1)(g) and 21 of theconstitution. the paucity of financial resources of thestate is no excuse for defeating the fundamental rights ofthe citizens.
in support of this argument, reliance is placed by thepetitioners on what is described as the 'factual context'. apublication dated january 1982 of the planning commission,government of india, namely, 'the report of the expert groupof programmes for the alleviation of poverty', is relied onas showing the high incidence of poverty in india. thatreport shows that in 1977-78, 48% of the population livedbelow the poverty line, which means that out of a populationof 303 million who lived below the poverty line, 252 millionbelonged to the rural areas. in 1979-80 another 8 millionpeople from the rural areas were found to live below thepoverty line. a government of maharashtra publication"budget and the new 20 point socio-economic programme"estimates that there are about 45 lakh families in ruralareas of maharashtra who live below the poverty line.another 40% was in the periphery of that area. one of themajor causes of the persistent rural poverty of landlesslabourers,74marginal farmers, shepherds, physically handicapped personsand others is the extremely narrow base of productionavailable to the majority of the rural population. theaverage agricultural holding of a farmer is 0.4 hectares,which is hardly adequate to enable him to make both endsmeet. landlesslabourers have no resource base at all andthey constitute the hard-core of poverty. due to economicpressures and lack ofemployment opportunities, the ruralpopulation is forced to migrate to urban areas in search ofemployment. 'the economic survey of maharashtra' publishedby the state government shows that the bulk of publicinvestment was made in the cities of bombay, pune and thane,which created employment opportunities attracting thestarving rural population to those cities. the slum censusconducted by the government of maharashtra in 1976 showsthat 79% of the slum-dwellers belonged to the low incomegroup with a monthly income below rs.600. the studyconducted by p. ramachandran of the tata institute of socialsciences shows that in 1972,91% of the pavement dwellers hada monthly income of less than rs.200. the cost of obtainingany kind of shelter in bombay is beyond the means of apavement dweller. the principal public housing sectors inmaharashtra, namely, the maharashtra housing and areadevelopment agency (mhada) and the city and industrialdevelopment corporation of maharashtra ltd. (cidco) havebeen able to construct only 3000 and 1000 units respectivelyas against the annualneed of 60,000 units. in any event,the cost of housing provided even by these public sectoragencies is beyond the means of the slum and pavement-dwellers. under the urban land (ceiling and regulation) act1975, private land owners and holders are given facility toprovide housing to the economically weaker sections of the
society at a stipulated price of rs.90 per sq.ft., whichalso is beyond the means of the slum and pavement-dwellers.the reigning market price of houses in bombay varies fromrs.150 per sq.ft. outside bombay to rs.2000 per sq.ft. inthe centre of the city. the petitioners dispute the contention of therespondents regarding the non-availability of vacant landfor allotment to houseless persons. according to them, about20,000 hectares of unencumbered land is lying vacant inbombay. the urban land (ceiling and regulation) act,1975 hasfailed to achieve its object as is evident from the factthat in bombay, 5% of the land-holders own 55% of the land.even though 2952.83 hectares of urban land is available forbeing acquired by the state government as being in excess ofthe permissible ceiling area, only 41.51% of this excessland was, so far, acquired. thus, the75reason why there are homeless people in bombay is not thatthere is no land on which homes can be built for them but,that the planning policy of the state government permitshigh density areas to develop with vast tracts of land lyingvacant. the pavement-dwellers and the slum-dwellers whoconstitute 50% of the population of bombay, occupy only 25%of the city's residential land. it is in these circumstancesthat out of sheer necessity for a bare existence, thepetitioners are driven to occupy the pavements and slums.they live in bombay because they are employed in bombay andthey live on pavements because there is no other place wherethey can live. this is the factual context in which thepetitioners claim the right under articles 19(1)(e) and (g)and article 21 of the constitution. the petitioners challenge the vires of section 314 readwith sections 312 and 313 of the bombay municipalcorporation act, which empowers the municipal commissionerto remove, without notice, any object or structure orfixture which is set up in or upon any street. it iscontended that, in the first place, section 314 does notauthorise the demolition of a dwelling even on a pavementand secondly, that a provision which allows the demolitionof a dwelling without notice is not just, fair orreasonable. such a provision vests arbitrary and unguidedpower in the commissioner. it also offends against theguarantee of equality because, it makes an unjustifieddiscrimination between pavement dwellers on the one hand andpedestrians on the other. if the pedestrians are entitled touse the pavements for passing and repassing, so are thepavement dwellers entitled to use pavements for dwellingupon them. so the argument goes. apart from this, it isurged, the restrictions which are sought to be imposed bythe respondents on the use of pavements by pavement-dwellersare not reasonable. a state which has failed in its
constitutional obligation to usher a socialistic society hasno right to evict slum and pavement-dwellers who constitutehalf of the city's population. therefore, sections 312,313and 314 of the b.m.c. act must either be read down or struckdown. according to the learned attorney-general, mr.k.k.singhvi and mr. shankaranarayanan who appear for therespondents, no one has a fundamental right, whatever be thecompulsion, tosquat on or construct a dwelling on apavement, public road or any other place to which the publichas a right of access. the right conferred by article19(1)(e) of the constitution to reside and settle in anypart of india cannot be read to confer a licence to encroachand trespass upon public property. sections 3(w) and76(x) of the b.m.c. act define "street" and "public street" toinclude a highway, a footway or a passage on which thepublic has the right of passage or access. under section289(1) of the act, all pavements and public streets vest inthe corporation and are under the control of thecommissioner. in so far as article 21 is concerned, nodeprivation of life, either directly or indirectly, isinvolved in the eviction of the slum and pavement-dwellersfrom public places. the municipal corporation is under anobligation under section 314 of the b.m.c. act to removeobstructions on pavements, public streets and other publicplaces. the corporation does not even possess the power topermit any person to occupy a pavement or a public place ona permanent or quasi-permanent basis. the petitioners havenot only violated the provisions of the b.m.c. act, but theyhave contravened sections 111 and 115 of the bombay policeact also. these sections prevent a person from obstructingany other person in the latter's use of a street or publicplace or from committing a nuisance. section 117 of thepolice act prescribes punishment for the violation of thesesections. we will first deal with the preliminary objectionraised by mr. k.k.singhvi, who appears on behalf of thebombay municipal corporation, that the petitioners areestopped from contending that their huts cannot bedemolished by reason of the fundamental rights claimed bythem. it appears that a writ petition, no. 986 of 1981, wasfiled on the original side of the bombay high court by andon behalf of the pavement dwellers claiming reliefs similarto those claimed in the instant batch of writ petitions. alearned single judge granted an ad-interim injunctionrestraining the respondents from demolishing the huts andfrom evicting the pavement dwellers. when the petition cameup for hearing on july 27, 1981, counsel for the petitionersmade a statement in answer to a query from the court, thatno fundamental right could be claimed to put up dwellings on
foot-paths or public roads. upon this statement, respondentsagreed not to demolish until october 15, 1981, huts whichwere constructed on the pavements or public roads prior tojuly 23,1981. on august 4, 1981, a written undertaking wasgiven by the petitioners agreeing, inter alia, to vacate thehuts on or before october 15, 1981 and not to obstruct thepublic authorities from demolishing them. counsel appearingfor the state of maharashtra responded to the petitioners'undertaking by giving an undertaking on behalf of the stategovernment that, until october 15, 1981, no pavement dwellerwill be removed out of the city against his wish. on thebasis of these undertakings, the learned judge disposed ofthe77writ petition without passing any further orders. thecontention of the bombay municipal corporation is that sincethe pavement dwellers had conceded in the high court thatthey did not claim any fundamental right to put up huts onpavements or public roads and since they had given anundertaking to the high court that they will not obstructthe demolition of the huts after october 15, 1981 they areestopped from contending in this court that the hutsconstructed bythem on the pavements cannot be demolishedbecause of their right to livelihood, which is comprehendedwithin the fundamental right to life guaranteed by article21 of the constitution. it is not possible to accept the contention that thepetitioners are estopped from setting up their fundamentalrights as a defence to the demolition of the huts put up bythem on pavements or parts of public roads. there can be noestoppel against the constitution. the constitution is notonly the paramount law of the land but, it is the source andsubstance of all laws. its provisions are conceived inpublic interest and are intended to serve a public purpose.the doctrine of estoppel is based on the principle thatconsistency in word and action imparts certainty and honestyto human affairs. if a person makes a representation toanother, on the faith of which the latter acts to hisprejudice, the former cannot resile from the representationmade by him. he must make it good. this principle can haveno application to representations made regarding theassertion or enforcement of fundamental rights. for example,the concession made by a person that he does not possess andwould not exercise his right to free speech and expressionor the right to move freely throughout the territory ofindia cannot deprive him of those constitutional rights, anymore than a concession that a person has no right ofpersonal liberty can justify his detention contrary to theterms of article 22 of the constitution. fundamental rightsare undoubtedly conferred by the constitution uponindividuals which have to be asserted and enforced by them,
if those rights are violated. but, the high purpose whichthe constitution seeks to achieve by conferment offundamental rights is not only to benefit individuals but tosecure the larger interests of the community. the preambleof the constitution says that india is a democraticrepublic. it is in order to fulfil the promise of thepreamble that fundamental rights are conferred by theconstitution, some on citizens like those guaranteed byarticles 15,16,19,21 and 29, and some on citizens and non-citizens alike, like those guaranteed by articles7814,21,22 and 25 of the constitution. no individual canbarter away the freedoms conferred upon him by theconstitution. a concession made by him in a proceeding,whether under a mistake of law or otherwise, that he doesnot possess or will not enforce any particular fundamentalright, cannot create an estoppel against him in that or anysubsequent proceeding. such a concession, if enforced, woulddefeat the purpose of the constitution. were the argument ofestoppel valid, an all-powerful state could easily tempt anindividual to forego his precious personal freedoms onpromise of transitory, immediate benefits. therefore,notwithstanding the fact that the petitioners had concededin the bombay high court that they have no fundamental rightto construct hutments on pavements and that they will notobject to their demolition after october 15, 1981, they areentitled to assert that any such action on the part ofpublic authorities will be in violation of their fundamentalrights. how far the argument regarding the existence andscope of the right claimed by the petitioners is well-founded is another matter. but, the argument has to beexamined despite the concession. the plea of estoppel is closely connected with the pleaof waiver, the object of both being to ensure bona fides inday-today transactions. in basheshar nath v. thecommissioner of income tax delhi, [1959] supp. 1 s.c.r. 528a constitution bench of this court considered the questionwhether the fundamental rights conferred by the constitutioncan be waived. two members of the bench (das c.j. and kapoorj.) held that there can be no waiver of the fundamentalright founded on article 14 of the constitution. two others(n.h.bhagwati and subba rao,jj.) held that not only couldthere be no waiver of the right conferred by article 14, butthere could be no waiver of any other fundamental rightguaranteed by part iii of the constitution. the constitutionmakes no distinction, according to the learned judges,between fundamental rights enacted for the benefit of anindividual and those enacted in public interest or ongrounds of public policy. we must, therefore, reject the preliminary objectionand proceed to consider the validityof the petitioners'
contentions on merits. the scope of the jurisdiction of this court to dealwith writ petitions under article 32 of the constitution wasexamined by a special bench of this court in smt. ujjam baiv. state of uttar pradesh. [1963] 1 s.c.r. 778. thatdecision would79show that, in three classes of cases, the question ofenforcement of the fundamental rights would arise, namely,(1) where action is taken under a statute which is ultravires the constitution ; (2) where the statute is intravires but the action taken is without jurisdiction; and (3)an authority under an obligation to act judicially passes anorder in violation of the principles of natural justice.these categories are, of course, not exhaustive. in nareshshridhar mirajkar v. state of maharashtra, [1966] 3 s.c.r.744-770, a special bench of nine learned judges of thiscourt held that, where the action taken against a citizen isprocedurally ultra vires, the aggrieved party can move thiscourt under article 32. the contention of the petitioners isthat the procedure prescribed by section 314 of the b.m.c.act being arbitrary and unfair, it is not "procedureestablished by law" within the meaning of article 21 and,therefore, they cannot be deprived of their fundamentalright to life by resorting to that procedure. the petitionsare clearly maintainable under article 32 of theconstitution. as we have stated while summing up the petitioners'case, the main plank of their argument is that the right tolife which is guaranteed by article 21 includes the right tolivelihood and since, they will be deprived of theirlivelihood if they are evicted from their slum and pavementdwellings, their eviction is tantamount to deprivation oftheir life and is hence unconstitutional. for purposes ofargument, we will assume the factual correctness of thepremise that if the petitioners are evicted from theirdwellings, they will be deprived of their livelihood. uponthat assumption, the question which we have to consider iswhether the right to life includes the right to livelihood.we seeonly one answer to that question, namely, that itdoes. the sweep of the right to life conferred by article 21is wide and far reaching. it does not mean merely that lifecannot be extinguished or taken away as, for example, by theimposition andexecution of the death sentence, exceptaccording to procedure established by law. that is but oneaspect of the right to life. an equally important facet ofthat right is the right to livelihood because, no person canlive without the means of living, that is, the means oflivelihood. if the right to livelihood is not treated as apart of the constitutional right to life, the easiest way ofdepriving a person his right to life would be to deprive him
of his means of livelihood to the point of abrogation. suchdeprivation would not only denude the life of its effectivecontent and meaningfulness but it would make life impossibleto live. and yet, such deprivation would not have to80be in accordance with the procedure established by law, ifthe right to livelihood is not regarded as a part of theright to life. that, which alone makes it possible to live,leave aside what makes life livable, must be deemed to be anintegral component of the right to life. deprive a person ofhis right to livelihood and you shall have deprived him ofhis life. indeed, that explains the massive migration of therural population to big cities. they migrate because theyhave no means of livelihood in the villages. the motiveforce which people their desertion of their hearths andhomes in the village s that struggle for survival, that is,the struggle for life. so unimpeachable is the evidence ofthe nexus between life and the means of livelihood. theyhave to eat to live: only a handful can afford the luxury ofliving to eat. that they can do, namely, eat, only if theyhave the means of livelihood. that is the context in whichit was said by douglas j. in baksey that the right to workis the most preciousliberty because, it sustains andenables a man to live and the right to life is a preciousfreedom. "life", as observed by field, j. in munn v.illinois, (1877) 94 u.s. 113, means something more than mereanimal existence and the inhibition against the deprivationof life extends to all those limits and faculties by whichlife is enjoyed. this observation was quoted with approvalby this court in kharak singh v. the state of u.p., [1964] 1s.c.r. 332. article 39(a) of the constitution, which is a directiveprinciple of state policy, provides that the state shall, inparticular, direct its policy towards securing that thecitizens, men and women equally, have the right to anadequate means of livelihood. article 41, which is anotherdirective principle, provides, inter alia, that the stateshall, within the limits of its economic capacity anddevelopment, make effective provision for securing the rightto work in cases of unemployment and of undeserved want.article 37 provides that the directive principles, thoughnot enforceable by any court, are nevertheless fundamentalin the governance of the country. the principles containedin articles 39 (a) and 41 must be regarded as equallyfundamental in the understanding and interpretation of themeaning and content of fundamental rights. if there is anobligation upon the state to secure to the citizens anadequate means of livelihood and the right to work, it wouldbe sheer pedantry to exclude the right to livelihood fromthe content of the right to life. the state may not, byaffirmative action, be compellable to provide adequate means
of livelihood or work to the citizens. but, any person, whois deprived of his right to livelihood81except according to just and fair procedure established bylaw, can challenge the deprivation as offending the right tolife conferred by article 21. learned counsel for the respondents placed strongreliance on a decision of this court in in re: sant ram,[1960] 3 s.c.r. 499, in support of their contention that theright to life guaranteed by article 21 does not include theright to livelihood. rule 24 of the supreme court rulesempowers the registrar to publish lists of persons who areproved to be habitually acting as touts. the registrarissued a notice to the appellant and one other person toshow cause why their names should not be included in thelist of touts. that notice was challenged by the appellanton the ground, inter alia, that it contravenes article 21 ofthe constitution since, by the inclusion of his name in thelist of touts, he was deprived of his right to livelihood,which is included in the right to life. it was held by aconstitution bench of this court that the language ofarticle 21 cannot be pressed in aid of the argument that theword `life' in article 21 includes `livelihood' also. thisdecision is distinguishable because, under the constitution,no person can claim the right to livelihood by the pursuitof an opprobrious occupation or a nefarious trade orbusiness, like tourism, gambling or living on the gains ofprostitution. the petitioners before us do not claim theright to dwell on pavements or in slums for the purpose ofpursuing any activity which is illegal, immoral or contraryto public interest. many of them pursue occupations whichare humble but honourable. turning to the factual situation, how far is it true tosay that if the petitioners are evicted from their slum andpavement dwellings, they will be deprived of their means oflivelihood? it is impossible, in the very nature of things,together reliable data on this subject in regard to eachindividual petitioner and, none has been furnished to us inthat form. that the eviction of a person from a pavement orslum will inevitably lead to the deprivation of his means oflivelihood, is a proposition which does not have to beestablished in each individual case. that is an inferencewhich can be drawn from acceptable data. issues of generalpublic importance, which affect the lives of large sectionsof the society, defy a just determination if theirconsideration is limited to the evidence pertaining tospecific individuals. in the resolution of such issues,there are no symbolic samples which can effectively projecta true picture of82the grim realities of life. the writ petitions before us
undoubtedly involve a question relating to dwelling housesbut, they cannot be equated with a suit for the possessionof a house by one private person against another. in a caseof the latter kind, evidence has to be led to establish thecause of action and justify the claim. in a matter like theone before us, in which the future of half of the city'spopulation is at stake, the court must consult authenticempirical data compiled by agencies, official and non-official. it is by that process that the core of the problemcan be reached and a satisfactory solution found. it wouldbe unrealistic on our part to reject the petitions on theground that the petitioners have notadduced evidence toshow that they will be rendered jobless if they are evictedfrom the slums and pavements. commonsense, which is acluster of life's experiences, is often more dependable thanthe rival facts presented by warring litigants. it is clear from the various expert studies to which wehave referred while setting out the substance of thepleadings that, one of the main reasons of the emergence andgrowth of squatter-settlements in big metropolitan citieslike bombay, is the availability of job opportunities whichare lacking in the rural sector. the undisputed fact thateven after eviction, the squatters return to the citiesaffords proof of that position. the planning commission'spublication, `the report of the expert group of programmesfor the alleviation of poverty' (1982) shows that half ofthe population in india lives below the poverty line, alarge part of which lives in villages. a publication of thegovernment of maharashtra, `budget and the new 20 pointsocio-economic programme' shows that about 45 lakhs offamilies in rural areas live below the poverty line andthat, the average agricultrual holding of a farmer, which is0.4 hectares, is hardly enough to sustain him and hiscomparatively large family. the landless labourers, whoconstitute the bulk of the village population, are deeplyimbedded in the mire of poverty. it is due to these economicpressures that the rural population is forced to migrate tourban areas in search of employment. the affluent and thenot-so-affluent are alike in search of domestic servants.industrial and business houses pay a fair wage to theskilled workman that a villager becomes in course of time.having found a job, even if it means washing the pots andpans, the migrant sticks to the big city. if driven out, hereturns in quest of another job. the cost of public sectorhousing is beyond his modest means and the less we refer tothe deals of private builders the better for all; excludingnone. added to83these factors is the stark reality of growing insecurity invillages on account of the tyranny of parochialism andcasteism. the announcement made by the maharashtra chief
minister regarding the deportation of willing pavementdwellers afford some indication that they are migrants fromthe interior areas, within and outside maharashtra. it isestimated that about 200 to 300 people enter bombay everyday in search of employment. these facts constituteempirical evidence to justify the conclusion that persons inthe position of petitioners live in slums and on pavementsbecause they have small jobs to nurse in the city and thereis no where else to live. evidently, they choose a pavementor a slum in the vicinity of their place of work, the timeotherwise taken in commuting and its cost being forbiddingfor their slender means. to loss the pavement or the slum isto lose the job. the conclusion, therefore in terms of theconstitutional phraseology is that the eviction of thepetitioners will lead to deprivation of their livelihood andconsequently to the deprivation of life. two conclusions emerge from this discussion: one, thatthe right to life which is conferred by article 21 includesthe right to livelihood and two, that it is established thatif the petitioners are evicted from their dwellings, theywill be deprived of their livelihood. but the constitutiondoes not put an absolute embargo on the deprivation of lifeor personal liberty. by article 21, such deprivation has tobe according to procedure established by law. in the instantcase, the law which allows the deprivation of the rightconferred by article 21 is the bombay municipal corporationact, 1888, the relevant provisions of which are contained insections 312(1),313(1)(a) and 314. these sections whichoccur in chapter xi entitled `regulation of streets' readthus : section 312 - prohibition of structures or fixtures
which cause obstruction in streets. (1) no person shall, except with the permission of the commissioner under section 310 or 317 arect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, drain well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion or such street, channel, drain, well or tank".
84 "section 313 - prohibition of deposit, etc., of things
in streets. (1) no person shall, except with the written permission of the commissioner, - (a) place or deposit upon any street or upon any open channel drain or well in any streets (or in any public place) any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or encroachment thereon."
"section 314 - power to remove without notice anything erected deposited or hawked in contravention of section 312,313 or 313 a.
the commissioner may, without notice, cause to be removed - (a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or any street, or upon or over any open channel, drain, well or tank contrary to the provisions of subsection (1) of section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the bombay municipal (extension of limits) act, 1950 or in the extended suburbs after the date of the coming into force of the bombay municipal further extension of limits and schedule bba (amendment) act, 1956; (b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in, upon, from or to any place in contravention of sub-section (1) of section 313; (c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313a and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale."
by section 3(w), "street" includes a causeway, footway,passage etc., over which the public have a right of passageor access.85 these provisions, which are clear and specific, empowerthe municipal commissioner to cause to be removedencroachments on footpaths or pavements over which thepublic have a right of passage or access. it is undeniablethat, in these cases, wherever constructions have been putup on the pavements, the public have a right of passage oraccess over those pavements. the argument of the petitionersis that the procedureprescribed by section 314 for theremoval of encroachments from pavements is arbitrary andunreasonable since, not only does it not provide for thegiving of a notice before the removal of an encroachmentbut, it provides expressly that the municipal commissionermay cause the encroachment to be removed "without notice". it is far too well-settled to admit of any argumentthat the procedure prescribed by law for the deprivation ofthe right conferred by article 21 must be fair, just andreasonable. (see e.p.royappa v. state of tamil nadu, [1974]2 s.c.r. 348; maneka gandhi v. union of india, [1978] 2
s.c.r. 621; m.o.hoscot v. state of maharashtra, [1979] 1s.c.r. 192; sunil batra, i v. delhi administration, [1979] 1s.c.r. 392; sita ram v. state of u.p., [1979] 2 s.c.r. 1085;hussainara khatoon, i v. home secretary, state of bihar,patna, [1979] 3 s.c.r. 532,537; hussainara khatoon, ii v.home secretary, state of bihar, patna, [1980] 1 s.c.c. 81;sunil batra, ii v. delhi administration, [1980] 2 s.c.r.557; jolly george verghese v. the bank of cochin, [1980] 2s.c.r. 913,921-922; kasturi lal lakshmi keddy v. state ofjammu & kashmir, [1980] 3 s.c.r. 1338,1356; and franciscoralie mullin v. the administrator, union territory ofdelhi, [1981] 2 s.c.r. 516,523-24.) just as a mala fide act has no existence in the eye oflaw, even so, unreasonableness vitiates law and procedurealike. it is therefore essential that the procedureprescribed by law for depriving a person of his fundamentalright, in this case the right to life, must confirm to thenorms of justice and fairplay. procedure, which is unjust orunfair in the circumstances of a case, attracts the vice ofunreasonableness, thereby vitiating the law which prescribesthat procedureand consequently, the action taken under it.any action taken by a public authority which is investedwith statutory powers has, therefore, to be tested by theapplication of two standards: the action must be within thescope of the authority conferred by law and secondly, itmust be reasonable. if any action, within the scope of theauthority conferred by law, is found to be unreasonable itmust mean that the procedure established by law under whichthat86action is taken is itself unreasonable. the substance of thelaw cannot be divorced from the procedure which it prescribefor, how reasonable the law is, depends upon how fair is theprocedure prescribed by it, sir raymond evershad says that,from the point of view of the ordinary citizen, it is theprocedure thatwill most strongly weigh with him. he willtend to form his judgment of the excellence or otherwise ofthe legal system from his personal knowledge and experiencein seeing the legal machine at work", [`the influence ofremedies on rights' (current legal problems 1953, volume6.)]. therefore, he that takes the procedural sword shallperish with the sword. "[per frankfurter j. in viteralli v.seton 3 l.ed. (2nd series) 1012] justice k.k.mathew points out in his article on `thewelfare state, rule of law and natural justice', which is tobe found in his book `democracy, equality and freedom', thatthere is "substantial agreement in juristic thought that thegreat purpose of the rule of law notion is the protection ofthe individual against arbitrary exercise of power whereverit is found". adopting that formulation, bhagwati j.,speaking for the court, observed in ramana dayaram, shetty
v. the international airport authority of india, [1979] 3s.c.r. 1014,1032 that it is "unthinkable that in a democracygoverned by the rule of law, the executive government or anyof its officers should possess arbitrary power over theinterest of the individual. every action of the executivegovernment must be informed with reason and should be freefrom arbitrariness. that is the very essence of the rule oflaw and its bare minimal requirement". having given our anxious and solicitous considerationto this question, we are of the opinion that the procedureprescribed by section 314 of the bombay municipalcorporation act for removal of encroachments on thefootpaths or pavements over which the public has the rightof passage or access, cannot be regarded as unreasonable,unfair or unjust. there is no static measure ofreasonableness which can be applied to all situations alike.indeed, the question "is this procedure reasonables impliesand postulatesthe inquiry as to whether the procedureprescribed is reasonable in the circumstances of the case,in francis coralie mullin, [1981] 2 s.c.r. 516, bhagwati,j.,said :
"... ... it is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given
87 case is by procedure, which is reasonable, fair and just or it is otherwise." (emphasis supplied, page 524).
in the first place, footpaths or pavements are publicproperties which are intended to serve the convenience ofthe general public. they are not laid for private use andindeed, their use for a private purpose frustrates the veryobject for which they are carved out from portions of publicstreets. the main reason for laying out pavements is toensure that the pedestrians are able to go about their dailyaffairs with a reasonable measure of safety and security.that facility, which has matured into a right of thepedestrians, cannot be set at naught by allowingencroachments to be made on the pavements. there is nosubstance in the argument advanced on behalf of thepetitioners that the claim of the pavement dwellers to putup constructions on pavements and that of the pedestrians tomake use of the pavements for passing and repassing, arecompeting claims and that the former should be preferred tothe latter. no one has the right to make use of a publicproperty for a private purpose without the requisiteauthorisation and, therefore, it is erroneous to contendthat the pavement dwellers have the right to encroach uponpavement by constructing dwellings thereon. public streets,of which pavements form a part, are primarily dedicated for
the purpose of passage and, even the pedestrians have butthe limited right of using pavementsfor the purpose ofpassing and repassing. so long as a person does nottransgress the limited purpose for which pavements are made,his use thereof is legitimate and lawful. but, if a personputs any public property to a use for which it is notintended and is not intended and is not authorised so to useit, he becomes a trespasser. the common example which iscited in some of the english cases (see, for example,hickman v. maisey, [1900] 1 q.b. 752, is that if a person,while using a highway for passage, sits down for a time torest himself by the side of the road, he does not commit atrespass. but, if a person puts up a dwelling on thepavement, whatever may be the economic compulsions behindsuch an act, his user of the pavement would becomeunauthorised. as stated in hickman, it is not easy to drawan exact line between the legitimate user of a highway as ahighway and the user which goes beyond the right conferredupon the public by its dedication. but, as in many othercases, it is not difficult to put cases well on one side ofthe line. putting up a dwelling on the pavement is a casewhich is clearly on one side of the line showing that it isan act of trespass. section 61 of the bombay municipalcorporation act lays down the obligatory88duties of the corporation, under clause (d) of which, it isits duty to take measures for abetment of all nuisances. theexistence of dwellings on the pavements is unquestionably asource of nuisance tothe public, at least for the reasonthat they are denied the use of pavements for passing andrepassing. they are compelled, by reason of the occupationof pavements by dwellers, to use highways and public streetsas passages. the affidavit filed on behalf of thecorporation shows that the fall-out of pedestrians in largenumbers on highways and streets constitutes a grave traffichazard. surely, pedestrians deserve consideration in thematter of their physical safety, which cannot be sacrificedin order to accommodate persons who use public propertiesfor a private purpose, unauthorizedly. under clause (c) ofsection 61 of the b.m.c. act, the corporation is under anobligation to remove obstructions upon public streetsanother public places. the counter-affidavit of thecorporation shows that the existence of hutments onpavements is a serious impediment inrepairing the roads,pavements, drains and streets. section 63(k), which isdiscretionary, empowers the corporation to take measures topromote public safety, health or convenience notspecifically provided otherwise. since it is not possible toprovide any public conveniences to the pavement dwellers onor near the pavements, they answer the nature's call on thepavements or on the streets adjoining them. these facts
provide the background to the provision for removal ofencroachments on pavements and footpaths. the challenge of the petitioners to the validity of therelevant provisions of the bombay municipal corporation actis directed principally at the procedure prescribed bysection 314 of that act, which provides by clause (a) thatthe commissioner may, without notice, take steps for theremoval of encroachments in or upon ay street, channel,drain, etc. by reason of section 3(w), `street' includes acauseway, footway or passage. in order to decide whether theprocedure prescribed by section 314 is fair and reasonable,we must first determine the true meaning of that sectionbecause, the meaning of the law determines its legality. ifa law is found to direct the doing of an act which isforbidden by the constitution or to compel, in theperformance of an act, the adoption of a procedure which isimpermissible under the constitution, it would have to bestruck down. considered in its proper perspective, section314 is in the nature of an enabling provision and not of acompulsive character. it enables the commissioner, inappropriate cases, to dispense with previous notice topersons who are likely to be affected by the proposed89action. it does not require and, cannot be read to meanthat, in total disregard of the relevant circumstancespertaining to a given situation, the commissioner must causethe removal of an encroachment without issuing previousnotice. the primary rule of construction is that thelanguage of the law must receive its plain and naturalmeaning. what section 314 provides is that the commissionermay, without notice, cause an encroachment to be removed. itdoes not command that the commissioner shall, withoutnotice, cause an encroachment to be removed. putting itdifferently, section 314 confers on the commissioner thediscretion to cause an encroachment to be removed with orwithout notice. that discretion has to be exercised in areasonable manner so as to comply with the constitutionalmandate that the procedure accompanying the performance of apublic act must be fair and reasonable. we must lean infavour of this interpretation because it helps sustain thevalidity of the law. reading section 314 as containing acommand not to issue notice before the removal of anencroachment will make the law invalid. it must further be presumed that, while vesting in thecommissioner the power toact without notice, thelegislature intended that the power should be exercisedsparingly and in cases of urgency which brook no delay. inall other cases, no departure from the audi alteram partemrule ('hear the other side') could be presumed to have beenintended. section 314 is so designed as to exclude theprinciples of natural justice by way of exemption and not as
a general rule. there are situations which demand theexclusion of the rules of natural justice by reason ofdiverse factors like time, place the apprehended danger andso on. the ordinary rule which regulates all procedure isthat persons who are likely to be affected by the proposedaction must be afforded an opportunity of being heard as towhy that action should not be taken. the hearing may begiven individually or collectively, depending upon the factsof each situation. a departure from this fundamental rule ofnatural justice may be presumed to have been intended by thelegislature only in circumstances which warrant it. suchcircumstances must be shown to exist, when so required, theburden being upon those who affirm their existence. it was urged by shri k.k.singhvi on behalf of themunicipal corporation that the legislature may well haveintended that no notice need be given in any case whatsoeverbecause, no useful purpose could be served by issuing anotice as to why an encroachment on a public property shouldnot be removed. we have indicated above that far from sointending, the legislature has left90it to the discretion of the commissioner whether or not togive notice, a discretion which has to be exercisedreasonably. counsel attempted to demonstrate the practicalfutility of issuing the show cause notice by pointing outfirstly, that the only answer which a pavement dweller, forexample, can make to such a notice is that he is compelledto live on the pavement because he has no other place to goto and secondly, that it is hardly likely that in pursuanceof such a notice, pavement dwellers or slum dwellers wouldask for time to vacate since, on their own showing, they arecompelled to occupy some pavement or slum or the other ifthey are evicted. it may be true to say that, in thegenerality of cases, persons who have committedencroachments on pavements or on other public properties maynot have an effective answer to give. it is a notorious factof contemporary life in metropolitan cities, that no personin his senses would opt to live on a pavement or in a slum,if any other choice were available to him. anyone who caresto have even a fleeting glance at the pavement or slumdwellings will see that they are the very hell on earth.but, though this is so, the contention of the corporationthat no notice need be givenbecause, there can be noeffective answer to it, betrays a misunderstanding of therule of hearing, which is an important element of theprinciples of natural justice. the decision to dispense withnotice cannot be founded upon a presumed impregnability ofthe proposed action. for example, in the common run ofcases, a person may contend in answer to a notice undersection 314 that (i) there was, in fact, no encroachment onany public road, footpath or pavement, or (ii) the
encroachment was so slight and negligible as to cause nonuisance or inconvenience to other members of the public, or(iii) time may be granted for removal of the encroachment inview of humane consideration arising out of personal,seasonal or other factors. it would not be right to assumethat the commissioner would reject these or similar otherconsiderations without a careful application of mind. humancompassion must soften the rough edges of justice in allsituation. the eviction of the pavement or slum dweller notonly means his removal from the house but the destruction ofthe house itself. and the destruction of a dwelling house isthe end of all that one holds dear in life. humbler thedwelling, greater the suffering and more intense the senseof loss. the proposition that notice need not be given of aproposed action because, there can possibly be no answer toit, is contrary to the well-recognized understanding of thereal import of the rule of hearing. that propositionoverlooks that justice must91not only be done but must manifestly be seen to be done andconfuses one for the other. the appearance of injustice isthe denial of justice. it is the dialogue with the personlikely to be affected by the proposed action which meets therequirement that justice must also be seen to be done.procedural safeguards have their historical origins in thenotion that conditions of personal freedom can be preservedonly when there is some institutional check on arbitraryaction on the part of public authorities. (kadish,"methodology and criteria in due process adjudication - asurvey and criticism," 66 yale l.j. 319,340 [1957]. theright to be heard has two facets, intrinsic andinstrumental. the intrinsic value of that right consists inthe opportunity which it gives to individuals or groups,against whom decision taken by public authorities operate,to participate in the processes by which those decisions aremade, an opportunity that expresses their dignity aspersons. (golberg v. kelly, 397 u.s. 254, 264-65 [1970]right of the poor to participate in public processes).
"whatever its outcome, such a hearing represents a valued human interaction in which the affected person experience at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to inter change express the elementary idea that to be a person, rather than a thing is at least to be
consulted about what is done with one. justice frankfurter captured part of this sense of procedural justice when he wrote that the "validity and moral authority of a conclusion largely depend on the mode by which it was reached......... no better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. nor has a better way been found for generation the feeling, so important to a popular government, that justice has been done". joint anti-fascist refugee committee v. mc grath, 341, u.s. 123, 171- 172 (1951). at stake here is not just the much- acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice", (see american
92 constitutional law" by laurence h. tribe, professor of law, harvard university (ed. 1978, page 503).
the instrumental facet of the right of hearing consists inthe means which it affords of assuring that the public rulesof conduct, which result in benefits and prejudices alike,are in fact accurately and consistently followed.
"it ensures that a challenged action accurately reflects the substantive rules applicable to such action; its point is less to assure participation than to use participation to assure accuracy."
any discussion of this topic would be incompletewithout reference to an important decision of this court ins.l. kapoor v. jagmohan, [1981] 1 s.c.r. 746,766. in thatcase, the suppression of the new delhi municipal committeewas challenged on the ground that it was in violation of theprinciples of natural justice since, no show cause noticewas issued before the order of suppression was passed.linked with that question was the question whether thefailure to observe the principles of natural justice mattersat all, if such observance would have made no difference,the admitted or indisputable facts speaking for themselves.after referring to the decisions in ridge v. baldwin, [1964]a.c.40 at 68; john v. reeas, [1970] 1 chancery 345 at 402;annamuthodo v. oil fields workers' trade union,[1961] 3 alle.r. 621 (h.l.) at 625; margarita fuentes at al. v. tobertl.shevin, 32 l.ed. 2d 556 at 574; chintepalli agency talukarrack sales cooperative society ltd. v. secretary (food &agriculture) government of anadhra pradesh, [1978] 1 s.c.r.563 at 567,569-570, and to an interesting discussion of thesubject in jackson's natural justice (1980 edn.) the court,speaking through one of us, chinnappa reddy, j. said:
"in our view the principles of natural justice know of no exclusionary rule dependent on whether it would have madeany difference if natural justice had been observed. the non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. it will comes from a person who has denied justice that the person who has been denied justice is not prejudiced."
these observations sum up the true legal position regardingthe purport and implications of the right of hearing.93 the jurisprudence requiring hearing to be given tothose who have encroached on pavements and other publicproperties evoked a sharp response from the respondentscounsel. "hearing to be given to trespassers who haveencroached on public properties? to persons who commitcrimes?" they seemed to ask in wonderment. there is no doubtthat the petitioners are using pavements and other publicproperties for an unauthorised purpose. but, their intentionor object in doing so is not to "commit an offence orintimidate, insult or annoy any person", which is the gistof the offence of 'criminal trespass' under section 441 ofthe penal code. they manage to find a habitat in placeswhich are mostly filthy or marshy, out of sheerhelplessness. it is not as if they have a free choice toexercise as to whether to commit an encroachment and if so,where. the encroachments committed by these persons areinvoluntary acts in the sense that those acts are compelledby inevitable circumstances and are not guided by choice.trespass is a tort. but, even the law of torts requires thatthough a trespasser may be evicted forcibly, the force usedmust be no greater than what is reasonable and appropriateto the occasion and, what is even more important, thetrespasser should be asked and given a reasonableopportunity to depart before force is used to expel him.(see ramaswamy iyer's 'law of torts' 7th ed. by justice andmrs. s. k. desai, (page 98, para 41). besides, under the lawof torts, necessity is a plausible defence, which enables aperson to escape liability on the ground that the actscomplained of are necessary to prevent greater damage, interalia, to himself. "here, as elsewhere in the law of torts, abalance has to be struck between competing sets of values............ " (see salmond and heuston, 'law of torts',18th ed. (chapter 21, page 463, article 185-'necessity'). the charge made by the state government in itsaffidavit that slum and pavement dwellers exhibit especialcriminal tendencies is unfounded. according to dr.p.k.muttagi, head of the unit for urban studies of the tatainstitute of social sciences, bombay, the surveys carried
out in 1972, 1977,1979 and 1981 show that many familieswhich have chosen the bombay footpaths just for survival,have been living there for several years and that 53 percent of the pavement dwellers are self-employed as hawkersin vegetables, flowers, ice-cream, toys, balloons, buttons,needles and so on. over 38 per cent are in the wage-employedcategory as casual labourers, construction workers, domesticservants and luggage carriers. only 1.7 per cent of thetotal number is generally unemployed. dr. muttagi foundamong the pavement dwellers a94graduate of marathwada university and muslim post of somestanding. "these people have merged with the landscape,become part of it, like the chameleon", though their contactwith their more fortunate neighbours who live in adjoininghigh-rise buildings is casual. the most important finding ofdr. muttagi is that the pavement dwellers are a peacefullot, "for, they stand to lose their shelter on the pavementif they disturb the affluent or indulge in fights with theirfellow dwellers". the charge of the state government,besides being contrary to these scientific findings, is bornof prejudice against the poor and the destitute. affluentpeople living in sky-scrapers also commit crimes varyingfrom living on the gains of prostitution and defrauding thepublic treasury to smuggling. but, they get away. thepavement dwellers, when caught, defend themselves by asking,"who does not commit crimes in this city ? as observed byanand chakravarti, "the separationbetween existentialrealities and the rhetoric of socialism indulged in by thewielders of power in the government cannot be moreprofound." 'some aspects of inequality in rural india : asociological perspective published in 'equality andinequality, theory and practice' edited by andre beteille,1983. normally, we would have directed the municipalcommissioner to afford an opportunity to the petitioners toshow why the enroachments committed by them on pavements orfootpaths should not be removed. but, the opportunity whichwas denied by the commissioner was granted by us in an amplemeasure, both sides having mate their contentionselaborately on acts as well as on law. having consideredthose contentions, we are of the opinion that thecommissioner was justified in directing the removal of theencroachments committed by the petitioners on pavements,footpaths or accessory roads. as observed in s.l. kapoor,(supra) "whereon the admitted or indisputable facts onlyone conclusion is possible and under the law only onepenalty is permissible, the court may not issue its writ tocompel the observance of natural justice, not because it isnot necessary to observe natural justice but because courtsdo not issue futile writs . indeed, in that case, the court
did not set aside the order of supersession in view of thefactual position stated by it. but, though we do not see anyjustification for asking the commissioner to hear thepetitioners, we propose to pass an order which, we believe,he would or should have passed, had he granted a hearing tothem and heard what we did. we are of the opinion that thepetitioners should not be evicted from the pavements,footpaths or accessory roads until one month after theconclusion of the current monsoon season, that is to say,until october 31,951985. in the meanwhile, as explained later, steps may betaken to offer alternative pitches to the pavement dwellerswho were or who happened to be censused in 1976. the offerof alternative pitches to such pavement dwellers should bemade good in the spirit in which it was made, though we donot propose to make it a condition precedent to the removalof the encroachments committed by them. insofar as the kamraj nagar basti is concerned, thereare over 400 hutments therein. the affidavit of themunicipal commissioner, shri d.m.sukhthankar, shows that thebasti was constructed on an accessory road, leading to thehighway. it is also clear from that affidavit that thehutments were never regularised and no registration numberswere assigned to them by the road development department.since the basti is situated on a part of the road leading tothe express highway, serious traffic hazards arise onaccount of the straying of the basti children on to theexpress highway, on which there is heavy vehicular traffic.the same criterion would apply to the kamraj nagar basti aswould apply to the dwellings constructed unauthorisedly onother roads and pavements in the city. the affidavit of shri arvind v. gokak, administrator ofthe maharashtra housing and areas development authority,bombay, shows that the state government had taken a decisionto compile a list of slums which were required to be removedin public interest and to allocate, after a spot inspection,500 acres of vacant land in or near the bombay suburbandistrict for resettlement of hutment dwellers removed fromthe slums. a census was accordingly carried out on january4, 1976 to enumerate the slum dwellers spread over about 850colonies all over bombay. about 67% of the hutment dwellersproduced photographs of the heads of their families, on thebasis of which the hutments were numbered and theiroccupants were given identity cards. shri gokak further saysin his affidavit that the government had also decided thatthe slums which were in existence for a long time and whichwere improved and developed, would not normally bedemolished unless the land was required for a publicpurposes. in the event that the land was so required, thepolicy of the state government was to provide alternate
accommodation to the slum dwellers who were censused andpossessed identity cards. the circular of the stategovernment dated february 4, 1976 (no. sts/176/d-41) bearsout this position. in the enumeration of the hutmentdwellers, some persons occupying pavements also happened tobe given census cards. the government decided to allot96pitches to such persons at aplace near malavani. theseassurance held forth by the government must be made good. inother words despite the finding recorded by us that theprovision contained in section 314 of the b.m.c. act isvalid, pavement dwellers to whom census cards were given in1976 must be given alternate pitches at malavani though notas a condition precedent to the removal of encroachmentscommitted by them. secondly, slum dwellers who were censusedand were given identity cards must be provided withalternate accommodation before they are evicted. there is acontroversy between the petitioners and the state governmentas to the extent of vacant land which is available forresettlement of the inhabitants of pavements and slums.whatever that may be, the highest priority must be accordedby the state government to the resettlement of theseunfortunate persons by allotting to them such land as thegovernment finds to be conveniently available. themaharashtra employment guarantee act, 1977, the employmentguarantee scheme, the 'new twenty point socio-economicprogramme, 1982', the 'affordable law income shelterprogramme in bombay metropolitan region' and the programmeof house building for the economically weaker sections' mustnot remain a dead letter as such schemes and programmesoften do. not only that, but more and more such programmesmust be initiated if the theory of equal protection of lawshas to take its rightful place in the struggle for equality.in these matters, the demand is not so much for lessgovernmental interference as for positive governmentalaction to provide equal treatment to neglected segments ofsociety. the profound rhetoric of socialism must betranslated into practice for, the problems which confrontthe state are problems of human destiny. during the course of arguments, an affidavit was filedby shri s.k.jahagirdar, under secretary in the department ofhousing, government of maharashtra, setting out the varioushousing schemes which are under the consideration of thestate government. the affidavit contains useful informationon various aspects relating to slum and pavement dwellers.the census of 1976 which is referred to in that affidavitshows that 28.18 lakhs of people were living in 6,27,404households spread over 1680 slum pockets. the earning of 80per cent of the slum house holds did not exceed rs.600 permonth. the state government has a proposal to undertake 'lowincome scheme shelter programme' with the aid of the world
bank. under the scheme, 85,000 small plots for constructionof houses would become available, out of which 40,000 wouldbe in greater bombay, 25,00 in the thane-kalyan area and20,000 in the new bombay region. the state government isalso97proposing to undertake 'slum upgradation programme(sup)'under which basic civic amenities would be made available tothe slum dwellers. we trust that these schemes, grandiose asthey appear, will be pursued faithfully and the aid obtainedfrom the world bank utilised systematically and effectivelyfor achieving its purpose. there is no short term or marginal solution to thequestion of squatter colonies, nor are such colonies uniqueto the cities of india. every country, during its historicalevolution, has faced the problem of squatter settlements andmost countries of the under-developed world face thisproblem today.even the highly developed affluent societiesface the same problem, though with their larger resourcesand smaller populations, their task is far less difficult.the forcible eviction of squatters, even if they areresettled in other sites, totally disrupts the economic lifeof the household. it has been a common experience of theadministrators and planners that when resettlement isforcibly done, squatters eventually sell their new plots andreturn to their original sites near their place ofemployment. therefore, what is of crucial importance to thequestion of thinning out the squatters' colonies inmetropolitan cities is to create new opportunities foremployment in the rural sector and to spread the existingjob opportunities evenly in urban areas. apart from thefurther misery and degradation which it involves, evictionof slum and pavement dwellers is an ineffective remedy fordecongesting the cities. in a highly readable and movingaccount of the problems which the poor have to face, susangeorge says: ('how the other half dies the real reasons forworld hunger' (polican books).
"so long as thorough going land reform, re- grouping and distribution of resources to the poorest, bottom half of the population does not take place, third world countries can go on increasing their production until hell freezes and hunger will remain, for the production will go to those who already have plenty to the developed world or to the wealthy in the third world itself. poverty and hunger walk hand in hand ."(page 18).
we will close with a quotation from the same book whichhas a massage:98
"malnourished babies, wasted mothers, emaciated corpses in the streets of asia have definite and
definable reasons for existing. hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. their condition is not inevitable but is caused by identifiable forces within the province of rational, human control". (p.15)
to summarise, we hold that no person has the right toencroach, by erecting a structure or otherwise, onfootpaths, pavements or any other place reserved or ear-marked for a public purpose like, for example, a garden or aplayground; that the provision contained in section 314 ofthe bombay municipal corporation act is not unreasonable inthe circumstances of the case; and that, the kamraj nagarbasti is situated on an accessory road leading to thewestern express highway. we have referred to the assurancesgiven by the state government in its pleadings here which,we repeat, must be made good. stated briefly, pavementdwellers who were censused or who happened to be censused in1976 should be given, though not as a condition precedent totheir removal, alternate pitches at malavanior at suchother convenient place as the government considersreasonable but not farther away in terms of distance; slumdwellers who were given identity cards and whose dwellingswere numbered in the 1976 census must be given alternatesites for their resettlement; slums which have been inexistence for a long time, say for twenty years or more, andwhich have been improved and developed will not be removedunless the land on which they stand or the appurtenant land,is required for a public purposes, in which case, alternatesites or accommodation will be provided to them, the 'lowincome scheme shelter programme' which is proposed to beundertaken with the aid of the world bank will be pursuedearnestly; and, the slum upgradation programme (sup)' underwhich basic amenities are to be given to slum dwellers willbe implemented without delay. in order to minimise thehardship involved in any eviction, we direct that the slums,wherever situated, will not be removed until one month afterthe end of the current monsoon season, that is, untiloctober 31,1985 and, thereafter, only in accordance withthis judgment. if any slum is required to be removed beforethat date, parties may apply to this court. pavementdwellers, whether censused or uncensused, will not beremoved until the same date viz. october 31, 1985.99 the writ petitions will stand disposed of accordingly.there will be no order as to costs.m.l.a. petitions disposed of.100
petitioner:municipal council, ratlam
vs.
respondent:shri vardhichand & ors.
date of judgment29/07/1980
bench:krishnaiyer, v.r.bench:krishnaiyer, v.r.reddy, o. chinnappa (j)
citation: 1980 air 1622 1981 scr (1) 97 1980 scc (4) 162 citator info : rf 1981 sc 344 (45) r 1982 sc 149 (15,607,968) rf 1986 sc 847 (12) rf 1991 sc1902 (24) r 1992 sc 248 (17)
act:
code of criminal procedure 1973, s. 133 & m. p.municipalities act 1961, s. 123-municipality not providingsanitary facilities and construction of public conveniencesfor slum dwellers-whether courts can compel municipal bodyto carry out its duty to the community to provide amenitiesand abate nuisance.
headnote: the residents (respondents) of a prominent residentiallocality of the municipality (petitioner) in their complaintunder s. 133 criminal procedure code to the sub-divisionalmagistrate averred that the municipality had failed despiteseveral pleas, to meet its basic obligations, like provisionof sanitary facilities on the roads, public conveniences forslum dwellers who were using the road for that purpose, andprevention of the discharge from the nearby alcohol plant ofmaladorous fluids into the public street, and that themunicipality was oblivious to the statutory obligationenvisaged in s. 123 m. p. municipalities act, 1961 the municipal council contested the petition on theground that the owners of houses had gone to that localityon their own choice, fully aware of the insanitaryconditions andtherefore they could not complain. it alsopleaded financial difficulties in the construction of drainsand provision of amenities. the magistrate found the facts proved, and ordered themunicipality to provide the amenities and to abate thenuisance by constructing drain pipes with flow of water towash the filth and stop the stench and that failure wouldentail prosecution under s. 188 i.p.c. the order of the magistrate was found unjustified bythe sessions court, but upheld by the high court. in the special leave petition by the municipality tothis court on the question whether a court can byaffirmative action compel a statutory body to carry out itsduty to the community by constructing sanitation facilitiesat great cost and on a time-bound basis.^ held : 1. wherever there is a public nuisance, thepresence of s. 133 criminal procedure code must be felt andany contrary opinion is contrary to the law. [112d] 2. the public power of the magistrate under the code isa public duty to the members of the public who are victimsof the nuisance and so he shall exercise, it when thejurisdictional facts are present. [107g]98 3. the magistrate's responsibility under s. 133 cr.p.c.is to order removal of such nuisance within a time to befixed in the order. this is a public duty implicit in the
public power to be exercised on behalf of the public andpursuant to a public proceeding. failure to comply with thedirection will be visited with a punishment contemplated bys. 188 i.p.c. [109c-d] 4. the municipal commissioner or other executiveauthority bound by the order under s. 133 criminal procedurecode shall obey the direction because disobedience, ifcauses obstruction or annoyance or injury to any personslawfully pursuing their employment, shall be punished withsimple imprisonment or fine as prescribed in the section.the offence is aggravated if the disobedience tends to causedanger to human health or safety. [109e] 5. public nuisance, because of pollutants beingdischarged by big factories to the detriment of the poorersections, is a challenge to the social justice component ofthe rule of law. [110c] 6. the imperative tone of s. 133 criminal procedurecode read with the punitive temper of s. 188 i.p.c. make theprohibitory act a mandatory duty. [109e] 7. the criminal procedure code operates againststatutory bodies and others regardless of the cash in theircoffers, even as human rights under partiii of theconstitution have to be respected by the state regardless ofbudgetary provision. [108h] 8. section 123 m. p. municipalities act 1961 has nosaving clause when the municipal council is penniless.[108h] 9. although the cr.p.c. and i.p.c. are of ancientvintage the new social justice orientation imparted to themby the constitution of india makes them a remedial weapon ofversatile use. social justice is due to the people and,therefore, the people must be able to trigger off thejurisdiction vested for their benefit in any publicfunctionary like a magistrate under s. 133 criminalprocedure code. in the exercise of such power, the judiciarymust be informed by the broader principle of access tojustice necessitated by the conditions of developingcountries and obligated by art. 38 of the constitution.[109f-g] 10. a responsible municipal council constituted for theprecise purpose of preserving public health and providingbetter finances cannot run away from its principal duty bypleading financial inability. decency and dignity are non-negotiable facets of human rights and are a first charge onlocal self-governing bodies. similarly, providing drainagesystems not pompous and attractive, but in working conditionand sufficient to meet the needs of the people-cannot beevaded if the municipality is to justify its existence.[110e] 11. the court, armed with the provisions of the twocodes and justified by the obligation under s. 123 of the
act, must adventure into positive directions as it has donein the present case. section 133 criminal procedure codeauthorises the prescription of a time-limit for carrying outthe order. the same provision spells out the power to givespecific directives. [111a-b] govind singh v. shanti sarup, [1979] 2 scc 267, 279referred to. 12. the state will realise that art. 47 makes it aparamount principle of governance that steps are taken forthe improvement of public health as amongstits primaryduties. the municipality also will slim its budget on99low priority items and elitist projects to use the savingson sanitation and public health. [114c] 13. where directive principles have found statutoryexpression in do's and don'ts the court will not sit idly byand allow municipal government to become a statutorymockery. the law will relentlessly be enforced and the pleaof poor finance will be poor alibi when people in misery cryfor justice. the dynamics of the judicial process have a new`enforcement' dimension not merely through some of theprovisions of the criminal procedure code (as here) but alsothrough activated tort consciousness. the officers in chargeand even the elected representatives will have to face thepenalty of the law if what the constitution and follow uplegislation direct them to do are defied or deniedwrongfully. the wages of violation is punishment, corporateand personal. [114g-115a] [the court approved a scheme of construction work to be undertaken by the municipality for the elimination of the insanitary conditions and directed that the work be commenced within two months and that the magistrate inspect the progress of the work every three months and see that it is implemented. [113 d-114 b]
judgment: criminal appellate jurisdiction: special leave petition(crl.) no. 2856 of 1979. from the judgment and order dated 6-8-1979 of themadhya pradesh high court in crl. revision no. 392/76. sobhag mal jain and s. k. jain for the petitioner. c. s. chhazed, miss manisha gupta and m. s. gupta forrespondents 1-5. s. k. gambhir for the state. the order of the court was delivered by krishna iyer, j.-`it is procedural rules', as thisappeal proves, `which infuse life into substantive rights,which activate them to make them effective'. here, beforeus, is what looks like a pedestrian quasi-criminal
litigation under s. 133 cr.p.c., where the ratlammunicipality-the appellant-challenges the sense andsoundness of the high court's affirmation of the trialcourt's order directing the construction of drainagefacilities and the like, which has spiralled up to thiscourt. the truth is that a few profound issues of processualjurisprudence of great strategic significance to our legalsystem face us and we must zero-in on them as they involveproblems of access to justice for the people beyond theblinkered rules of `standing' of british indian vintage. ifthe centre of gravity of justice is to shift, as thepreamble to the constitution mandates, from the traditionalindividualism of locus standi to the community orientationof public interest litigation, these issues must beconsidered. in that sense, the case before us between theratlam municipality and the citizens of100a ward, is a path-finder in the field of people'sinvolvement in the justicing process, sans which as prof.sikes points out,(1) the system may `crumble under theburden of its own insensitivity'. the key question we haveto answer is whether by affirmative action a court cancompel a statutory body to carry out its duty to thecommunity by constructing sanitation facilities at greatcost and on a time-bound basis. at issue is the coming ofage of that branch of public law bearing on communityactions and the court's power to force public bodies underpublic duties to implement specific plans in response topublic grievances. the circumstances of the case are typical and overflowthe particular municipality and the solutions to the keyquestions emerging from the matrix of facts are capable ofuniversal application, especially in the third worldhumanscape of silent subjection of groups of people tosqualor and of callous public bodies habituated todeleterious inaction. the ratlam municipal town, like manyindian urban centres, is populous with human and sub-humanspecies, is punctuated with affluence and indigence incontrasting co-existence, and keeps public sanitation a lowpriority item. what with cesspools and filth menacing publichealth. ward no. 12, new road, ratlam town is an area whereprosperity and poverty live as strange bedfellows. the richhave bungalows and toilets, the poor live on pavements andlitter the street with human excreta because they useroadsides as latrines in the absence of public facilities.and the city fathers being too busy with other issues tobother about the human condition, cesspools and stinks,dirtied the place beyond endurance which made the well-to-docitizens protest, but the crying demand for basic sanitationand public drains fell on deaf ears. another contributorycause to the insufferable situation was the discharge from
the alcohol plant of malodorous fluids into the publicstreet. in this lawless locale, mosquitoes found a stagnantstream of stench so hospitable to breeding and flourishing,with no municipal agent disturbing their stinging music athuman expense. the local denizens, driven by desperation, atlong last, decided to use the law and call the bluff of themunicipal body's bovine indifference to its basicobligations under s. 123 of the m. p. municipalities act,1961 (the act, for short). that provision casts a mandate:
123. duties of council.-(1) in addition to the duties imposed upon it by or under this act or any other enactment for the time being in force, it shall be the duty of a council to101 undertake and make reasonable and adequate provision for the following matters within the limits of the municipality, namely:
xx xx xx (b) cleansing public streets, places and sewers,
and all places, not being private property, which are open to the enjoyment of the public whether such places are vested in the council or not; removing noxious vegetation, and abating all public nuisances:
(c) disposing of night-soil and rubbish and preparation of compost manure from night-soil and rubbish.and yet the municipality was obvious to this obligationtowards human well-being and was directly guilty of breachof duty and public nuisance and active neglect. the subdivisional magistrate, ratlam, was moved to take actionunder s. 133 cr.p.c., to abate the nuisance by ordering themunicipality to construct drain pipes with flow of water towash the filth and stop the stench. the magistrate found thefacts proved, made the direction sought and scared by theprospect of prosecution under s. 188 i.p.c., for violationof the order under s. 133 cr.p.c., the municipality rushedfrom court to court till, at last, years after, it reachedthis court as the last refuge of lost causes. had themunicipal council and its executive officers spent half thislitigative zeal on cleaning up the street and constructingthe drains by rousing the people's sramdan resources andlaying out the city's limited financial resources, thepeople's needs might have been largely met long ago. butlitigation with other's funds is an intoxicant, while publicservice for common benefit is an inspiration; and, in acompetition between the two, the former overpowers thelatter. not where a militant people's will takes overpeople's welfare institutions, energises the common humannumbers, canalises their community consciousness, forbidsthe offending factories from polluting the environment,forces the affluent to contribute wealth and the indigent
their work and thus transforms the area into a healthylocality vibrant with popular participation and vigilance,not neglected ghettoes noisy with squabbles among the slimyslum-dwellers nor with electoral 'sound and fury signifyingnothing.' the magistrate, whose activist application of s. 133cr.p.c., for the larger purpose of making the ratlammunicipal body to do its duty and abate the nuisance byaffirmative action, has our appreciation. he has summed upthe concrete facts which may be usefully quoted in portions:
"new road, ratlam, is a very important road and so many prosperous and educated persons are living on this road. on102the southern side of this road some houses are situated andbehind these houses and attached to the college boundary,the municipality has constructed a road and this new roadtouches the government college and its boundary. just inbetween the said area a dirty nala is flowing which is justin the middle of the main road i.e. new road. in this stream(nala) many a time dirty and filthy water of alcohol planthaving chemical and obnoxious smell, is also released forwhich the people of that locality and general public have toface most obnoxious smell. this nala also produces filthwhich causes a bulk of mosquitoes breeding. on this verysouthern side of the said road a few days back municipalityhas also constructed a drain but it has (?) constructed itcompletely but left the construction in between and in someof the parts the drain has not at all been constructedbecause of this the dirty water of half constructed drainand septic tank is flowing on the open land of applicants,where due to insanitation and due to non-removing theobstructed earth the water is accumulated in the pits and italso creates dirt and bad smell and produces mosquitoes inlarge quantities. this water also goes to nearby houses andcauses harm to them. for this very reason the applicants andthe other people of that locality are unable to live andtake rest in their respective houses. this is also injuriousto health".there are more dimensions to the environmental pollutionwhich the magistrate points out: "a large area of this locality is having slums where nofacility of lavatories is supplied by the municipality. manysuch people live in these slums who relieve their lateraldirt on the bank of drain or on the adjacent land. this wayan open latrine is created by these people. this createsheavy dirt and mosquitoes. the drains constructed in otherpart of this mohalla are also not proper it does not flowthe water properly and it creates the water obnoxious. themalaria department of the state of m.p. also pays noattention in this direction. the non-applicants have not
managed the drains, nallahs and naliyan properly and due toincomplete construction the non-applicants have left nooutlet for the rainy water. owing to above reasons the wateris accumulated on the main road, it passes through livinghouses, sometimes snakes and scorpions come out and thisobstruct the people to pass through this road. this alsocauses financial loss to the people of this area. the roadconstructed bynagarpalika is on a high level and due tothis, this year more103 water entered the houses of this locality and it caused this year more harm and loss to the houses also. this way all works done by the non-applicantsi.e. construction of drain, canal and road come within the purview of public nuisance. the non-applicantshave given no response to the difficulties of the applicants, and non-applicants are careless in their duties towards the public, for which without any reason the applicants are facing the intolerable nuisance. in this relation the people of this locality submitted their returns, notices and given their personal appearance also to the non-applicants but thenon- applicants are shirking from their responsibilities and try to avoid their duty by showing other one responsible for the same, whereas all the non- applicants are responsible for the public nuisance." litigation is traumatic and so the local people askedfirst for municipal remedies failing which they moved formagisterial remedies:
"at the last the applicants requested to remove all the nuisance stated in their main application and they also requested that under-mentioned works must be done by the non-applicants and for which suitable orders may be issued forthwith:
1. the drains constructed by municipality are mismanaged and incomplete, they should be managed and be completed and flow of water in the drains should be made so that the water may pass through the drain without obstruction.
2. the big pits and earthen drains which are situated near the college boundary and on the corners of the road where dirty water usually accumulates, they should be closed and the filth shall be removed therefrom.
3. the big 'nala' which is in between the road, should be managed and covered in this way that it must not create overflow in the rainy season.
4. the malaria department should be ordered to sprinkle d.d.t. and act in such a manner and use such means so that the mosquitoes may be eradicated completely from the said locality."
the proceedings show the justness of the grievances andthe indifference of the local body:
"both the parties heard. the court was satisfied on the facts contained in their application dated 12-5- 72 and granted conditional order against non-applicants no. 1 and 2 u/s 133 of cr. p.c. (old code). in this order all the nuisances were described (which were there in their main application) and the court directed to remove104 all the nuisances within 15 days and if the non- applicants have any objection or dissatisfaction against the order then they must file it on the next date of hearing in the court."
xx xx xx "the applicants got examined the following
witnesses in their evidence and after producing following documents they closed their evidence."
xx xx xx "no evidence has been produced by the non-
applicants in spite of giving them so many opportunities. both the parties heard and i have also inspected the site."
xx xx xx "the non-applicant (municipal council) has sought
six times to produce evidence but all in vain. likewise non-applicant (town improvement trust) has also produced no evidence."
the nallah comes into picture after the construction of road and bridge. it has shownthat nallah is property of nagarpalika according to ex.p. 10. many applications were submitted to remove the nuisance but without result. according to sec. 32 to 43 of the town improvement trust act, it is shown, that it has only the provisions to make plans. many atime people tried to attract the attention of municipal council and the town improvement trust but the non- applicants always tried to throw the responsibility on one another shoulder. xx xx xx
it is submitted by non-applicant (municipality) that the said nallah belongs to whom, it is still disputed i.e. whether it belongs to non-applicant 1 or 2. shastri colony is within the area of town improvement trust. the nagarpalika (non-applicant no. 1) is financially very weak. but municipal council is not careless towards its duties.
non-applicant (town improvement trust) argued that primary responsibility lies with the municipal council only. there is no drainage system. at the end of it all, the court recorded:
............... after considering all the facts i come to this conclusion that the said dirty nallah is in between the main road of ratlam city. this dirty nallah affects the mohalla of new105 road, shastri colony, volga talkies and it is just in the heart of the city. this is the very important road and is between the railway station and the main city. in these mohallas, cultured and educated people are living. the nallah which flows in between the new road and shastri colony the water is not flowing rapidly and on many places there are deep pits in which the dirty water is accumulated. the nallah is also not straight that is also the reason of accumulation of dirty water. the nallah is not managed properly by the non- applicants. it is unable to gush the rainy water and due to this the adjoining areas always suffer from over-flowing of the water and it causes the obstruction to the pedestrians.
xx xx xx it is also proved by the evidence given by the
applicants that from time to time the power alcohol factory which is situated outside the premises of the municipal council and it flows its dirty and filthy water into the said nallah, due to this also the obnoxious smell is spreading throughout the new road or so it is the bounden duty of the municipal council and the town improvement trust to do the needful in this respect.
xx xx xx the dirty water which flows from the lavatories
and urinals of the residential houses have no outlet and due to this reason there are many pits on the southern side of the new road and all the pits are full of dirty and stinking water. so it is quite necessary to construct an outlet for the dirty water in the said locality.
in this area many a places have no drainage system and if there is any drain it has no proper flow and water never passes through the drain properly.that causes the accumulation of water and by the time it becomes dirty and stink and then it produces mosquitoes there. the magistrate held in the end:
thus after perusing the evidence i come to this conclusion and after perusing the applications submitted by the persons residing on the new road area from time to time to draw the attention of the non- applicants to remove the nuisance, the non-applicants have taken no steps whatsoever to remove all these public nuisances.
he issued the following order which was wrongly foundunjustified by the sessions court, but rightly upheld by thehigh court:106
therefore, for the health and convenience of the people residing in that particular area of all the nuisance must be removed and for that the following order is hereby passed:
(1) the town improvement trust with the help of municipal council must prepare a permanent plan to make the proper flow in the said nallah which is flowing in between shastri colony and new road. both the non- applicants must prepare the plan within six months and they must take proper action to give it a concrete form.
(2) according to para 13 a few places are described which are either having the same drains and the other area is having no drain and due to this the water stinks there; so the municipal council and the town improvement trust must construct the proper drainage system and within their own premises where there is no drain it must be constructed immediately and all this work should be completed within six months.
(3) the municipal council should construct drains from the jail to the bridge behind the southern side of the houses so that the water flowing from the septic tanks and the other water flowing outside the residential houses may be channellised and it may stop stinking and it should have a proper flow so that the water may go easily towards the main nallah. all these drains should be constructed completely within six months by the municipal council.
(4) the places where the pits are in existence the same should be covered with mud so that the water may not accumulate in those pits and it may not breed mosquitoes. the municipal council must complete this work within two months.
a notice under section 141 of the criminal procedure code (old code) may be issued to the non- applicants nos. 1 and 2 so that all the works may be carried out within the stipulated period. case is hereby finalised. now that we have a hang of the case we may discuss themerits, legal and factual. if the factual findings are good-and wedo not re-evaluate them in the supreme court exceptin exceptional cases- one wonders whether our municipalbodies are functional irrelevances, banes rather than boomsand 'lawless' by long neglect, not leaders of the people inlocal self-government. it may be a cynical obiter ofpervasive veracity that municipal bodies minus the people
and plus the bureaucrats are the bathetic vogue-no betterthan when the british were here:107 we proceed on the footing, as we indicated even whenleave to appeal was sought, that the malignant facts ofmunicipal callousness to public health and sanitation, heldproved by the magistrate, are true. what are the legalpleas to absolve the municipality from the court's directiveunder s. 133 cr.p.c. ? that provision reads:
s. 133(1) whenever a district magistrate or a sub- divisional magistrate or any other executive magistrate specially empowered in this behalf by the state government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed fromany public place or from any way, river or channel which is or may be lawfully used by the public;xx xx xx
such magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance; or xx xx xx (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or if he objects so to do, to appear before himself or some other executive magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided. why the order should not be made absolute.
so the guns of s. 133 go into action wherever there ispublic nuisance. the public power of the magistrate underthe code is a public duty to the members of the public whoare victims of the nuisance, and so he shall exercise itwhen the jurisdictional facts are present as here. "allpower is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs, andall must exist."(i) discretion becomes a duty when thebeneficiary brings home the circumstances for its benignexercise. if the order is defied or ignored, s. 188 i.p.c. comesinto penal play:108
188. whoever, knowing that, by an order
promulgated by a public servant lawfully empowered to promulgate such order, he is directed to obtain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction
and if such disobedience causes or tends to cause danger to human life health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. there is no difficulty in locating who has theobligation to abate the public nuisance caused by absence ofprimary sanitary facilities. section 123, which ismandatory, (we repeat), reads:
123. duties of council :-(1) in addition to the duties imposed upon it by or under this act or any other enactment for the time being in force, it shall be the duty of a council to undertake and make reasonable and adequate provision for the following matters within the limits of the municipality, namely:-
(a).............. (b) cleansing public streets, places and sewers, and all places not being private property, which are open to the enjoyment of the public whether such places are vested in the council or not; removing noxious vegetation, and abating all public nuisances; (c) disposing of night-soil and rubbish and preparation of compost manure from night-soil and rubbish.
the statutory setting being thus plain, themunicipality cannot extricate itself from itsresponsibility. its plea is not that the facts are wrong butthat the law is not right because the municipal funds beinginsufficient it cannot carry out the duties under s. 123 ofthe act. this 'alibi' made us issue notice to the statewhich is now represented by counsel, shri gambhir, beforeus. the plea of the municipality that notwithstanding thepublic nuisance financial inability validly exonerates itfrom statutory liability has no juridical basis. thecriminal procedure code operates against statutory bodiesand others regardless of the cash in their coffers, even ashuman rights under part iii of the constitution have to berespected by the state regardless of budgetary provision.likewise, s. 123 of the act has no saving clause when themunicipal council is penniless. otherwise, a profligate109statutory body or pachydermic governmental agency maylegally defy duties under the law by urging in self-defencea self-created bankruptcy or perverted expenditure budget.
that cannot be. section 133 cr.p.c. is categoric, although readsdiscretionary. judicial discretion when facts for itsexercise are present, has a mandatory import. therefore,when the sub-divisional magistrate, ratlam, has, before him,information and evidence, which disclose the existence of apublic nuisance and, on the materials placed, he considersthat such unlawful obstruction or nuisance should be removedfrom any public placewhich may be lawfully used by thepublic, he shall act. thus, his judicial power shall,passing through the procedural barrel, fire upon theobstruction or nuisance, triggered by the jurisdictionalfacts. the magistrate's responsibility under s. 133 cr.p.c.is to order removal of such nuisance within a time to befixed in the order. this is a public duty implicit in thepublic power to be exercised on behalf of the public andpursuant to a public proceeding. failure to comply with thedirection will be visited with a punishment contemplated bys. 188 i.p.c. therefore, the municipal commissioner or otherexecutive authority bound by the order under s. 133 cr.p.c.shall obey the direction because disobedience, if it causesobstruction or annoyance or injury to any persons lawfullypursuing their employment, shall be punished with simpleimprisonment or fine as prescribed in the section. theoffence is aggravated if the disobedience tends to causedanger to human health or safety. the imperative tone of s.133 cr.p.c. read with the punitive temper of s. 188 i.p.c.make the prohibitory act a mandatory duty. although these two codesare of ancient vintage, thenew social justice orientation imparted to them by theconstitution of india makes it a remedial weapon ofversatile use. social justice is due to the people and,therefore, the people must be able to trigger off thejurisdiction vested for their benefit in any publicfunctionary like a magistrate under s. 133 cr.p.c. in theexercise of such power, the judiciary must be informed bythe broader principle of access to justice necessitated bythe conditions of developing countries and obligated by art.38 of the constitution. this brings indian public law, inits processual branch, in line with the statement of prof.kojima :(1) "the urgent need is to focus on the ordinaryman-one might say the little man..." "access to justice" bycappelletti and b. garth summarises the new change thus:(2)110
"the recognition of this urgent need reflects a fundamental change in the concept of "procedural justice"... the new attitude to procedural justice reflects what professor adolf homburger has called "a radical change in the hierarchy of values served by civil procedure"; the paramount concern is increasingly with "social justice," i.e., with finding procedures
which are conducive to the pursuit and protection of the rights of ordinary people. while the implications of this change are dramatic-for instance, insofar as the role of the adjudicator is concerned-it is worth emphasizing at the outset that the core values of the more traditional procedural justice must be retained. "access to justice" must encompass both forms of procedural justice." public nuisance, because of pollutants being dischargedby big factories to the detriment of the poorer sections, isa challenge to the social justice component of the rule oflaw. likewise, the grievous failure of local authorities toprovide the basic amenity of public conveniences drives themiserable slum-dwellers to ease in the streets, on the slyfor a time, and openly thereafter, because under nature'spressure, bashfulness becomes a luxury and dignity adifficult art. a responsible municipal council constitutedfor the precise purpose of preserving public health andproviding better finances cannot run away from its principalduty by pleading financial inability. decency and dignityare non-negotiable facets of human rights and are a firstcharge on local self-governing bodies. similarly, providingdrainage systems- not pompous and attractive, but in workingcondition and sufficient to meet the needs of the people-cannot be evaded if the municipality is to justify itsexistence. a bare study of the statutory provisions makesthis position clear. in this view, the magistrate's approach appears to beimpeccable although in places he seems to have beeninfluenced by the fact that "cultured and educated people"live in this area and "new road, ratlam" is a very importantroad and so many prosperous and educated persons are livingon this road. in india 'one man, one value' is the democracyof remedies and rich or poorthe law will call to orderwhere people's rights are violated. what should also havebeen emphasised was the neglect of the malaria department ofthe state of madhya pradesh to eliminate mosquitoes,especially with open drains, heaps of dirt, public excretionby humans for want of lavatories and slums nearby, hadcreated an intolerable situation for habitation. an order toabate the nuisance by taking affirmative action on a time-bound basis is justified in the circumstances. the nature ofthe judicial process is not purely adjudicatory nor is itfunctionally that of an umpire only.111affirmative action to make the remedy effective is of theessence of the right which otherwise becomes sterile.therefore, the court, armed with the provisions of the twocodes and justified by the obligation under s. 123 of theact, must adventure into positive directions as it has donein the present case. section 133 cr.p.c. authorises the
prescription of a time-limit for carrying out the order. thesame provision spells out the power to give specificdirectives. we see no reason to disagree with the order ofthe magistrate. the high court has taken a correct view and followedthe observations of this court in govind singh v. shantisarup(1) where it has been observed:
"we are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large, the safer course would be to accept the view of the learned magistrate, who saw for himself the hazard resulting from the working of the bakery." we agree with the high court in rejecting the plea thatthe time specified in the order is unworkable. the learnedjudges have rightly said.
"it is unfortunate that such contentions are raised in 1979 when these proceedings have been pending since 1972. if in seven year's time the municipal council intended to remedy such a small matter there would have been no difficulty at all. apart from it, so far as the directions are concerned, the learned magistrate, it appears, was reasonable. so far as direction no. 1 is concerned, the learned magistrate only expected the municipal council and the town improvement trust to evolve a plan and to start planning about it within six months: the learned magistrate has rightly not fixed the time limit within which that plan will be completed. nothing more reasonable could be said about direction no. 1." a strange plea was put forward by the municipal councilbefore the high court which was justly repelled, viz., thatthe owners of houses had gone to that locality on their ownchoice with eyes open and, therefore, could not complain ifhuman excreta was flowing, dirt was stinking, mosquitoeswere multiplying and health was held hostage. a public bodyconstituted for the principal statutory duty of ensuringsanitation and health cannot outrage the court by such anugly plea.112luckily, no such contention was advanced before us. therequest for further time for implementation of themagistrate's order was turned down by the high court sinceno specific time-limit was accepted by the municipality forfulfillment of the directions. a doleful statement about thefinancial difficulties of the municipality and the assurancethat construction of drains would betaken up as soon aspossible had no meaning. the high court observed:
"such assurances, it appears, are of no avail as unfortunately these proceedings for petty little things
like clearing of dirty water, closing the pits and repairing of drains have taken more than seven years and if these seven years are not sufficient to do the needful, one could understand that by grantingsome more time it could not be done."the high court was also right in rejecting the additionalsessions judge's recommendation to quash the magistrate'sorder on the impression that s. 133 cr.p.c. did not providefor enforcement of civic rights. wherever there is a publicnuisance, the presence of s. 133 cr.p.c. must be felt andany contrary opinion is contrary to the law. in short, wehave no hesitation in upholding the high court's view of thelaw and affirmation of the magistrate's order. before us the major endeavour of the municipal councilwas to persuade us to be pragmatic and not to forceimpracticable orders on it since it had no wherewithal toexecute the order. of course, we agree that law is realisticand not idealistic and what cannot be performed under givencircumstances cannot be prescribed as a norm to be carriedout. from that angle it may well be that while upholding theorder of the magistrate, we may be inclined to tailor thedirection to make it workable. but first things first and wecannot consent to a value judgment where people's health isa low priority. nevertheless, we are willing to revise theorder into a workable formula the implementation of whichwould be watch-dogged by the court. three proposals have been put forward before us inregard to the estimated cost of the scheme as directed bythe magistrate. the magistrate had not adverted to theactual cost of the scheme nor the reasonable time that wouldbe taken to execute it. as stated earlier it is necessary toascertain how far the scheme is feasible and how heavy thecost is likely to be. the court must go further to frame ascheme and then fix time-limits and even oversee the actualexecution of the scheme in compliance with the court'sorder. three schemes placed before us, together with tentativeestimates of the costs, have been looked into by us. judgesare laymen and cannot put on expert airs. that was why weallowed the municipality113and the respondents to produce before us schemes prepared byexpert engineers so that we may modify the directions issuedby the magistrate suitably. scheme 'a' is stated to cost anestimated amount of rs. 1.016 crores. the state governmenthas revised this proposal and brought down the cost. in ourview, what is important is to see that the worst aspects ofthe insanitary conditions are eliminated, not that a showyscheme beyond the means of the municipality must beundertaken and half done. from that angle we approve scheme'c' which costs only around rs. 6 lakhs. we fix a time limit
of one year for completing execution of the work accordingto that scheme. we further direct that the work shall bebegun within two months from to-day and the magistrate shallinspect the progress of the work every three months broadlyto be satisfied that the order is being implemented bonafide. breaches will be visited with the penalty of s. 188i.p.c. we make the further supplementary directions which wespecifically enjoin upon the municipal authority and thestate government to carry out. 1. we direct the ratlam municipal council (r1) to
take immediate action, within its statutory powers, to stop the effluents from the alcohol plant flowing into the street. the state government also shall take action to stop the pollution. the sub divisional magistrate will also use his power under s. 133 i.p.c., to abate the nuisance so caused. industries cannot make profit at the expense of public health. why has the magistrate not pursued this aspect ?
2. the municipal council shall, within six months from to-day, construct a sufficient number of public latrines for use by men and women separately, provide water supply and scavenging service morning and evening so as to ensure sanitation. the health officer of the municipality will furnish a report, at the end of the six- monthly term, that the work has been completed. we need hardly say that the local people will be trained in using and keeping these toilets in clean condition. conscious cooperation of the consumers istoo important to be neglected by representative bodies.
3. the state government will give special instructions to the malaria eradication wing to stop mosquito breeding in ward 12. the sub divisional magistrate will issue directions to the officer concerned to file a report before him to the effect that the work has been done in reasonable time.
4. the municipality will not merely construct the drains but also fill up cesspools and other pits of filth and use its sanitary
114 staff to keep the place free from accumulations of filth. after all, what it lays out on prophylactic sanitation is a gain on its hospital budget.
5. we have no hesitation in holding that if these directions are not complied with the sub divisional magistrate will prosecute the officers responsible. indeed, this court will also consider
action to punish for contempt in case of report by the sub divisional magistrate of willful breach by any officer.
we are sure that the state government will makeavailable by way of loans or grants sufficient financial aidto the ratlam municipality to enable it to fulfil itsobligations under this order. the state will realise thatart. 47 makes it a paramount principle of governance thatsteps are taken 'for the improvement of public health asamongst its primary duties'. the municipality also will slimits budget on low priority items and elitist projects to usethe savings on sanitation and public health. it is not ourintention that the ward which has woken up to its rightsalone need be afforded these elementary facilities. weexpect all the wards to be benefited without litigation. thepressure of the judicial process, expensive and dilatory, isneither necessary nor desirable if responsible bodies areresponsive to duties. cappelletti holds good for india whenhe observes :(1) "our judicial system has been aptly described asfollows:
admirable though it may be, (it) is at once slow and costly. it is a finished product of great beauty, but entails an immense sacrifice of time, money and talent. this "beautiful" system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims."why drive common people to public interest action ? wheredirective principles have found statutory expression in do'sand dont's the court will not sit idly by and allowmunicipal government to become a statutory mockery. the lawwill relentlessly be enforced and the plea of poor financewill be poor alibi when people in misery cry for justice.the dynamics of the judicial process has a new 'enforcement'dimension not merely through some of the provisions of thecriminal procedure code (as here), but also throughactivated tort consciousness. the officers in charge andeven the elected representatives will have115to face the penalty of the law if what the constitution andfollow-up legislation direct them to do are defied or deniedwrongfully. the wages of violation is punishment, corporateand personal. we dismiss this petition subject to the earliermentioned modifications.n.v.k. petition dismissed.116
case no.:writ petition (civil) 4677 of 1985
petitioner:m.c. mehta
vs.
respondent:union of indi a & ors.
date of judgment: 01/03/2001
bench:g.b. pattannaik, umesh c. banerjee & b.n. agrawal
judgment:
withi.a.no. 1254 in i.a. no.22
i.a.nos.153, 455, 1181, 451 & 441 in w.p.(c ) no.4677/1985
and
ia no.1328 in ia no.1254 in ia no.129 in wp© no.4677/85
re: m/s. swatnatra bharat mills & dcm silk mills
ia no.1329 in ia no.1254 in ia no.129 in wp© no.4677/85re: birla textiles
judgment
banerjee, j.l...i...t.......t.......t.......t.......t.......t.......t..j
on 10th may, 1996, this court on a petition filed as apublic interest litigation directed surrender of plots uponrelocation of h categories industries more than fouryears have passed since the date of the order butregrettably the purpose of the order, to wit, to providesome open space and green verge for the benefit of thepeople of the capital city, stands unfulfilled and thusresultantly deprivation of lung space in the city. lawsdelay in this sub- continent is not unknown in theadversarial litigation, but the situation should not andought not to be similar in a public interest litigation moreso when the same concerns environmental degradation: arather sad state of affairs. it is on this perspective,however, that the present interlocutory application takenout by the dda for direction on six key questions asmentioned in the petition shall have to be considered.
incidentally, some entrepreneursalso moved certainother interlocutory applications, we do deem it fit howeverto record that the entrepreneurs application or any othermatter or petition pending shall await the judgment andorder in dda's application. before, however, proceedingwith the matter further, a brief backgrounder seems to berather indispensable having regard to the concept ofsustainable development for the capital city.needless tosay while the brundtland report called out for adaptationglobally of a strategy of sustainable development definingit as development that meets the need of the present withoutcompromising the ability of future generations to meet theirown needs, the initial linkage between the natural and manmade environment and the critical relevance of bothenvironment and development is generally attributed to thestockholm declaration of 1972 which stands restated andreaffirmed by the un general assembly in december, 1986specifying therein sustained and rapid development fordeveloping nations.
prof. nico schrijver of the institute of social studiesat hague, in his paper on legal aspect of sustainabledevelopment and protection of environment has high-lightedthis right to development or sustainable development andindicated that the same includes a healthy environment.
the controversy as regards development or environmentvis- à-vis the society however persists and it is in thiscontext a judgment of the calcutta high court, of which oneof us (banerjee, j.) was a party, in regard to calcuttaswetlands in the eastern fringe of the city of calcutta (seeair 1993 cal 215) may be noted: relevant extracts whereofare noted hereinbelow:- while it is true that in adeveloping country there shall have to be developments, butthat development shall have to be in closest possibleharmony with the environment, as otherwise there would bedevelopment but no environment, which would result in totaldevastation, though however, may not be felt in presenti butat some future point of time, but then, it would be too latein the day, however, to control and improve the environment.nature will not tolerate us after a certain degree of itsdestruction and it will, in any event, have its toll on thelives of the people. can the present-day society afford tohave such a state and allow the nature to have its toll infuture the answer shall have to be in the negative. thepresent-day society has a responsibility towards theposterity for their proper growth and development so as toallow the posterity to breathe normally and live in acleaner environment and have a consequent fullerdevelopment. time has now come therefore to check andcontrol the degradation of the environment and since the lawcourts also have a duty towards the society for its propergrowth and further development, it is a plain exercise ofthe judicial power to see that there is no such degradationof the society and there ought not to be any hesitation inregard thereto..
the calcutta wetland judgment was pronounced on theapprehended danger of a severe bio-diversity crisis but thesituation in the capital city of delhi is rather pathetic:non- availability of even the lung space has resulted in avery high degree of pollution as a matter of fact, thiscourt (vide: 1996 (4) scc 351) while dealing with the issueat the instance of mr. mehta, the lawyer andsocial-activist had the following to state:
7. delhi is one of the most polluted cities in theworld. the quality of ambient air is so hazardous that lungand respiratory diseases are on the increase. the city has
become a vast and unmanageable conglomeration of commercial,industrial, unauthorised colonies, resettlement colonies andunplanned housing . there is total lack of open spaces andgreen areas. once a beautiful city delhi now presents achaotic picture. the most vital community need as atpresent is the conservation of the environment and reversalof the environmental degradation. there are virtually nolung spaces in the city. the master plan indicates theapproximately 34 per cent of recreational areas have beenlost to other uses. we are aware that the housing, thesports activity and the recreational areas are also part ofthe community need but the most important community needwhich is wholly deficient and needed urgently is to providefor the lung spaces in the city of delhi in the shape ofgreen belts and open spaces. we are therefore, of the viewthat totality of the land which is surrendered and dedicatedto the community by the owners/occupiers of therelocated/shifted industries should be used for thedevelopment of green belts and open spaces.
the court in discharge of its social duty and obligationas the guardian angel of the society further directed in the@@ jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjsame decision as below:@@jjjjjjjjjjjjj
9. we, therefore, order and direct that the land whichwould become available on account of shifting/relocation ofhazardous/noxious/heavy and large industries from thecityof delhi shall be used in the following manner:-
be sl. extent percentage to be percentage to by the n@@ iiiiiiiiiiiiiiiiiiiiiiiiiiiiii
surrendered and developed dedicated to the owner for his own@@iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiibenefit in accordance dda for development of with the user@@
iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiperm itted master plan green belts and under the other@@iiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiispaces@@iiiiii
1 2 3 4
1. up to 2000 sq. mts. - 100% to be developed (including the first by the owner in 2000 sq.mts. of the@@
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj accordance with the larger plot) zoning
regulations of
the master plan @@iiiiiiiiiiiiiiii
2. 0.2 ha to 5 ha 57 43
3. 5 ha to 10 ha 65 35
4. over 10 ha 68 32
the earlier paragraphs have been introduced in thisjudgment as a backgrounder and to emphasize the sensitivityof the issue since environmental degradation will have itstoll and there cannot be any doubt or dispute therein,though may not be felt in presenti.
the directions as above in terms of the order dated 10thmay, 1996 has however, led to some confusion at the time of@@ jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjexecution of this courts order before the district judge,@@jjjjjjjjjdelhi since none of the industrial units which were closeddown by the order of this court, took any step whatsoeverfor surrendering the land on the pretended pretext of theorder of this court dated 4.12.1996.
significantly, however, the order dated 4th december,1996 of this court came to be passed in an interlocutoryapplication for directions filed by the central governmentwherein this court was pleased to observe in paragraph 3 ofthe order as below (vide 1997 (11) scc 327):
3. we see considerable force in the contention of thelearned additional solicitor general on the second pointalso. the existing hazardous industries having been closed,what remains is the plot, superstructure and the workmen.the occupants of the plots and the owners of the industrieswhich have been closed down shall have to undertake freshprocedure for setting up of a new industry. needless to saythat no industry can be set up which is not permitted underthe master plan. the procedure required for setting up of anew industry shall have to be followed in every case. wemake it clear that government permission and the consentfrom the pollution control board/committee, if requiredunder law, shall have to be obtained . even fresh electricconnection and water connection shall have to be applied forand obtained in the changed circumstances. we have no doubtwhen approached for necessary
permission/licence/water/electric connections theauthorities shall expedite in dealing with theapplications.
the order of 4th december, 1996 though mainly pertainhowever to the compensation aspect to the workers of thoseindustries which are not re-locating and which have beenclosed down but some variations were ordered having regardto the setting up of industries in accordance with masterplan of delhi. the order however was clear enough toindicate the intent of the order. in this interlocutoryapplication, however, delhi development authority said tohave been confronted with various queries raised by theindustries and upon consideration thereof prayed forissuance of appropriate directions in regard to the issuesme ntioned hereinbelow:
i) land surrendered by the industries as per order dated10.5.1996 has to be on the total plot area in possession.@@
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj
ii) land offered for surrender should be directlyapproachable from the road, vacant and free from allencumbrances.
iii) from the land surrender cases in respect of plotsleased by delhi development authority, it is seen that outof 14 industrial units requiring to surrender the land, 7have a plot area ranging between 8 sq.m to 100 sq.m.honble supreme court is requested to give directions forminimum plot area to be surrendered by an industrial unit.
iv) certain units have restarted their industriesremoving/modifying the objectionable use process andobtained clearances from various departments. are suchindustries also liable to surrender land to delhidevelopment authority as per orders dated 10.5.1996,8.7.1996 and 4.12.1996?
v) there are certain industries which were closed priorto the orders of honble supreme court dated 10.5.1996 buttheir names appear in the list of h category industries tobe closed as mentioned in the various orders of honblesupreme court. are such industries liable to surrenderland? there are other industrial units which closedpursuant to the honble supreme courts orders dated10.5.1996 and restarted the activities as per orders dated4.12.1996 of honble supreme court. suitable directions maybe given whether land surrender from such industries has tobe effected.
vi) there are certain units which were running in rentedpremises from within plot located in an approved industrialarea/non conforming area and whose name is got included inthe list of 1328 industries released by honble supremecourt from time to time. after the orders of honblesupreme court dated 10.5.1996, the tenant has closed downthe industry and has handed over the rented premises to theoriginal owner. in such cases is the original ownerrequired to surrender land if the total plot area is morethan 2000 sq.m.?
adverting to the records at this juncture, be it notedthat after the judgment of this court on 10th may, 1996 asabove, three interlocutory applications, having more or lesssimilar prayers were dismissed: delhi development authorityalso filed the ia no.139 for clarification of order dated10.5.1996, 8.7.1996 and 4.12.1996 with a prayer that theunits required to surrender land are now closed down asbeing a hazardous large scale industry and do not wish torelocate but to start units which are permitted in themaster plan and in compliance with the pollution controlnorms. this court however dismissed the interlocutoryapplication on 1st october, 1997.
significantly, the interlocutory application no.139 wasfiled on behalf of delhi development authority and theprayer therein not only bears a similarity with the prayerin this application but more or less the same hasbeencouched in the exactly similar language and for conveniencesake the same is set out hereinbelow:-
(a) whether the order dated 10.5.1996 passed by thehonble court in so far as it require the units to surrenderland would apply to such units which after having closed thehazardous large scale industries do not wish to relocate butto start units which are permitted under the master plan andwhich also comply with pollution control rules.
it is on this prayer this court passed an order ofdismissal though however without recording any reason.
mr. ranjit kumar, the learned amicus curiae appearingin the matter contended that by reason of rejection of sucha prayer, resulting in the dismissal of the application,question of further consideration of the issue as isproposed in question no.iv hereinbefore would not arise.undoubtedly, there is some substance in such a contentionbut the factum of non-availability of reasons in the orderhas rendered the situation slightly more flexible so as toafford a further opportunity to this court having regard to
the concept of justice to consider in some detail the orderdated 4th december, 1996 in i.a. no.36 accepting thecontention of the learned additional solicitor general. theclarificatory order of 4th december, 1996 did in fact granta liberty which would be dealt with in detail whileanswering the issues raised in the application.
another redeeming feature which ought also to be noticedpertains to the desire of the delhi development authority tomove the court once again after having failed in such anattempt earlier. we are at a loss to find a further attempton the part of the delhi development authority. the reasonsobviously there would be some: but apparently nothing wasforthcoming.
subsequently, swatantra bharat mill and dcm silk millsalso moved i.a.no.425 with a prayer to direct dda to acquirethe land required to be surrendered under the dda act or theland acquisition act and to restrain dda for trying toexpropriate the land of the petitioner : this prayer alsowas turned down by this court and hence the application wasdismissed as withdrawn. be it noted that the learned amicuscurie with his usual eloquence contended that reviewapplications against the order passed on 10th may, 1996numbered 36 in the year 1996, 55 in the year 1997, 3 in theyear 1999 and 2 petitions in the year 2000, as the recordsdepict, were all dismissed and on the wake of the same, mr.ranjit kumar addressed us in detail that the presentpetition said to be for clarification cannot but beattributed to be a further attempt to review of the orderdated 10.5.1996 which, in fact, does not call for any reviewnor does it call for any further order substituting theearlier order dated 10th may, 1996.
mr. rawal, the learned additional solicitor generalhowever, contended that while submission of mr. ranjitkumar may have some substance pertaining to some of issuesas raised herein but that cannot said to be applicable inregard to all the issues. mr. additional solicitor generalmade it quite categorical that the application as filed bydda is not for circumvention of compliance of the order ofthis court but only to act in terms therewith. the instantpetition, mr. rawal contended has been initiated as anecessity and dda had to move this court for certainclarification since there have been large scale unscrupulouswithholding of delivery of possession. the necessity alsosaid to be by reason of proposed transfer to land-lockedareas which cannot possibly be utilised even as a lung-spaceby reason of non- availability of an entry thereto. it hasbeen contended further that since a large number of proposedsurrender, if not in its entirety, are with encumbrances,
question of obtaining possession thereof upon clearance ofthe encumbrances by the dda would not arise since that wouldfoist an additional financial burden or liability beyond thecapacity of the dda to meet.
mr. rawal contended that transfer also should beeffected without any superstructure on the land asotherwise, it would be a near impossibility for dda to takepossession thereof. be it noted that the order dated 10thmay, 1996 specifically directed that h category industriesare required to surrender the land to the dda. we may notehere that this order of surrender was passed by reason ofthe fact that the pollution level has reached its optimum inthe city of delhi affecting the entire society hcategory industries were directed to close down and tosurrender the land so as to make available some green beltand open space popularly ascribed to be lung space for thecity. industries might have closed in terms of the order ofthis court and the compliance to the order was to thislimited extent only. structures are still lying there andno surrender has yet taken place. majesty of law demandedcompliance in observance rather than in its breach it isfor the society only that this court thought it fit to passorder to the extent as indicated above the capital city ofthe country ought not to be termed as the most polluted cityin the world: it is with this spirit that the publicinterest litigation was filed and this court also maintainedthe same by directing the shifting of h categoryindustries five years have passed by and not one industryhas surrendered though of course, by reason therefore,show-cause notice to these industries were issued by theorder dated 21st september, 1999 and the public notice wasdirected to be issued by an order dated 12th october, 1999.the matters are pending in court but there has not been anychange of situation. significantly by reason of a specificsituation this court in the case of hindustan vegetablespassed an order on7th december, 1999 directing the hindustanvegetables oil corporation to hand over 2 acres of the landonly on which the factory premises stood and not the landmeasuring about 1.20 acres belonging to the factory andsituated just abutting the other side of the road: as amatter of fact the land stands bifurcated by the road - onefor the factory use and the other for the residentialpurposes and it is by reason of the peculiar factualelements, that this court passed an order directing only thefactory area to be surrendered thus the order as passed on7th december, 1999 in hindustan vegetables case cannot betermed to be of general application for surrender of allfactory lands any interpretation which runs counter of theabove would also be opposed to the true spirit of the orderand there would be a total failure of the avowed objects of
social welfare and social benefit which has prompted thiscourt to pass the order dated 10th may, 1996.
mr. venugopal and mr. shanti bhushan, learned seniorcounsels appearing for the entrepreneurs however, complainedof violation of fundamental rights under article 14. mr.shanti bhushan contended that factum of surrender would notarise since the industries which he represents are preparedto restart and relocate the industries within the ambits ofthe master plan and zonal development plans and this courtought in the fitness of things grant necessary clarificationin regard thereto. in the similar vein mr. venugopal alsosubmitted that light and service industries and householdindustrial units stands permitted in terms of the masterplan for delhi and the zonal development plan does notcontain any bar for their continuance in the event the samefalls within the ambit of the master plan. mr. venugopalcontended that though hazardous and noxious industrial unitsare not permitted in delhi and existing heavy and largescale industrial units both in terms of this courts orderand in terms of the master plan are required to be relocatedand shifted but the land which would become available onaccount of such shifting ought to be used for making up thedeficiency as per the needs of the community based on normsgiven in the master plan. mr. venugopal contended that asa matter of fact in the event any land or part of the landso vacated is not needed for the deficiency of the communityservice the master plan for delhi itself records that thesame would be used as per prescribed land use. strongemphasis has been laid on master plan for delhi perspective,2001 in particular the chapter on work centres industry.relevant extracts of which are set out herein below forready reference:-
heavy and large industries refer annexure iii h(b)
a. b..
(c) the land which would become available on account ofshifting as administered in (b) above, would be used formaking up the deficiency, as per the needs of the community;based on norms given in the master plan; if any land orpart of land so vacated is not needed for the deficiency ofthe community services, it will be used as per prescribedland use; however the land shall be used for light andservice industries, even if the land use according to themaster plan/zonal development plan is extensive industry
(emphasis supplied).
(d) modernisation of heavy and large scale industrialunits shall be permitted subject to the followingconditions:
(i) it will reduce pollution and traffic congestion.
(ii) whenever the unit is asked to shift according tothe policies of the plan, no compensation shall be paid forassets attained because of modernisation.
much emphasis has been laid on the word however (asemphasised above) and relying thereon it has been contendedthat user of land, in the event the same is not needed fordeficiency of community services, can thus be had for lightand service industries even if the master plan or zonaldevelopment plan depicts its user as extensive industry.further reliance was also placed on paragraph (d) of themaster plan that even modernisation of heavy and large scaleindustrial units is permitted though subject to theconditions specified in (i) and (ii) above. it is in thiscontext also our attention has been drawn to the zonaldevelopment plan in particular the existing land use and theproposed land use in sub-zone g. in reference to the samemr. venugopal contended that existing land use totals5456.32 hectare whereas the proposed land use is identicalin area no doubt the submission at the first blush seemsto be rather attractive but when read in the light of thedecision of this court as recorded in the judgment dated10th may, 1996 we are afraid that the same pales into itsinsignificance since the submission cannot be countenancedat this juncture and after the expiry of five years. therewere altogether in the records of this court 96 applicationsfor review which had the fate of dismissal by this courtfrom time to time as detailed herein before in this judgment- it is thus probably a bit too late in the day to contendand take recourse to the rules to avoid surrender of land.this courts order has been categorical and it is onlyexpected that the entrepreneurs would act in terms therewithand not de hors the same. needless to dilate that in thecase of swatantra bharat mills and dcm silk mills, thelearned district and sessions judge, delhi recorded in theorder dated 25th july, 2000 about the factum of filing ofobjections to the execution petitions pertaining to thesurrender of land. the order of the learned judge recordsthat the land in question has not been offered as yet and assuch directed the industry to remove all the superstructuresfrom the land and also file an undertaking that it is freefrom all encumbrances. the land should further beaccessible from the public road; be it recorded that the
two industries named above in which the learned district andsessions judge passed the directions as above in nouncertain terms submitted that the land tobe offered,stands free from all encumbrances and there is existing nocloud on the title of the industry over the land which is tobe surrendered.
mr. gopal subramaniam, learned senior counsel appearingfor the entrepreneurs also contended in the same vein thatas a matter of fact, the master plan and the zonaldevelopment plans having statutory recognition in terms ofthe delhi development act, 1957, paragraphs © and (d) asnoticed above under the title work centres industry ought tobe given its full play and the order of this court, thusshould be modified to incorporate the same. incidentally,it has been contended rather strongly that the master planbeing the golden thread in the orders passed by this courtfrom time to time, and since there is available under themaster plan some relief the same ought to be made availableto the entrepreneurs. in this context paragraph 11 of thejudgment dated 10th may, 1996 (supra) may be noticed andwhich reads as below:-
the dda has suggested that it may be necessary to amendthe master plan for regularising the land use as directed byus. we do not agree with the suggestion. the totality ofthe land made available as a result of therelocation/shifting of the industries is to be used for thecommunity needs. the land surrendered by the owner has tobe used for the development of green belt and open spaces.the land left with the owner is to be developed inaccordance with the user permitted under the master plan.in either way the development is to meet the community needswhich is in conformity with the provisions of the masterplan.
we would also deem it fit to quote paragraph 12 as belowfor consideration of this aspect of the matter: we are,therefore, of the view that it is not necessary to amend themaster plan.
while it is true that this court has directed user ofland left with the owner to be developed in accordance withthe user permitted under the master plan but the whole aim,object and spirit of the order was to meet the communityneed and it is in this context also that mr. gopalsubramaniam drew our attention to the appendix to the zonaldevelopment plan pertaining to area g. we are howeverunable to accede to such a submission since time has notcome as yet in any event to assess the situation in itsentirety. the zonal development plans produced before the
court has not been finalised as yet since it is presently inthe draft stage and as such no reliance can be placed bythis court on the data and the materials available thereon.a proposal cannot be said to be a final declaration of thecommunity need. we are thus unable to record ourconcurrence therewith for the reasons noticed above. theorder of this court dated 4th december, 1996 in the matterin issue ( 1997 (11) scc 327) was passed in an interlocutoryapplication for directions filed by the union of indiawherein in paragraphs 2 and 3 this court observed as below:
2. so far as the first contention is concerned,learned additional solicitor general has taken us throughthe order of this court in m.c. mehta v. union of india(1996 (4) scc 351) regarding land-use along with the orderdated 8.7.1996 (m.c. mehta v. union of india (1996) 4 scc750) regarding relocation of 168 industries. the intentionof this court is clear that the order regarding land re-usewas both for relocating industries as well as those whichdecide to close down and not to relocate. (emphasissupplied) the learned counsel for the industries have notdisputed this interpretation. we, therefore, accept thecontention of learned additional solicitor general. nothingmore need be said on this point.
3. we see considerable force in the contention of thelearned additional solicitor general on the second pointalso. the existing hazardous industries having been closed,what remains is the plot, superstructure and the workmen.the occupants of the plots and the owners of the industrieswhich have been closed down shall have to undertake freshprocedure for setting up of a new industry. needless to saythat no industry can be set up which is not permitted underthe master plan. the procedure required for setting up of anew industry shall have to be followed in every case. wemake it clear that government permission and the consentfrom the pollution control board/committee, if requiredunder law, shall have to be obtained. even fresh electricconnection and water connection shall have to be applied forand obtained in the changed circumstances. we have no doubtwhen approached for necessary permission/licence/water/electric connections the authorities shall expedite indealing with the applications.
the order as above thus unmistakably depicts theintention of this court to rely on its order dated 10th may,1996 though with certain variations as noticed herein beforein this judgment. setting up of industries was expresslyauthorised, upon compliance with all regulatoryrequirements, unfortunately however though certainadvantages has been made available, but not one of the
learned advocates could respond in the affirmative even on aspecific enquiry from the court.
the issues are long pending- the issues are urgent sincethe entire society is impaired no exception can be takento the legal battles involved in an adversarial litigationthis is not one such instance: it is a true public interestlitigation for the protection of the society and to avoid adeliberate peril arising out of entrepreneurial failure andtotal apathy and non-concern for social good and benefit.the delhi development act of 1957 envisaged preparation ofmaster plan for delhi with a definite statutory direction todefine various zones into which delhi may be divided for thepurposes of development and the manner in which the land ineach zone is proposed to be used and the stages by whichsuch development shall be carried out. as a matter of factthe master plan came into existence in 1962 and h categoryindustries ought to have shifted out of the area specifiedtherein by 1962 itself. then came the master plan of 1990to combat the existing situation with a specified period ofshifting within three years i.e. there was an obligation tothe h category industries to shift and relocate in termsof the master plan by the year 1993 and the social activistby reason of the failure of the entrepreneurs, moved thiscourt in 1995 whereupon after allowing all possibleopportunities to all entrepreneurs and upon assessment ofthe situation through the appointments of commissions andobtaining various reports on these aspects, passed the orderon 10th may, 1996 which has till date not been complied with an indeed a sorry state of affairs and a total neglect andapathy towards the society, new and novel submissions areadvanced as in any adversarial litigation but unfortunatelyas noticed above it is too late in the day to contendotherwise apart from what the order contains as of 10th may,1996. needless to record that as late as april last year(28th april, 2000) this court issued a direction to theaffect that within one month all the industries which arerequired to surrender land in terms of this courts orderdated 10th may, 1996 should voluntarily surrender the sameto the delhi development authority and if the same has notbeen done the dda will be duty bound to file an applicationfor execution of this courts order before the districtjudge, delhi and the district judge shall thereupon executethis courts order and report compliance within four weeksof the filing of the execution application. be it notedthat by the order last referred, this court further directedthat the execution application to be filed by dda not laterthan 8 weeks from the date of the order the entrepreneursshould have some regard and sanctity for the orders of thiscourt rather than pleading anew before the court for furtherclarification [if assuming we ascribe the same to be
clarification rather than review] can this be termed to bein consonance with the law or is it a deliberate attempt toridicule the courts order? we will not be very wrong if weanswerthe same that probably the second alternative is theanswer. the dda also has raised certain inquiries beforethis court again after the specific direction of this courtin 28th april, 2000s order. we are at a loss as to whyafter the specific order of the learned district judgeinstead of relying thereon, a further application has beenfiled before this court in july, 2000. dda is expected toact in terms of the order expeditiously rather than with thedelayed whip in its hands. in any event we answer theinquiries raised in the manner following:-
re (i).. so far as the first issue is concerned, wemake it clear that the order dated 7.12.1999, in the case ofvegetable oil was in the peculiar facts of that case and isnot of universal application, nor does it in any way dilutethe mandate of the order of this court dated 10.5.1996directing surrender of entire land subject to the extent ofavailability to the owner as per order dated 10.5.1996reported in 1996 (4) supreme court cases 351.
re (ii). so far as the second issue is concerned,if the owner has the land which is approachable from theroad, then he must surrender with the approach, so that thesurrendered land can be utilised for the community. if,however, he is himself not the owner of the approach road,then question of his providing an approach road does notarise and as such surrender shall take effect on as iswhere is basis. on the question as to the land to besurrendered should be free from encumbrance, we are of theview, if the land is already encumbered, then a direction torelease it from encumbrance and surrender will be a greatburden. at the same time, such land will be of no use tothe society unless released from encumbrance. in thecircumstances we direct that the owner cannot utilise theland available to him by virtue of order of this court dated10.5.96, until he releases the surrendered landfromencumbrance. further if it is not made free fromencumbrance within five years, then he will not get thebenefit of the order dated 10.5.96 and after five years eventhe land which the owner was otherwise entitled to retainwould stand vested with dda for the use and the need of thesociety.
re(iii) so far as the third issue is concerned,those who are required to surrender upto 100 sq. meterafter that extent of land becomes available to them underthe order of this court dated 10.5.96 they need notsurrender, since such a tiny bit of land cannot be utilised
for any need of the society.
re(iv) so far as the fourth issue is concerned, itis to be noted that on the application of the union ofindia, this court by order dated 4.12.96 in ia no.36 in writpetition no.4677 of 1985, accepting the 2nd contention ofthe learned additional solicitor general, held that theoccupants of the plots and the owners of the industrieswhich have been closed down shall have to undertake freshprocedure for setting up of a new industry and such industrycan be established if permissible under the master plan.the court also observed that when approached for necessarypermission/license/water/ electric connections, theauthorities shall expedite in dealing the applications.(see 1997 (11) scc 327). in view of the aforesaidclarificatory order of the court on the application of theunion government, it would not be necessary for those unitswho have started new industries after obtaining clearancesfrom various departments, provided that the master planpermits establishment of such industries, to surrender theland. but those who have not started such industries withappropriate clearance from the competent authority, theycannot be permitted to take the stand that they intend tostart such industry nor such a plea will entitle them toretain the land. they must be bound by the earlierdirection of the court requiring them to surrender. thiswill apply to those industries which have not relocated thehazardous industries elsewhere. but if they have relocated,they cannot get the benefit, as has been held by the courtin the order dated 28.4.2000, reported in 2000 (4) scale267,
re(v). so far as the fifth issue is concerned, ifthe names of the industries appear in the list of hcategories in various orders of the court, and they have notappeared or put anyobjection, then it would not bepermissible for them to put up the plea that industries wereclosed down prior to order dated 10.5.96 and claim anequitable right of not surrendering.
re(vi) so far as the sixth issue is concerned, it isapparent that the order of the closure was on the industrieswhich were found injurious, irrespective of the fact whetherit was being carried on by the owner of the land or thetenant. this being the position, the subsequent directionof surrender also is in relation to the land on which suchindustries were being carried on and were ordered to beclosed down. consequently, it is irrelevant where tenantafter closing down the industries, handed over the premisesto the owner. the owner in such case would be bound by theorder for surrender, and will have to surrender.
interlocutory application filed by the dda thus standsdisposed of as above.
the other ias. shall be dealt with separately.
petitioner:m.c. mehta
vs.
respondent:kamal nath & ors.
date of judgment: 12/05/2000
bench:s.s.ahmad, doraiswami raju
judgment:
s.saghir ahmad, j. this case, which was finally decided by this court byits judgment dated december 13, 1996, has been placed beforeus for determination of the quantum of pollution fine. itmay be stated that the main case was disposed of with thefollowing directions:- 1. the public trust doctrine, asdiscussed by us in this judgment is a part of the law of theland. 2. the prior approval granted by the government of
india, ministry of environment and forest by the letterdated november 24, 1993 and the lease-deed dated april 11,1994 in favour of the motel are quashed. the lease grantedto the motel by the said lease-deed in respect of 27 bighasand 12 biswas of area, is cancelled and set aside. thehimachal pradesh government shall take over the area andrestore it to its original-natural conditions. 3. themotel shall pay compensation by way of cost for therestitution of the environment and ecology of the area. thepollution caused by various constructions made by the motelin the river bed and the banks of the river beas has to beremoved and reversed. we direct neeri through its directorto inspect the area, if necessary, and give an assessment ofthe cost which is likely to be incurred for reversing thedamage caused by the motel to the environment and ecology ofthe area. neeri may take into consideration the report bythe board in this respect. 4. the motel through itsmanagement shall show cause why pollution fine in additionbe not imposed on the motel. 5. the motel shall constructa boundary wall at a distance of not more than 4 meters fromthe cluster of rooms (main building of the motel) towardsthe river basin. the boundary wall shall be on the area ofthe motel which is covered by the lease dated september 29,1981. the motel shall not encroach/cover/utilise any partof the river basin. the boundary wall shall separate themotel building from the river basin. the river bank and theriver basin shall be left open for the public use. 6. themotel shall not discharge untreated effluents into theriver. we direct the himachal pradesh pollution controlboard to inspect the pollution control devices/treatmentplants set up by the motel. if the effluent/wastedischarged by the motel is not conforming to the prescribedstandards, action in accordance with law be taken againstthe motel. 7. the himachal pradesh pollution control boardshall not permit the discharge of untreated effluent intoriver beas. the board shall inspect all thehotels/institutions/factories in kullu-manali area and incase any of them are discharging untreated effluent/wasteinto the river, the board shall take action in accordancewith law. 8. the motel shall show cause on december 18,1996 why pollution-fine anddamages be not imposed asdirected by us. neeri shall send its report by december 17,1996. to be listed on december 18, 1996." pursuant to theabove order, notice was issued requiring the motel toshow-cause on two points; (i) why the motel be not asked topay compensation to reverse the degraded environment and(ii) why pollution fine, in addition, be not imposed. mr.g.l. sanghi, learned senior counsel, appearing for m/s spanmotel private ltd., has contended that though it is open tothe court, in proceedings under article 32 of theconstitution, to grant compensation to the victims whose
fundamental rights might have been violated or who are thevictims of an arbitrary executive action or victims ofatrocious behaviour of public authorities in violation ofpublic duties cast upon them, it cannot impose any fine onthose who are guilty of that action. he contended that thefine is a component of criminal jurisprudence and cannot beutilised in civil proceedings specially under article 32 or226 of the constitution either by this court or the highcourt as imposition of fine would be contrary to theprovisions contained in article 20 and 21 of theconstitution. it is contended that fine can be imposed upona person only if it is provided by a statute and givesjurisdiction to the court to inflict or impose that fineafter giving a fair trial to that person but in the absenceof any statutory provision, a person cannot be penalised andno fine can be imposed upon him. mr. m.c. mehta, who hasbeen pursuing this case with the usual vigour and vehemence,has contended that if a person disturbs the ecologicalbalance and tinkers with the natural conditions of rivers,forests, air and water, which are the gifts of nature, hewould be guilty of violating not only the fundamentalrights, guaranteed under article 21 of the constitution, butalso be violating the fundamental duties to protectenvironment under article 51a(g) which provides that itshall be the duty of every citizen to protect and improvethe natural environment including forests, lakes, rivers andwildlife and to show compassion for living creatures. theplanet earth which is inhabited by human beings and otherliving creatures, including animals and birds, has been socreated as to cater to the basic needs of all the livingcreatures. living creatures do not necessarily mean thehuman beings, the animals, the birds, the fish, the worms,the sepents, the hydras, but also the plants of differentvarieties, the creepers, the grass and the vast forests.they survive on fresh air, fresh water and the sacred soil.they constitute the essential elements for survival of"life" on this planet. the living creatures, includinghuman beings, lived peacefully all along. but when thehuman beings started acting inhumanly, the era of distressbegan which in it wake brought new problems for survival.the industrial revolution brought an awakening among the meninhabiting this earth that the nature, with all itsresources was not unlimited and forever renewable. theuncontrolled industrial development generating tonnes ofindustrial waste disturbed the ecological balance bypolluting the air and water which in turn, had a devastatingeffect on the wildlife and, therefore, the early efforts toprotect the environment related to the protection ofwildlife. but then the two world wars, the first world war(1914-1918) and the second world war (1939 to 1945) duringwhich atomic bombs were exploded resulting in the loss of
thousands of lives and burning down of vast expanses offorests, made the man realise that if the environmentaldisturbances were not controlled, his own survival on thisplanet would become impossible. the united nations,therefore, held a conference on human environment atstockholm in 1972. in the wake of the resolutions adoptedat that conference, different countries at different stagesenacted laws to protect the deteriorating conditions ofenvironment. here in india, the legislature enacted threeacts, namely, the water (prevention & control of pollution)act, 1974; the air (prevention & control of pollution) act,1981 and the environment (protection) act, 1986. it alsoenacted the water (prevention & control of pollution) cessact, 1977. under these acts, rules have been framed to giveeffect to the provisions thereof. they are : the water(prevention and control of pollution) rules, 1975; thewater (prevention & control of pollution) cess rules, 1978;the air (prevention and control of pollution) rules, 1982;the air (prevention & control of pollution) (unionterritories) rules, 1983; the environment (protection)rules, 1986; the hazardous wastes (management and handling)rules, 1989; the manufacture, storage and import ofhazardous chemicals rules, 1989, the chemical accidents(emergency planning, preparedness and response) rules, 1996and hosts of other rules and notifications. in addition tothese acts and rules, there are, on the statute book, otheracts dealing, in a way, with the environmental laws, forexample, the indian forest act, 1927; the forest(conservation) act, 1980; the wildlife (protection) act,1972 and the rules framed under these acts. various statesin india have also made their environmental laws and rulesfor the protection of environment. apart from the abovestatutes and the rules made thereunder, article 48a of theconstitution provides that the state shall endeavour toprotect and improve the environment and to safeguard theforests and wildlife of the country. one of the fundamentalduties of every citizen as set out in article 51a(g) is toprotect and improve the natural environment, includingforests, lakes, rivers and wildlife and to have compassionfor living creatures. these two articles have to beconsidered in the light of article 21 of the constitutionwhich provides that no person shall be deprived of his lifeand liberty except in accordance with the procedureestablished by law. any disturbance of the basicenvironment elements, namely air, water and soil, which arenecessary for "life", would be hazardous to "life" withinthe meaning of article 21 of the constitution. in thematter of enforcement of rights under article 21 of theconstitution, this court, besides enforcing the provisionsof the acts referred to above, has also given effect tofundamental rights under article 14 and 21 of the
constitution and has held that if those rights are violatedby disturbing the environment, it can award damages not onlyfor the restoration of the ecological balance, but also forthe victims who have suffered due to that disturbance. inorder to protect the "life", in order to protect"environment" and in order to protect "air, water and soil"from pollution, this court, through its various judgmentshas given effect to the rights available, to the citizensand persons alike, under article 21 of the constitution.the judgment for removal of hazardous and obnoxiousindustries from the residential areas, the directions forclosure of certain hazardous industries, the directions forclosure of slaughter-house and its relocation, the variousdirections issued for the protection of the ridge area indelhi, the directions for setting up effluent treatmentplants to the industries located in delhi, the directions totanneries etc., are all judgments which seek to protectenvironment. in the matter of enforcement of fundamentalrights under article 21, under public law domain, the court,in exercise of its powers under article 32 of theconstitution, has awarded damages against those who havebeen responsible for disturbing the ecological balanceeither by running the industries or any other activity whichhas the effect of causing pollution in the environment. thecourt while awarding damages also enforces the "polluterpays principle" which is widely accepted asa means ofpaying for the cost of pollution and control. to put inother words, the wrongdoer, the polluter, is under anobligation to make good the damage caused to theenvironment. the recognition of the vice of pollution andits impact on future resources was realised during the earlypart of 1970. the united nations economic commission foreurope, during a panel discussion in 1971, concluded thatthe total environmental expenditure required for improvementof the environment was overestimated but could be reduced byincreased environmental awareness and control. in 1972, theorganisation for economic cooperation and developmentadopted the "polluter pays principle" as a recommendablemethod for pollution cost allocation. this principle wasalso discussed during the 1972 paris summit. in 1974, theeuropean community recommended the application of theprinciple by its member states so that the costs associatedwith environmental protection against pollution may beallocated according to uniform principles throughout thecommunity. in 1989, the organisation for economiccooperation and development reaffirmed its use and extendedits application to include costs of accidental pollution.in 1987, the principle was acknowledged as a bindingprinciple of law as it was incorporated in europeancommunity law through the enactment of the single europeanact, 1987. article 130r.2 of the 1992 maastricht treaty
provides that community environment policy "shall be basedon the principle that the polluter should pay." "polluterpays principle" has also been applied by this court invarious decisions. in indian council for enviro legalaction vs. union of india, air 1996 sc 1446 = 1996 (2) scr503 = (1996) 3 scc 212 = jt 1996 (2) sc 196, it was heldthat once the activity carried on was hazardous orinherently dangerous, the person carrying on that activitywas liable to make good the loss caused to any other personby that activity. this principle was also followed invellore citizens welfare forum vs. union of india & ors.,air 1996 sc 2715 = (1996) 5 scc 647= jt 1996 (7) sc 375which has also been discussed in the present case in themain judgment. it was for this reason that the motel wasdirected to pay compensation by way of cost for therestitution of the environment ecology of the area. but itis the further direction why pollution fine, in addition, benot imposed which is the subject matter of the presentdiscussion. chapter vii of the water (prevention andcontrol of pollution) act, 1974 contains the provisionsdealing with penalties and procedure. this chapter consistsof sections 41 to 50. sub-section (2) and (3) of section 41provide for the punishment and imposition of fine. they arequoted below:- "41.(2) whoever fails to comply with anyorder issued under clause (e) of sub-section (1) of section32 or any direction issued by a court under sub-section (2)of section 33 or any direction issued under section 33a,shall in respect of each failure and on conviction, bepunishable with imprisonment for a term which shall not beless than one year and six months but which may extend tosix years and fine, and in case the failure continues, withan additional fine which may extend to five thousand rupeesfor every day during which such failure continues after theconviction for the first such failure. (3) if the failurereferred to in sub-section (2) continues beyond a period ofone year after the date of conviction, the offender shall,on conviction, be punishable with imprisonment for a termwhich shall not be less than two years but which may extendto seven years and with fine." similarly, section 42provides that a person shall be liable to be punished withimprisonment for a term which may extend to three months orwith fine which may extend to ten thousand rupees or withboth. sub-section (2) of section 42 also contemplatesimprisonment for a term which may extend to three months orwith fine which may extend to ten thousand rupees or withboth. section 43 contemplates penalty for contravention ofthe provisions of section 24. section 44 contemplatespenalty for contravention of section 25 or section 26. theyalso contemplate imposition of fine. section 45 providesthat if a person who has been convicted of any offence undersection 24 or section 25 or section 26 is again found guilty
of an offence involving a contravention of the sameprovision, he shall, on the second and on every subsequentconviction, be punishable with imprisonment for a term whichshall not be less than two years but which may extend toseven years and with fine. section 45a provides thatwhoever contravenes any of the provisions of this act orfails to comply with any order or direction given under thisact, for which no penalty has been elsewhere provided inthis act, shall be punishable with imprisonment which mayextend to three months or with fine which may extend to tenthousand rupees or with both and in the case of continuingcontravention or failure, he may be punished with anadditional fine. section 47 contemplatesoffences bycompanies while section 48 contemplates offences bygovernment departments. section 15 of the environment(protection) act, 1986 provides for penalty forcontravention of the provisions of the act and the rules,orders and directions made thereunder. sub-section (1) ofsection 15 speaks of imprisonment for a term which mayextend to five years or with fine which may extend to onelakh rupees, or with both, and in case the failure orcontravention continues, with additional fine which mayextend to five thousand rupees for every day during whichsuch failure or contravention continues after the convictionfor the first such failure or contravention. section 16 ofthe act contemplates offences by the companies while section17 contemplates offences by government departments. chaptervi of the air (prevention and control of pollution) act,1981 containsthe provisions for penalties and procedure.this chapter consists of sections 37 to 46. section 37provides penalties for failure to comply with the provisionsof section 21 or section 22 or with the directions issuedunder section 31a. it provides that the person shall bepunishable with imprisonment for a term which shall not beless than one year and six months but which may extend tosix years and with fine, and in case the failure continues,with an additional fine which may extend to five thousandrupees for every day. sub-section (2) of this sectionprovides that if the failure continues beyond the period ofone year after the date of conviction, the offender shall bepunishable with imprisonment for a term which shall not beless than two years but which may extend to seven years andwith fine. section 38 also provides penalties for certainacts and it provides that for such acts as are referred toin that section, a person shall be punishable withimprisonment for a term which may extend to three months orwith fine which may extend to ten thousand rupees or withboth. section 39 contemplates penalty for contravention ofcertain provisions of the act and it provides forimprisonment for a term which may extend to three months orwith fine which may extend to ten thousand rupees or with
both, and in the case of continuing contravention, with anadditional fine which may extend to five thousand rupees forevery day during which such contravention continues afterconviction for the first such contravention. section 40speaksof offences by companies while section 41 speaks ofoffences by government departments. all the three acts,referred to above, also contemplate the taking of thecognizance of the offences by the court. thus, a personguilty of contravention of provisions of any of the threeacts which constitutes an offence has to be prosecuted forsuch offence and in case the offence is found proved thenalone he can be punished with imprisonment and fine or both.the sine qua non for punishment of imprisonment and fine isa fair trial in a competent court. the punishment ofimprisonment or fine can be imposed only after the person isfound guilty. in the instant case, a finding has beenrecorded that m/s span motel had interfered with the naturalflow of river and thus disturbed the environment and ecologyof the area. it has been held liable to pay damages. thequantum of damages is under the process of being determined.the court directed a notice to be issued to show cause whypollution fine be not imposed. in view of the above, it isdifficult for us to hold that the pollution fine can beimposed upon m/s span motel without there being any trialand without there being any finding that m/s span motel wasguilty of the offence under the act and are, therefore,liable to be punished with imprisonment or with fine. thisnotice has been issued without reference to any provision ofthe act. the contention that the notice should be treatedto have been issued in exercise of power under article 142of the constitution cannot be accepted as this articlecannot be pressed into aid in a situation where action underthat article would amount to contravention of the specificprovisions of the act itself. a fine is to be imposed uponthe person who is found guilty of having contravened any ofthe provisions of the act. he has to be tried for thespecific offence and then on being found guilty, he may bepunished either by sentencing him to undergo imprisonmentfor the period contemplated by the act or with fine or withboth. but recourse cannot be taken to article 142 toinflict upon him this punishment. the scope of article 142was considered in several decisions and recently in supremecourt bar association vs. union of india, air 1998 sc 1895= (1998) 4 scc 409, by which the decision of this court inv.c. mishra, re, (1995) 2 scc 584, was partly overruled, itwas held that the plenary power of this court under article142 of the constitution are inherent in the court and are"complementary" to those powers which arespecificallyconferred on the court by various statutes. this powerexists as a separate and independent basis of jurisdictionapart from the statutes. the court further observedthat
though the powers conferred on the court by article 142 arecurative in nature, they cannot be construed as powers whichauthorise the court to ignore the substantive rights of alitigant. the court further observed that this power cannotbe used to "supplant" substantive law applicable to the caseor cause under consideration of the court. article 142,even with the width of its amplitude, cannot be used tobuild a new edifice where none existed earlier, by ignoringexpress statutory provisions dealing with a subject andthereby achieve something indirectly which cannot beachieved directly. similarly, in m.s. ahlawat vs. unionof india & anr., air 2000 sc 168 = (2000) 1 scc 278, it washeld that under article 142 of the constitution, the supremecourt cannot altogether ignore the substantive provisions ofa statute and pass orders concerning an issue which can besettled only through a mechanism prescribed in anotherstatute. thus, in addition to the damages which have to bepaid by m/s span motel, as directed in the main judgment, itcannot be punished with fine unless the entire procedureprescribed under the act is followed and m/s span motel aretried for any of the offences contemplated by the act and isfound guilty. the notice issued to m/s span motel whypollution fine be not imposed upon them is, therefore,withdrawn. but the matter does not end here. pollution isa civil wrong. by its very nature, it is a tort committedagainst the community as a whole. a person, therefore, whois guilty of causing pollution has to pay damages(compensation) for restoration of the environment andecology. he has also to pay damages to those who havesuffered loss on account of the act of the offender. thepowers of this court under article 32 are not restricted andit can award damages in a pil or a writ petition as has beenheld in a series of decisions. in addition to damagesaforesaid, the person guilty of causing pollution can alsobe held liable to pay exemplary damages so that it may actas a deterrent for others not to cause pollution in anymanner. unfortunately, notice for exmeplary damages was notissued to m/s span motel although it ought to have beenissued. the considerations for which "fine" can be imposedupon a person guilty of committing an offence are differentfrom those on the basis of which exemplary damages can beawarded. while withdrawing the notice for payment ofpollution fine, we direct a fresh notice be issued to m/sspan motel to show cause why in addition to damages,exemplary damages be not awarded for having committed theacts set out and detailed in the main judgment. this noticeshall be returnable within six weeks. this question shallbe heard at the time of quantification of damages under themain judgment.
petitioner:m.c. mehta versus
vs.
respondent:union of india & others
date of judgment: 31/08/1999
bench:s s ahmad, m jagannadha rao
judgment:
d e r
m.jagannadha rao,j.
this application has been filed by the gas authorityof india limited (for short `gail') for the followingreliefs:
"(a) extend the schedule for supply of gas toindustries in zone-i of agra city, laid down vide the orderdated 3/04/98 passed by this hon'ble court in such a mannerthat in respect of cupola based industries supply of gas bygail coincides with the readiness of the consumer industriesto draw gas;
(b) direct non-cupola based industries in zone-i ofagra to draw gas latest by september, 1999;
(c) direct the secretary, pwd, government of uttarpradesh, and secretary/director general, government ofindia, ministry of surface transport to grant the permissionfor underpinning the gas pipeline to the yamuna road bridgewithin four weeks so that gail may be able to the schedulefor supply of gas to zone-ii and iii laid down by thishon'ble court vide its order dated 3/04/98."
the first relief concerns zone-i and the second reliefconcerns zone-ii andiii in the city of agra. we shallfirst deal with zone-i and thereafter with zone ii and iii.zone i. on 3.4.1998, this court directed the gail that itshould start supply of natural gas to the industries inzone-i from july, 1998 so as to make available gas to thespecified industries by december, 1998. it is now stated bygail that till december, 1998, 115 consumers out of 168(referred to the order of this court dated 30.12.96) alonehad contacted gail for supply of natural gas. otherindustries in zone-i did not contact gail. it was statedthat gail had made gas available in april, 1998 to its firstconsumer in may, 1998 and that by september, 1998, gail hadcompleted gas pipeline network to supply gas to all the 115consumers with whom it had entered into a contract in zone-i. the complaint is that 79 out of these 115 consumers arenot coming forward in zone-i and are cupola based ironfoundries. the rest are non cupola. all these 115 hadgiven an undertaking earlier to receive natural gas fromgail. these 79 industries have been awaiting the technologyto be developed by the national metallurgical laboratory(hereinafter called the `nml') for conversion to naturalgas. gail feels that there is likelihood of delay in thedrawal of gas by the 79 cupola based iron foundries inzone-i by the target dated 31.12.1998. only 4 cupola based- customers are likely to draw gas by december, 1998.
on 12.4.1999, this court issued notice to 79industries in zone-i requiring them to show cause why theywere not availing of the gas facility to be supplied bygail. they were also asked to state why they did not wantto draw the gas and why their industries should not be
allowed to be closed down.
on 5.4.1999, an affidavit of the agra iron foundingassociation has been filed stating that 78 (and not 79) werecupola based (item 74 diwan chand suraj prakash jain is notcupola based). the affidavit is filed on behalf of 78cupola based industries. they admit that on 30.12.1996, inm.c.mehta vs.union of india 1997 (2) scc 353, orders havebeen passed recording the undertaking on behalf of theseindustries for receiving gas as industrial fuel. they thenrefer to the chronology of the steps taken by them bonafidefor conversion by approaching nml and tata-korf and theirspending huge sums of money in that connection. they statethat the problem is that fool-proof technology for these 78industries to use natural gas is not yet ready, though nowit is in the last stages of completion, -through the effortsof nml of tata-korf who have been working on a project. assoon as the technology is available, the 78 industries willswitch-over to natural gas. they rely on the extensiongranted to gail earlier upto december, 1998 as the cause fordelay in switching over. nml has conducted 10 trials on itsnew technology but these tests have not been initiallysuccessful. the 78 industries have entered into agreementwith gail agreeing to switch over to natural gas and havepaid rs.2 lakhs as security and given rs.6 lakhsguarantee/indemnity. they have paid rs.14 lakhs to tatakorf in january, 1998. on 6.2.1998 nml and tata korfvisited agra and on 10.2.78, the association placed orderswith tata korf for supply of the technology. on 19.3.1998,the association has entered into agreement with tata korfunder which rs.20 lakhs have been paid as advance out ofrs.40 lakhs. know how has been agreed to be provided by31.7.1999 but the trial runs have failed. a chart is filedin this behalf. in all, 32 lakhs have been paid to tatakorf. on 22.4.1999, there has been a meeting with tata-korf. all these steps have been taken during 1997, 1998upto 22.4.1999.
on 26.4.1999, tata korf has written to the associationthat the commissioning of the cupola and stabilizing thesame will take place in 1st part of july, 1999 and theyexpect "to receive the orders" from the association in july,1999 after the cupola is successfully worked to thesatisfaction of the association. the schedule of supply ofcupola is:
(a) 10 cupolas in 4 months
(b) in each month 5-6 cupolas can be completed.
after installation, those cupolas require fine tuning.
on 3.8.1999, tata korf has written to the associationthat they had installed the new instrumentation successfullyon 15.6.1999. some more heats have to be developed. thedemonstration unit will be established fully by end ofseptember, 1999. same schedule of supply as stated earlieris given.
we have heard learned senior counsel sri v.r.reddy forgail and sri sanjay parikh for the association. we havealso heard sri krishan mahajan and sri vijay panjwani.learned counsel sri krishan mahajan has suggested that these78 industries have been dodging and procrastinating inshifting to natural gas and that as per the orders of thiscourt dated 30.12.1996 in m.c.mehta vs. union of india 1997(2) scc 353, direction no. 5 requires that once the gail isready, the industries, if they did not convert to naturalgas, they have to close down. now gail has been ready forsupply of natural gas in september 1999 and at any rate bydecember, 1999 in respect of all the 115 industries who haveagreed to convert to gas. inasmuch as these 78 industrieshave not become ready to convert, they are liable to beclosed down forthwith.
on the other hand, learned counsel for the associationsri sanjay parikh has contended that in view of the abovesteps taken by the industries during 1997, 1998 and 1999 asnarrated earlier, the stage is now set for switch over andthat it will create great hardship if the industries are tobe directed to be closed down now. summarising theposition, it is as follows. the correspondence between theassociation and nml and tata korf, it shows that by end ofseptember, 1999, the demonstration unit will be established.thereafter, cupola will be supplied - 10 in 4 months andthen in each month, 5 or 6 cupolas will be supplied. now,going by the date september, 1999, it looks as if 10 cupolaunits will be supplied by january, 2000 ( i.e. in 4 months) and by the time all these 78 cupola industries change overto gas, ( as per the time schedule given by tata korf) itwill be another 17 months - which will take us to july,2001. this will be the time span on the assumption thatconversion to natural gas will be started by these 78industries after september, 1999.
now in the orders of this court dated 30.12.1996, thedirections (4) and (5) read as follows: (at p.304):
"(4). those industries which neither apply for gasconnection nor for alternative industrial plot shall stopfunctioning with the aid of coke/coal in the ttz w.e.f.
april 30, 1997. supply of coke/coal to these industriesshall be stopped forthwith. the district magistrate and thesuperintendent of police shall have this order compliedwith.
(5) the gail shall commence supply of gas to theindustries by june 30, 1997. as soon as the gas supply toan industry commences, the supply of coke/coal to the saidindustry shall be stopped with immediate effect."
in the above background, the question is whether these78 cupola industries are to be allowed to function oncoal/coke without receiving natural gas. so far as theremaining non-cupola industries which are 37 (out of 115)who have contracted to draw, there is no reason why theyhave not accepted the supply of natural gas. out of these,we are told only 8 industries were drawing natural gas. therest 29 have been obviously taking it easy. we can dividethe discussion into the various categories as follows: (1)the overall total was 168 and only 115 have entered intoagreement with gail. therefore, so far as the remaining(168-115) = 53 iron foundries are concerned, there is nojustification for them to function - unless they haveshifted out - and under clause 4 of the order dated30.12.1996 of this court, the said 53 iron foundries arealready liable to be closed. if they have not shifted,these 53 industries must stop forthwith as they have actedin breach of direction no.4. (2) so far as the 29non-cupola industriesout of 115 (excluding 8 which haveswitched over to gas), there can be no difficulty inapplying clause 5 of the order of this court. if by15.9.1999, these 29 industries do not accept gas, clause 5of the order dated 30.12.1996 shall apply forthwith to them.
(3) so far as the 78 cupola based industries areconcerned, the question is what order is to be passed? wehave shown that even if the conversion starts from october,1999, the time frame for all the 78 industries will beeasily 21 months - which will take us to july 2001. thiscourt has given enough time to these industries right from31.12.1996. we do not mean to say that they have not takensome steps for conversion but if the tata korf time-schedulecan give the conversion technology to all the 78 of them atthe earliest only by july 2001, the question is whetherthese 78 coke/coal based industries which are continuouslyusing coke/coal can be allowed to pollute the air in andaround the taj trapezium and also whether they are to beallowed such a long period upto july 2001. we cannot losesight of the fact that gail has completed its obligation tobe ready, even by september, 1998. no doubt, even now, as
stated by counsel, these 78 industries are prepared to standby the undertaking given by them to to this court to receivenatural gas. in our view, having regard to the fact thatthe conversion of all these 78 cupola based industries islikely to be not completed till july, 2001 - it will be amatter of grave concern if the atmospheric pollution(asnoted in the neeri and dr. varadarajan reports and ourearlier orders) is allowed to continue. question is notstrictly whether the 78 industries have or have not actedbonafide in making some efforts for conversion to naturalgas but assuming they have taken some steps, the question iswhether the danger to the environment does not requireurgent action. the data already collected shows high levelsof pollution in agra in this area affecting the environmentin the ttz area.
in the circumstances, we are of the view that there isno other way to deal with the situation than to apply clause(5) of the order of this court dated 30.12.1996 set outabove, strictly to these 78 cupola based industries. we areconscious that any order to stop supply of coke/coal to the78 coke/coal based iron foundries will result in the closingdown of these 78 industries for some time, before they areable to switch on to natural gas. obviously, the closurewill have not be permanent one but of a temporary nature.there will be no difficulty in permitting them to re-open assoon as they have the cupola conversion technology installedin their respective industries. we are, therefore,compelled to put clause (5) of the order of this court intofull effect in respect of these 78 industries w.e.f.15.9.1999. in the result, we direct as follows:- (1) out of168, 53 iron foundries which have not agreed to accept gashave to be closed forthwith, if not already closed as perorders of this court dated 30.12.1996 unless they haveshifted. the district magistrate and superintendent ofpolice, agra shall take action accordingly. (2)(i) out of115 which have opted and entered into agreements with gail,37 are non-cupola based and among the 8 have converted tonatural gas while in respect of the remaining 29 non-cupolaindustries. clause (5) of the order of this court dated30.12.96 shall come into operation w.e.f. 15.9.1999, forthey have no excuse for not accepting the natural gas fromgail. the district magistrate and superintendent of police,agra will take steps to close down these industries by15.9.1999. (ii) however, as and when these 29 non-cupolaindustries take steps to receive gas, they shall be allowedto function. (3)(i) in respect of the remaining 78, whichare cupola based, in view of the reasons given above, clause(5) of the order dated 30.12.96 of this court will come intooperation w.e.f. 15.9.1999. that will mean that in respectof these 78 iron founding industries, the district
magistrate, agra and the superintendent of police, agra willhave to see to it that no coal/coke is supplied to themafter 15.9.1999.
(ii) out of the 78 cupola based iron foundries, as andwhen any of them gets converted to natural gas and takessteps to receive gas from gail, they will be allowed tofunction. we dispose of the ia in respect of zone-iaccordingly. copy to be communicated to district magistrateand superintendent of police, agra.
gail and sri krishan mahajan are requested to furnisha list of the respective industries to the above officialsin a week. zone ii & zone iii
so far as zone ii and zone iii are concerned, a numberof affidavits have been filed by the gail and one by thegovernment of india. as the matter is to be adjourned, wedo not propose to give a detailed order. sri v.r.reddy,learned senior counsel for gail has placed before us thecorrespondence and contended that, by its affidavit, theunion of india appears to have in principle, accepted that apipeline can be allowed to be laid along the old yamunabridge but that the union of india want to put gail onnotice that, inasmuch as the old bridge may require to bedismantled bygovernment, - gail must be prepared to goahead with laying down the pipeline with that possibility ofthe old bridge being dismantled. sri reddy however pointsout that there are reports of some technical experts thatthe old bridge need not be dismantled in the near future.he contends that, unfortunately, the government of india hasnot so far applied its mind to these reports and thereforeit has to take a final decision in the matter of dismantlingof the old yamuna bridge, after considering these reports.learned senior counsel contends that appropriate directionsbe given to the union of india in this behalf. in view ofthe above contention, we direct the union of india toexamine the expert reports given in connection with thedismantling of the old bridge and take a final decision inregard to the same and give its response to this court byway of affidavit so that gail can take a decision as to thelaying of its pipeline for supply of natural gas to zones iiand iii. response of union of india to be filed within fourweeks. thus, we dispose of this i.a. so far as zone i isconcerned. the i.a. now remains pending in respect of zoneii and iii. list i.a. after four weeks.
petitioner:vellore citizens welfare forum
vs.
respondent:union of india & ors.
date of judgment: 28/08/1996
bench:kuldip singh, faizan uddin, k. venkataswami
act:
headnote:
judgment:the 28th day of august, 1996
present: hon'ble mr. justice kuldip singh
hon'ble mr. justice faizan uddin hon'ble mr, justice k. venkataswami
r. mohan, v.a. bobde, kapil sibal, m.r. sharma,v.c. mahajan, and s.s. ray, sr. advs., k.r.r. pillai,m.c. mehta, ms. seema midha, v.g. pragasam, vijay panjwani,s. sukumaran, sudhir walia, a.t.m. sampath,m.s. dahiya,(sudhir walia, roy abraham, advs. for sm. babykrishna, p. sukumar, praveen kumar, romesh c. pathakm.a. krishnamurthy, v. krishnamurthy, mrs. anil katiyar,ms. indra sawhney, deepak diwan, s.m, jadhev, a.v. rangam,zafarullah khan, shahid rizvi, shakil ahmed syed, jaideepgupta and sanjay hegde, advs. with them for the appearingparties.
j u d g m e n t the following judgment of the court was delivered:
j u d g m e n tkuldip singh, j.. this petition - public interest - under article 32 ofthe constitution of india has been filed by vellore citizenswelfare forum and is directed against the pollution which isbeing caused by enormous discharge of untreated effluent bythe tanneries and other industries in the state of tamilnadu . it is stated that the tanneries are discharginguntreated effluent into agricultural fields to, road-sides,water ways and open lands. the untreated effluent is finallydischarged in river palar which is the main source of watersupply to the residents of the area. according to thepetitioner the entire surface and sub-soil water of riverpalar has been polluted resulting in non availabilitypotable water to the residents of the area. it is statedthat the tanneries in the state of tamil nadu have causedenvironmental degradation in the area. according to thepreliminary survey made by the tamil nadu agriculturaluniversity research center vellore nearly 35,000 hectares ofagricultural land in the tanneries belt, has become eitherpartially or totally unfit for cultivation. it has beenfurther stated in the petition that the tanneries use about170 types of chemicals in the chrome tanning processes. thesaid chemicals include sodium chloride, lime, sodiumsulphate, chlorium sulphate, fat liquor amonia and sulphuricacid besides dyes which are used in large quantities. nearly35 litres of water is used for processing one kilogram offinished leather, resulting in dangerously enormousquantities of toxic effluents being let out in the open bythe tanning industry. these effluents have spoiled thephysico-chemical properties of the soil, and havecontaminated ground water by percolation. according to thepetitioner an independent survey conducted by peace members,a non governmental organisation, covering 13 villages ofdindigal and peddiar chatram anchayat unions, reveals that350 wells out of total of 467 used for drinking and
irrigation purposes have been polluted. women and childrenhave to walk miles to get drinking water. legal aid andadvice board of tamil nadu requested two lawyers namely,m.r, ramanan and p.s. subramanium to visit the area andsubmit a report indicating the extent of pollution caused bythe tanneries. relevant part of the report is as under : "as per the technical report dated 28.5.1983 of the hydrological investigations carried out in solur village near ambur it was noticed that 176 chemicals including acids were contained in the tannery effluents. if 40 litres of water with chemicals are required for one kilo of leather, with the production of 200 tons of leather per day at present and likely to be increased multifold in the next four to five years with the springing up of more tanneries like mushroom in and around ambur town, the magnitude of the effluent water used with chemicals and acids let out daily can be shockingly imagined. ..... the effluents are let out from the tanneries in the nearby lands, then to goodar and palar rivers. the lands, the rivulet and the river receive the effluents containing toxic chemicals and acids. the sub soil water is polluted ultimately affecting not only arable lands, wells used for agriculture but also drinking water wells. the entire ambur town and the villages situated nearby do not have good drinking water. some of the influential and rich people are able to get drinking water from a far off place connected by a few pipes. during rainy days and floods, the chemicals deposited into the rivers and lands spread out quickly to other lands. the effluents thus let out, affect cultivation, either crops do not come up at all or if produced the yield is reduced abnormally too low. ........ the tanners have come to stay. the industry is a
foreign exchange earner. but one moot point is whether all the cost of the lives of lakhs of people with increasing human population the activities of the tanneries should be encouraged on monetary considerations. we find that the tanners have absolutely no regard for the healthy environment in and around their tanneries. the effluents discharged have been stored like a pond openly in the most of the places adjacent to cultivable lands with easy access for the animals and the people. the ambur municipality, which can exercise its powers as per the provisions of the madras district municipalities act (1920) more particularly under sections 226 to 231, 249 to 253 and 338 to 342 seems to be a silent spectator probably it does not want to antagomise the highly influential and stupendously rich tanners. the powers given under section 63 of the water prevention and control of pollution act 1974 (6 of 1974) have not been exercised in the case of tanneries in ambur and the surrounding areas." alongwith the affidavit dated july 21, 1992 filed bydeputy secretary to government, environment and forestsdepartment of tamil nadu, a list of villages affected by thetanneries has been attached. the list mentions 59 villagesin the three divisions of thirupathur, vellore and ranipath.there is acute shortage of drinking water in these 59villages and as such alternative arrangements were beingmade by the government for the supply of drinking water. in the affidavit dated january 9, 1992 filed by membersecretary, tamil nadu pollution control board (the board),it has been stated as under : "it is submitted that there are 584 tanneries in north arcot ambedkar district vide annexure 'a' and 'd'. out of which 443 tanneries have applied for consent of the board. the government were concerned with the treatment and disposal of effluent from tanneries. the government gave time upto 31.7.1985
to tanneries to put up effluent treatment plant (e.t.p.). so far 33 tanneries in north arcot ambedkar district have put up effluent treatment plant. the board has stipulated standards for the effluent to be disposed by the tanneries." the affidavits filed on behalf of state of tamil naduand the board clearly indicate that the tanneries and otherpolluting industries in the state of tamil nadu are beingpersuaded for the last about 10 years to control thepollution generated by them. they were given option eitherto construct common effluent treatment plants for a clusterof industries or to set up individual pollution controldevices. the central government agreed to give substantialsubsidy for the construction of common effluent treatmentplants (cetps). it is a pity that till date most of thetanneries operating in the state of tamil nadu have nottaken any step to control the pollution caused by thedischarge of effluent. this court on may 1, 1995 passed adetailed order. in the said order this court noticed variousearlier orders passed by this court and finally directed asunder : "mr. r. mohan, learned senior counsel for the tamil nadu pollution control board has placed before us a consolidated statement dividing the 553 industries into three parts. the first part in statement no.1 and the second part in statement no.2 relate to those tanneries who have set up the effluent treatment plants either individually or collectively to the satisfaction of the tamil nadu pollution control board. according to the report placed on the record by the board, these industries in statements 1 and 2 have not achieved the standard or have not started functioning to the satisfaction of the board. so far as the industries in statements 1 and 2 are concerned, we give them three months notice from today to complete the setting up of effluent treatment plant (either individually or collectively) failing which they shall be liable to pollution fine on the basis of
their past working and also liable to be closed. we direct the tamil nadu pollution control board to issue individual notices to all these industries within two weeks from today. the board is also directed to issue a general notice on three consecutive days in a local newspaper which has circulation in the district concerned. so far as the 57 tanneries listed in statement iii (including 12 industries who have filed writ petition, nos. of which have been given above) are concerned, these units have not installed and commissioned the effluent treatment plants despite various orders issued by this court from time to time. mr. r. mohan, learned senior counsel appearing for tamil nadu pollution control board states that the board has issued separate notices to these units directing them to set up the effluent treatment plants. keeping in view the fact that this court has been monitoring the matter for the last about four years and various orders have been issued by this court from time to time, there is no justification to grant any further time to these industries. we, therefore, direct the- 57 industries listed hereunder to be closed with immediate effect. ...... we direct the district collector and the senior superintendent of police of the district to have our orders complied with immediately. both these officers shall file a report in this court within one week of the receipt of the order. we give opportunity to these 57 industries to approach this ' court as and when any steps towards the setting up of effluent treatment plants their plants and their commissioning have been taken by
these industries. if any of the industries wish to be relocated to some other area they may come out with a proposal in that respect : on july 28,1995 this court suspended the closure orderin respect or seven industries mentioned therein for aperiod of eight weeks. it was further observed as under: "mr. g . ramaswamy, learned senior advocate appearing for some of the tanneries in madras states that the setting up of the effluent treatment plants is progressing satisfactorily. according to him several lacs have already been spent and in a short time it would start operating. mr. mohan, learned counsel for the tamil nadu pollution control board will inspect that project and file a report by 3rd august, 1995". this court on september 8, 1995 passed the followingorder : "the tamil nadu pollution control board relates to about 299 industries stated by m.g. ramaswamy, mr. kapil sibal and mr. sanghi, learned senior advocates appearing f for these industries, that the setting up of projects is in progress. according to the learned counsel tamil nadu leather development corporation (talco) is in charge of the project. the learned counsel state that the project shall be completed in every respect within 3 months from today. the details of these industries and the projects undertaken by talco as per list no. i is as under...... we are of the view that it would be in the interest of justice to give a little more time to these industries to complete the project. although the industries have asked time for three months, we give them time till 31st december, 1995. we make it clear that in case the projects are not completed by that time, the industries shall be liable to be to be closed forthwith. apart from
that, these industries shall also be liable to pollution fine for the past. period during which they had been operating. we also take this opportunity to direct talco to take full interest in these projects and have the projects completed within the time granted by us. mr. kapil sibal, learned counsel appearing for the tanneries, stated that council, for indian finished leather manufacturers export association is a body which is collecting 5% on all exports. this body also helps the tanneries in various respect. we issue notice to the association to be present in this court and assist this court in all the matters pertaining to the leather tanneries in madras. mr. sampath takes notice . so far as list no. ii is concerned, it relates to about 163 tanneries (except m/s. vibgyor tanners & co., kailasagiri roads, mittalam-635 811 ambur (via), the pollution control board has inspected all these tanneries and placed its report before us. according to the report mosts of these tanneries have not even started primary work at spot. some of them have not even located the land. the tanneries should have themselves set, up the pollution control devices right at time when they started working. they have not done so. they are not even listening to various orders passed by this court from time to time during the last more than 2 years. it is on the record that these tanneries are polluting the area. even the water around the area where they are operating is not worth drinking. we give no further time to these tanneries. we direct all the following tanneries which are numbering about 162 to be closed with immediate effect. it may be mentioned that this court suspended theclosure orders in respect of various industries from time to
time enable the said industries to install the pollutioncontrol devices. this court by the order dated october 20, 1995 directedthe national environmental engineering research institute,nagpur (neeri) to send a team of experts to examine, inparticular, the feasibility of setting up of cetps forcluster of tanneries situated at, different places in, thestate of tamil nadu where the work of setting up of thecetps has not started and also to inspect the existing cetpsincluding those where construction work was in progress .neeri submitted its first report on december 9, 1995 and thesecond report on february 12, 1996. this court examined thetwo reports and passed the following order on april 9, 1996: "pursuant to this court's order dated december 15, 1955, neeri has submitted final examination report dated february 12, 1996, regarding cetps constructed/under construction by the tanneries in various districts of the state of tamil nadu. a four member team constituted by the director, neerj inspected the cetps from january 27 to february 12, 1996. according to the report, at present, 30 cetps sites have been identified for tannery clusters in the five districts of tamil nadu viz., north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r. all the 30 cetps are inspected by the team. according to the report, only 7 cetps are under operation, while 10 are under construction and 13 are proposed. the following 7 etps are under operation: 1. m/s. talco ranipet tannery effluent treatment co. ltd. ranipet, dist. north arcot ambedkar. 2. m/s. talco ambur tannery effluent treatment co. ltd., thuthipet sector, ambur dist. north arcot ambedkar. 3. m/s. talco vaniyambadi tanners enviro control systems ltd., vaniyambattu, vaniyambadi, dt. north arcot. 4. m/s. pallavaram tanners industrial effluent treatment co.,
chrompet area, dist. chengai) mgr. 5. m/s. ranipet sidco finished leather effluent treatment co. pvt. ltd., ranipet, dist. north arcot ambedkar. 6. m/s. talco vaniyambadi tanners enviro control systems ltd. udayendiram, vaniyambadi, dist. north arcot ambedkar. 7. m/s. talco pernambut tannery effluent treatment co. ltd., bakkalapalli, pernambut, dist. north arcot ambedkar. the cetps mentioned at sl. nos. 5, 6 & 7 were commissioned in january, 1996 and were on the date of report passing through stabilization period. the report indicates that so far as the above cetps are concerned, although there is improvement in the performance they are still not operating at their optimal level and are not meeting the standards as laid down by the ministry of environment and forests and the tamil nadu pollution control board for inland surface water discharge. the neeri has given various recommendations to be followed by the above mentioned units. we direct the units to comply with the recommendations of neeri within two months from today. the tamil nadu pollution control board shall monitor the directions and have the recommendations of the neeri complied with. so far as the three units which are under stabilization, the neeri team may inspect the same and place a final report before this court within the period of two months. apart from the tanneries which are connected with the above mentioned 7 units, there are large number of other tanneries operating in the 5 districts mentioned above which have not set up any satisfactory pollution control devices. mr. mohan learned counsel for the tamil nadu pollution control board states
that notices were issued to all those tanneries from time to time directing them to set up the necessary pollution control devices. it is mandatory for the tanneries to set up the pollution control devices. despite notices it has not been done. this court has been monitoring these matters for the last about 4 years. there is no awakening or realisation to control the pollution which is being generated by these tanneries. the neeri has indicated the physico-chemical characteristics of ground water from dug wells near tannery clusters. according to the report, water samples show that well-waters around the tanneries are unfit for drinking. the report also shows that the that the quality of water in paler river down stream from the place where effluent is discharged, is highly polluted. we, therefore, direct that all the tanneries in the districts of north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r which are not connected with the seven cetps mentioned above, shall be closed with immediate effect. none of these tanneries shall be permitted to operate till the time the cetps are constructed to the satisfaction of the tamil nadu pollution control board. we direct the district magistrate and the superintendent of police of the area concerned, to have all these tanneries closed with immediate effect. mr. mehta has placed on record the report of tamil nadu pollution control board. in statement i of the index, there is a list of 30 industries which have also not been connected with any cetps. according to the report, these industries have not, till date set up pollution control devices. we direct the closure of these industries also. list is as
under. ..... the tamil nadu pollution control] board has filed another report dated january 18, 1996 pertaining to 51 tanneries. there is dispute regarding the permissible limit of the quantity of total dissolved solids (tds). since the neeri team is visiting these tanneries, they may examine the tds aspect also and advise this court accordingly. meanwhile, we do not propose to close any of the tannery on the ground that it is discharging more than 2001 tds. the report indicates that except the 17 units, all other units are non-complaint units in the sense that they are not complying with the bod standards. excepting these 17 industries the remaining 34 tanneries listed hereunder are directed to be closed forthwith. ..... we direct the district magistrate and the superintendent of the police of the area concerned to have all these industries mentioned above closed forthwith the tanneries in the 5 districts of tamil nadu referred to in this order have been operating for a longtime. some of the tanneries are operating for a period of- more than two decades. all this period these tanneries have been, polluting the area. needless to say that the total environment in the area has been polluted the area. needless issue show cause notice to these industries through their learned counsel who are present in court why they be not subjected to heavy pollution fine. we direct the state of tamil nadu through the industry ministry, the tamil nadu pollution central board and all other authorities concerned and also the government of india through the ministry of environment and forests not to permit the setting up of further tanneries in the state of tamil nadu.
copy of this order be communicated to the concerned authorities within three days. to come up for further consideration after the replies to the show cause. there are large number of tanneries in the state of tamil nadu which have set up individual pollution control devices and which according to the tamil nadu pollution control board are operating satisfactorily. the fact however remains that all these tanneries are discharging the treated efficient within the factory precinct itself. we direct neeri team which is visiting this area to find out as to whether the discharge of the effluent on the land within the factory premises is permissible environmentally. m/s. nandeem tanning company, valayampet vaniyambadi is one is one of such industries. copy of the report submitted by the tamil nadu pollution control board be forwarded to the neeri. neeri may inspect this industry within ten days and file a report in this court. copy of this order be communicated to neeri. matter regarding distilleries in the state of tamil nadu. the tamil nadu pollution control board has placed on record the factual report regarding distilleries mentioned in page 4 of the index of its report dated april 5, 1996. learned counsel for the board states that the board shall issue necessary notices to these industries to set up pollution control devices to the satisfaction of the board, failing which these distilleries shall be closed. the pollution control board shall place a status report before this court." the neeri submitted two further reports on may 1, 1996and june 11, 1996 in respect of cetps set up by variousindustries. the neeri reports indicate that the physico-chemical characteristics of ground water from dug wells inranipath, thuthipath, valayambattu, vandyambadi and various
other places do not conform to the limits prescribed fordrinking purposes. this court has been monitoring this petition for almostfive years. the neeri, board and the central pollutioncontrol board (central board) have visited the tanning andother industries in the state of tamil nadu for severaltimes. these expert bodies have offered all possibleassistance to these industries. the neeri reports indicatethat even the seven operational cetps are not functioning toits satisfaction. neeri has made several recommendations tobe followed by the operational cetps. out of the 30 cetp-sites which have been identified for tannery clusters in thefive districts of north arcot ambedkar, erode periyar,dindigul anna, thrichi and chengai mgr. are under operation10 are under construction and 13 are proposed. there arelarge number of tanneries which are not likely to beconnected with any cetp and are required to set up pollutioncontrol devices on their own. despite repeated extensionsgranted by this court during the last five years and priorto that by the board the tanneries in the state of tamilnadu have miserably failed to control the pollutiongenerated by them. it is no doubt correct that the leather industry inindia has become a major foreign exchange earner and atpresent tamil nadu is the leading exporter of finishedleather accounting for approximately 80% of the country'sexport. though the leather industry is of vital importanceto the country as it generates foreign exchange and providesemployment avenues it has no right to destroy the ecology,degrade the environment and pose as a health hazard. itcannot be permitted to expand or even to continue with thepresent production unless it tackles by itself the problemof pollution created by the said industry. the traditional concept that development and ecologyare opposed to each of her, is no longer acceptable."sustainable development is the answer. in the internationalsphere "sustainable development" as a concept came to beknown for the first time in the stockholm declaration of1972. thereafter, in 1987 the concept was given a definiteshape by the world commission on environment and developmentin its report called court common future. the commission waschaired by the then prime minister of norway ms. g.h.brundtland and as such the report is popularly known as"brundtland report" 1991 the world conservation union,united nations environment programme and world wide fund fornature, jointly came out with a document called "caring forthe earth" which is a strategy for sustainable living.finally, came the earth summit held in june, 1992 at riowhich saw the largest gathering of world leaders ever in thehistory - deliberating and chalking out a blue pring for thesurvival of the planet. among the tangible achievements of
the rio conference was the signing of two conventions, oneon biological diversity and another on climate change. theseconventions were signed by 153 nations. the delegates alsoapproved by consensus three non binding documents namely, astatement on forestry principles a declaration of principleson environmental policy and development and initiatives andagenda 21 a programme of action into the next century inareas like poverty, population and pollution. during the twodecades from stockholm to rio "sustainable development" andcame to be accepted as a viable concept to eradicate povertyand improve the quality of human life while living withinthe carrying capacity of the supporting eco-systems."sustainable development: as defined by the brundtlandreport means "development that meets the needs of thepresent without compromising the ability of the futuregenerations to meet their own needs". we have no hesitationin holding that "sustainable development' as a balancingconcept between eclogy and development has been accepted asa part of the customary international law though its salientfeature have yet to be finalised by the international lawjurists. some of the salient principles of "sustainabledevelopment", as culled-out from brundtland report and otherinternational documents, are inter-generational equity, useand conservation of nature resources, environmentalprotection, the precautionary principle, polluter paysprinciple, obligation to assist and cooperate, eradicationof poverty and financial assistance to the developingcountries. we are, however, of the vies that "theprecautionary principle" and "the polluter pays" principleare essential features of "sustainable development". the"precautionary principle" - in the context of the municipallaw - means.(i) environment measures - by the state government and the statutory authorities must anticipate, prevent' and attack the causes of environmental degradation.(ii) where there are threats of serious and irreversible damage lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation.(iii)the "onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign. "the polluter pays" principle has been held to be asound principle by this court indian council for enviro-legal action vs. union of india j.t. 1996 (2) 196. the courtobserved, "we are of the opinion that any principle evolvedin this 'behalf should be simple practical and suited to theconditions obtaining in this country". the court ruled that"once the activity carried on is hazardous or inherentlydangerous, the person carrying on such activity is liable to
make good the loss caused to any other person by hisactivity irrespective of the fact whether he took reasonablecare while carrying on his activity. the rule is premisedupon the very nature of the activity carried on".consequently the polluting industries are "absolutelyliable to compensate for the harm causedby them tovillagers in the affected area, to the soil and to theunderground water and hence, they are bound to take allnecessary measures to remove sludge and other pollutantslying in the affected areas". the "polluter pays" principleas interpreted by this court means that the absoluteliability for harm to the environment extends not only tocompensate the victims of pollution but also the cost ofrestoring the environmental degradation. remediation of thedamaged environment is part of the process of "sustainabledevelopment" and as such polluter is liable to pay the costto the individual sufferers as well as the cost of reversingthe damaged ecology. the precautionary principle and the polluter paysprinciple have been accepted as part of the law of the land.article 21 of the constitution of india guaranteesprotection of life and personal liberty. articles 47, 48aand 51a(g) of the constitution are as under: "47. duty of the state to raise the level of nutrition and the standard of living and to improve public health. the state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48a. (g) protection and improvement of environment and safeguarding of forests and wild life. the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51a.(g) to protect and improve the natural environment including forests, takes, rivers and wild life, and to have compassion for living creatures." apart from the constitutional mandate to protect andimprove the environment there are plenty of post
independence legislations on the subject but more relevantenactments for our purpose are: the water (prevention andcontrol of pollution act 1974 (the water act), the air(prevention and control of pollution) act, 1981 (the airact) and the environment protection act 1986 (theenvironment act). the water act provides for theconstitution of the central pollution control board by thecentral government and the constitution of one statepollution control boards by various state governments in thecountry. the boards function under the control of thegovernments concerned. the water act prohibits the use orstreams and wells fordisposal of polluting matters. alsoprovides for restrictions on outlets and discharge ofeffluents without obtaining consent from the board.prosecution and penalties have been provided which includesentence of imprisonment. the air act provides that thecentral pollution control board and the state pollutioncontrol boards constituted under the later act shall alsoperform the powers and functions under the air act. the mainfunction of the boards, under the air act, is to improve thequality of the air and to prevent. control and abate airpollution in the country. we shall deal with the environmentact in the later part of this judgement. in view of the above mentioned constitutional andstatutory provisions we have no hesitation in holding thatthe precautionary principle and the polluter pays pcincipleare part of the environmental law of the country. even otherwise once these principles are accepted aspart of the customary international law there would be nodifficultly in accepting them as part of the domestic law.it is almost accepted proposition of law that the rule ofcustomary international law which are not contrary to themunicipal law shall be deemed to have been incorporated inthe domestic law and shall be followed by the courts of law.to support we may refer to justice h.r. khanna's opinion inaddl. distt. magistrate jabalpur vs shivakant shukla (air1976 sc 1207) jolly george varghese's case (air 1980 sc 470)and gramophone company's case (air 1984 sc 667). the constitutional and statutory provision protect apersons right to fresh air, clean water and pollution freeenvironment, but the source of the right is the inalienablecommon law right of clean environment. it would be useful toquote a paragraph from blackstone's commentaries on the lawsof england (commentaries on the laws of england of sirwillian blackstone) vol.iii, fourth edition published in1876. chapter xiii, "of nuisance" depicts the law on thesubject in the following words : "also, if a person keeps his hogs, or other noisome animals, 'or allows filth to accumulate on his premises, so near the house of
another, that the stench incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. a like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, sic utere "tuo, ut alienum non laedas;" this therefore is an actionable nuisance. 'and on a similar principle a constant ringing of bells in one's immediate neighbourhood may be a nuisance ....... with regard to other corporeal heriditaments; it is a nuisance to stop or divert water that used to run to another's meadow or mill; to corrupt or poison a water-course, by erecting a due house or a lime-pit, for the use of trade, in the upper part of the stream; 'to pollute a pond. from which another is entitled to water his cattle: to obstruct a drain; or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice of one's neighbour. so closely does the law of england enforce that excellant rule of gospel-morality, of "doing to others. as we would they should do unto ourselves ." our legal system having been founded on the britishcommon law the right of a person to pollution freeenvironment isa part of the basic jurisprudence of theland. the statement of objects and reasons to the environmentact, inter alia, states as under : "the decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains,
growing risks of environmental accidents and threats to life support systems. the world community's resolves to protect and enhance the environmental quality found expression in the decisions taken at the united nations conference on the human environment held in stock hold in june, 1972. government of india participated in the conference and strongly voiced the environmental concerns. while several measures have been taken for environmental protection both before and after the conference, the need for a general legislation further to implement the decisions of the conference has become increasingly evident ...... existing lass generally focus on specific types of pollution or on specific categories of hazardous substances. somemajor areas of environmental hazardous are not covered. there also exist uncovered gaps in areas of major environmental hazards. there are inadequate linkages in handling matters of industrial and environmental safety. control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. because of a multiplicity of regulatory agencies, there is need for an authority which can. assume the lead role for studying, planning and implementing long-term requirements of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment ...... in view of what has been state above, there is urgent need for the enactment of a general legislation on environmental protection which inter alia, should enable co- ordination of activities of the
various regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterent punishment to those who endanger human environment, safety and health". sections 3, 4, 5, 7 and 8 of the environment act whichare relevant are as under : "3. power of central government to take measures to protect and improve environment - (1) subject to the provisions of this act the central, government shall have till power to take all such measures as it deems necessary or expedient for the purpose of protecting improving the quality of the environment and preventing controlling and abating environmental pollution. (2) in particular, and without prejudice to the generality of the provisions of section (1), such measures may include measures with respect to all or any of the following matters, namely :- (i) co-ordination of actions by the state governments, officers and other authorities - (a) under tis act, or the rules made thereunder, or (b) under any other law for the time being in force which is relatable to the objects of this act; (ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution; (iii) laying down standards for the quality of environment in its various aspects; (iv) laying down standards for the emission or discharge of environmental pollutants from
various sources whatsoever : provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources : (v) restriction of areas in which any industries, operation or processes or class of industries, operations or processes shall not be carried out or shall be carried out object to certain safeguards; (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) lying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution; (x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, material or substances and giving, by order, of such direction to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; (xi) establishment or recognition or environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this act; (xii) collection and dissemination of information in respect of matters relating to
environmental pollution; (xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution; (xiv) such other matters as the central government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this act. (3) the central government may, if it considers it necessary or expedient so to do for the purposes of this act, by order, published in the powers and functions (including the power to issue directions under section 5 ) of the central government under this act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the central government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this act to exercise those powers or perform those functions or take such measures. 4. appointment or officers and their powers and functions (1) without prejudice to the provisions of sub-section (3) of section 3, the central government may appoint officers with such designations as it thinks fit for the purposes of this act and may entrust to them such of the powers and functions under this act as it may deem fit. (2) the officers appointed under sub-section (1) shall be subject to the general control and direction of the central government or, if so directed by that government, also of the authority or authorities, if any, constituted under sub-section
(3) of section 3 of any other authority or officer". 5. power to give directions. - notwithstanding anything contained in any other law but subject to the provisions of this act, the central government may, in the exercise of its powers and performance of its functions under this act, issue direction in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. explanation. - for the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct --- (a) the closure, prohibition or regulation of any industry, operation or process; or (b) stoppage or regulation of the supply of electricity or water or any other service. 7. persons carrying on industry, operation etc. not to allow emission or discharge of environmental pollutants in excess of the standards. 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. 8. persons handling hazardous substances to comply with procedural safeguards. - no person shall handle or cause to be handled any hazardous substance except in accordance with such procedure end after complying with such safeguards as may be prescribed".rule 3(1), 3(2), and 5(1) of the environment (protection)rules 1986 (the rules) are as under: "3. standards for emission or discharge of environmental pollutants. - (1) for the purposes of protecting and improving the quality of the environmental and
preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in schedule i to iv). 3(2) notwithstanding anything contained in sb-rule(l), the control board or a state board may specify more stringent standards from those provided in (schedule to iv) in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons, therefore, in writing. 5. prohibition and restriction on the location of industries and the carrying on processes and operations in different areas - (1) the central government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations an different areas : (i) standards for quality of environment in its various aspects laid down for an area. (ii) the maximum allowable limits of concentration of various environment pollutants (including noise) for an area. (iii) the likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. (iv) the topographic and climatic features of an area. (v) the biological diversity of the area which, in the opinion of the central government, needs to be preserved. (vi) environmentally compatible land use. (vii) net adverse environmental impact likely to be caused by an
industry, process or operation proposed to be prohibited or restricted. (viii) proximity to a protected area under the ancient monuments and archaeological sites and remains act, 1958 or a sanctuary, national park, game reserve or closed area notified, as such under the wild life (protection) act, 19/2, or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body. (ix) proximity to human settlements (x) any other factors as may be considered by the central government to be relevant to the protection of the environment in an area". it is thus obvious that the environment act containsuseful provisions for controlling pollution. the mainpurpose of the act is to create an authority or authoritiesunder section 3(3) of the act with adequate powers tocontrol pollution and protect the environment. it is a pitythat till date no authority has been constituted by thecentral government. the work which is required to be done byan authority in terms of section 3(3) read with otherprovision of the act is being done by this court and theother courts in the country. it is high time that thecentral government realises its responsibility and statutoryduty to protect the degrading environment in the country. ifthe conditions in the five districts of tamil nadu, wheretanneries are operating, are permitted to continue then inthe near future all rivers/canals shall be polluted,underground waters contaminated, agricultural lands turnedbarren and the residents of the area exposed to seriousdiseases. lt is, therefore, necessary for this court todirect the central government to take immediate action underthe provisions of the environment act. there are more than 900 tanneries operating in the fivedistricts of tamil nadu. some of them may, by now, haveinstalled the necessary pollution control measures, theyhave been polluting the environment for over a decade and insome cases even for a longer period. this court has invarious orders indicated that these tanneries are liable topay pollution fine. the polluters must compensate theaffected persons and also pay the cost of restoring the
damaged ecology. mr. m.c. mehta, learned counsel for the petitioner hasinvited our attention to the notification goms no. 213 datedmarch 30, 1989 which reads are under :"order :- in the government order first read above, the government have ordered, among other things, that no industry causing serious water pollution should be permitted with in one kilometer from the embankments of rivers, streams, dams etc, and that the tamil nadu pollution control board should furnish a list of such industries to all local bodies. it has been suggested that it is necessary to have a sharper definition for water sources so that ephemeral water collections like rein water ponds, drains, sewerages (bio-degradable) etc. may be excluded form the purview of the above order. the chairman, tamil nadu pollution control board has stated that the scope of the government order may be restricted to reservoirs, rivers and public drinking water sources. he has also stated that there should be a complete ban on location of highly polluting industries within 1 kilometer of certain water sources. 2. the government have carefully examined the above suggestions. the government impose a total ban on the setting up of the highly polluting industries mentioned in annexure - i to this order ' within one kilometer from the embankments of the water sources mentioned in annexure-ii to this order. 3. the government direct that under any circumstance if any highly polluting industry is proposed to be set up within one kilometer from the embankments of water sources other than those mentioned in annexure-ii to this order, the tamil nadu pollution control board should examine the case and obtain
the approval of the government for it". annexure-i to the notification includes distilleries,tanneries, fertilizer, steel plants and foundries as thehighly polluting industries. we have our doubts whether theabove quoted government order is being enforced by the tamilnadu government. the order has been issued to controlpollution and protect the environment. we are of the viewthat the order should be strictly enforced and no industrylisted in annexure-l to the order should be permitted to beset up in the prohibited area. learned counsel for the tanneries raised an objectionthat the standard regarding total dissolved solids (tds)fixed by the board was no. justified. this court by theorder date april 9, 1996 directed the neeri to examine thisaspect and give its opinion. in its report dated june 11,1996 neeri has justified the standards stipulated by theboard. the reasoning of the neeri given in its report datedjune 11, 1996 is as under: "the total dissolved solids in ambient water have phisiological, industrial and economic significance. the consumer acceptance of mineralized water decreases in direct proportion to increased mineralization as indicated by bruvold (1). high total dissolved solids (tds), including chlorides and sulphates, are objectionable due to possible physiological effect and mineral taste that they impart to water. high levels of total dissolved solids produce laxative/cathartic/purgative effect in consumers. the requirement of soap and other detergents in household and industry is directly related to water hardness as brought out by deboer and larsen (2). high concentration of mineral salts, particularly sulphates and chlorides, are also associated with costly corrosion damage in wastewater treatment systems, as detailed by patterson and banker (3). of par particular importance is the tendency of scale deposits with high tds thereby resulting in high fuel consumption in boilers. the ministry of environment and
forests (mef) has not categorically laid down standards for inland surface water discharge for total dissolved solids (tds), sulphates and chlorides. the decision on these standards rests with the respective state pollution control boards as per the requirements based on local site conditions. the standards stipulated by the tnpcb are justified on the aforereffered considerations. the prescribed standards of the tnpcb for inland surfaces water discharge can be met for tannery wastewaters cost-effectively through proper implant control measures in tanning operation, and rationally designed and effectively operated wastewater treatment plants (etps & cetps). tables 3 and 5 depict the quality of groundwater in some areas around tanneries during peak summer period (june 3- 5, 1996). table 8 presents the data collection by tnpcb at individual etps indicating that tds, sulphates and chlorides concentrations are below the prescribed standards for inland surface water discharge. the quality of ambient waters needs to the maintained through the standards stipulated by tnpcb." the board has power under the environment act and therules to lay down standards for emissions or discharge ofenvironmental pollutants. rule 3(2) of the rules even permitthe board to specify more stringent standards from thoseprovided under the rules. the neeri having justified thestandards stipulated by the board, we direct that thesestandards are to be maintained by the tanneries and otherindustries in the state of tamil nadu. keeping in view the scenario discussed by us in thisjudgment, we order and direct as under:-1. the central government shall constitute an authorityunder section 3(3) of the environment (protection) act, 1986and shall confer on the said authority all the powersnecessary to deal with the situation created by thetanneries and other polluting industries in the state oftamil nadu. the authority shall be headed by a retired judgeof the high court and it may have other members- preferablywith expertise in the field of pollution control and
environment protection- to be appointed by the centralgovernment. the central government shall confer on the saidauthority the powers to issue directions under section 5 ofthe environment act and for taking measures with respect tothe matters referred to in clause (v), (vi) (vii) (viii)(ix) (x) and (xii) of sub-section (2) of section 3. thecentral government shall consitute the authority beforeseptember 30, 1996.2. the authority so constituted by the central governmentshall implement the "precautionaryprinciple" and the"polluter pays" principle. the authority shall, with thehelp of expert opinion and after giving opportunity to theconcerned polluters assess the loss to theecology\environment in the affected areas and shall alsoidentify the individuals/families who have suffered becauseof the pollution and shall assess the compensation to bepaid to the said individuals/families. the authority shallfurther determine the compensation to be recovered from thepolluters as cost of reversing the damaged environment. theauthority shall lay down just and fair procedure forcompleting the exercise.3. the authority shall compute the compensation under twoheads namely, for reversing the ecology and for payment toindividuals. a statement showing the total amount to berecovered, the names of the polluters from who the amount isto be recovered, the amount to be recovered from eachpolluter, the persons to who the compensation is to be paidand the amount payable to each of them shall be forwarded tothe collector\district magistrates of the area concerned.the collector\district magistrate shall recover the amountfrom the polluters, if necessary, as arrears of landrevenue. he shall disburse the compensation awarded by theauthority to be affected persons/families.4. the authority shall direct the closure of the industryowned/managed by a polluter in case he evades or refuses topay the compensation awarded against him. this shall be inaddition to the recovery from his as arrears of landrevenue.5. an industry may have set up the necessary pollutioncontrol device at present but it shall be liable to pay forthe past pollution generated by the said industry which hasresulted in the environmental degradation and suffering tothe residents of the area.6. we imposepollution fine of rs. 10,000/- each on allthe tanneries in the districts of north arcot ambedkar,erode periyar, dindigul anna, trichi and chengai m.g.r. thefine shall be paid before october 31, 1996 in the office ofthe collector/district magistrate concerned. we direct thecollectors/district magistrates of these districts torecover the fines from the tanneries. the money shall bedeposited, alongwith the compensation amount recovered from
the polluters, under a separate head called "environmentprotection fund" and shall be utilised for compensating theaffected persons as identified by the authorities and alsofor restoring the damaged environment. the pollution fine isliable to the recovered as arrears of land revenue. thetanneries which fail to deposit the amount by october 31,1996 shall be closed forthwith and shall also be liableunder the contempt of courts act.7. the authority, in consultation with expert bodies likeneeri, central board, board shall frame scheme/schemes forreversing the damage caused to the ecology and environmentby pollution in the state of tamil nadu. the scheme/schemesso framed shall be executed by the state government underthe supervision of the central government. the expenditureshall be met from the "environment protection fund" and fromother sources provided by the state government and thecentral government.8. we suspend the closure orders in respect of all thetanneries in the five districts of north arcot ambedkar,erode periyar, dindigul anna, trichi and chengai m.g.r. wedirect all the tanneries in the above five districts to setup cetps or individual pollution control devices on orbefore november 30, 1996. those connected with cetps shallhave to install in addition the primary devices in thetanerries. all the tanneries in the above five districtsshall obtain the consent of the board to function andoperate with effect from december 15, 1996. the tannerieswho are refused consent or who fail to obtain the consent ofthe board by december 15, 1996 shall be closed forthwith.9. we direct the superintendent of police and thecollector/district magistrate/deputy commissioner of thedistrict concerned to close all those tanneries withimmediate effect who fail to obtain the consent from theboard by the said date. such tanneries shall not be reopenedunless the authority permits them to do so. it would be opento the authority to close such tanneries permanently or todirect their relocation.10. the government order no. 213 dated march 30, 1989 shallbe enforced forthwith. no. new industry listed in annexure-ito the notification shall be permitted to be set up withinthe prohibited area. the authority shall review the case ofall the industries which are already operating in theprohibited area and it would be open to authority to directthe relocation of any of such industries.11. the standards stipuated by the board regarding totaldissolved solids (tds) and approved by the neeri shall beoperative. all the tanneries and other industries in thestate of tamil nadu shall comply with the said standards.the quality of ambient waters has to be maintained throughthe standards stipulated by the board. we have issued comprehensive directions for achieving
the end result in this case. it is not necesary for thiscourt to monitor these matters any further. we are of theview that the madras high court would be in a betterposition to monitor these matters hereinafter. we,therefore, request the chief justice of the madras highcourt to constitute a special bench "green bench" to dealwith this case and other environmental matters. we make itclear that it would be open to the bench to pass anyappropriate order/orders keeping in view the directionsissued by us. we may mention that "green benches" arealready functioning in calcutta, madhya pradesh and someother high courts. we direct the registry of this court tosend the records to the registry of the madras high matteras a petition under article 226 of the constitution of indiaand deal with it in accordance with law and also in terms ofthe directions issued by us. we give liberty to the partiesto approach the high court as and when necessary. mr. m.c. mehta has been assisting this court to ourutmost satisfaction. we place on record our appreciation formr. mehta. we direct the state of tamil nadu to pay rs.50,000/- towards legal fees and other out of pocket expensesincurred by mr. mehta.
petitioner:s. jagannath
vs.
respondent:union of india & ors.
date of judgment: 11/12/1996
bench:kuldip singh, s. saghir ahmad.
act:
headnote:
judgment: j u d g m e n t
kuldip singh, j. shrimp (prawn culture industry is taking roots inindia. since long the fishermen in indian have beenfollowing the traditional rice/shrimp rotating acqua culturesystem. rice is grown during part of the year and shrimp andother fish species are cultured during the rest of the year.however, during the last decade the traditional systemwhich, apart from producing rice, produced 140 kgs. ofshrimp per hectare of land began to give way to moreintensive methods of shrimp culture which could producethousands of kilograms per hectare. a large number ofprivate companies and multi-national corporations havestarted investing in shrimp farms. in the last few yearsmore than eighty thousand hectares of land have beenconverted to shrimp farming. india's marine export weighedin a 70,000 tonnes in 1993 and these exports are projectedto reach 200 thousand tonnes by the year 2000. the shrimpfarming advocates regard acquaculture as potential savior ofdeveloping countries because it is a short-duration cropthat provides a high investment return and enjoys andexpanding market. the said expectation is sought to beachieved by replacing the environmentally benign traditionalmode of culture by semi-intensive and intensive methods.more and more areas are being brought under semi-intensiveand intensive modes of shrimp farming. the environmentalimpact of shrimp culture essentially depends on the mode ofculture adopted in the shrimp farming. indeed, the new trendof more intensified shrimp farming in certain parts of thecountry - without much control of feeds, seeds and otherinputs and water management practices - has brought to thefore a serious threat to the environment and ecology whichhas been highlighted before us. this petition under article 32 of the constitution ofindia - in public interest - has been filed by s.jagannathan, chairman, gram swaraj movement, a voluntaryorganisation working for the upliftment of the weakersection of society. the petitioner has sought theenforcement of coastal zone regulation notification datedfebruary 19, 1991 issued by the government of india,stoppage of intensiveand semi-intensive type of prawnfarming in the ecologically fragile coastal areas,prohibition from using the waste ands/wet lands for prawnfarming and the constitution of a national coastalmanagement authority to safeguard the marine life andcoastal areas. various other prayers have been made in thewrit petition. this court issued notice by the order datedoctober 3, 1994. on december 12, 1994, this court passed thefollowing order:- "ministry of environment and
forests, govt. of india issued a notification dated february 19, 1991, under clause (d) of sub-rule (3) of rule 5 of the environment (protection) rules, 1986 wherein it was declared that the coastal stretches of seas, bays, estuaries, creeks, rivers and backwater which are influenced by the tidal action (in the landward side) upto 500 metres from the high tide line (htl) and the land between the low tide line (ltl) and the htl are coastal regulation zone. the central govt. has imposed various restrictions in the said notification. mr. mehta, learned advocate appearing for the petitioners states that despite the issue of the notification unauthorised industries and other construction is being permitted by various states within the area which has been declared as coastal regulation zone ................meanwhile we direct all the respondent states not to permit the setting up of any industry or the construction of any type on the area at least upto 500 metres from the sea water at the maximum high tide. the above said area i.e. from the high tide level upto 500 metres shall be kept free from all construction of any type". the union of india and states/union territories ofgujarat, maharashtra,orrisa, kerala, tamil nadu, westbengal, goa, pondicherry, daman/deu, andaman/nichobar andlakshdeep have filed replies to the writ petitions. thiscourt on march 27, 1995 passed the following order:- "this public interest petition is directed against the setting up of prawn farms on the coastal areas of andhra pradesh, tamil nadu and other coastal states. it is alleged that the coastal states are allowing big business houses to develop prawn farms on a large scale in the ecologically fragile coastal areas of the states concerned in violation of
environment protection act, 1986 and the rules framed thereunder and various other provisions of law. it is also alleged that establishment of prawn farms on rural cultiviable lands is creating serious environmental, social and economic problems for the rural people living along with the coastal bed specially in the east coast.................. meanwhile, we direct neeri, nagpur through its director to appoint in investigating team to visit the coastal areas of the states of andhra pradesh and tamilnadu and give its report to this court regarding the various farms which are being set up in the said area. in case the investigating team finds that the ecologically fragile area is being environmentally degraded then it shall suggest the remedial measures in that respect. the neeri team shall keep in view the notification dated february 19, 1991 of the ministry of environment and forests, govt. of india, issued under the environment protection act, 1986 and also the provisions of the tamil nadu agriculture (regulation) act, 1995. the neeri shall submit its report before april 30, 1995". pursuant to the above quoted order, the nationalenvironmental engineering research institute, nagpur (neeri)submitted its report dated april 25, 1995 before this court.this court further directed neeri to send an expert team tothe coastal areas in other states and file its report withintwo months. the report was filed in this court within thespecified time. this court on may 9, 1995 passed thefollowing order:- "this matter be listed for final hearing on 4th august, 1995. meanwhile we direct that no part of agricultural lands and salt farms be converted into conmmercial aquaculture farms hereinafter. we further direct that no ground water withdrawal, be allowed for aquaculture purposes to any of the
industries whether already existing or in the process of being set up. no further shrimp farms or any acquaculture farms be permitted to be s et up in the areas in dispute hereinafter. we direct the respective state governments (the collector concerned or any other officer appointed by the government) to provide free access through acquaculture units to the sea coast to the fishermen/tourists after hearing the parties concerned. mr. mehta has contended that due to these farms occupying the most of the coastal areas it has become difficult for the villagers to search for fresh water. the state govt. may examine this aspect and provide water by way of tankers wherever it is necessary. so far as the farmers in the state of tamil nadu are concerned they are all represented through of kapil sibal and his team. we direct the state of a.p. to send a copy or the order of this court to all the aquaculture farms in the state of a.p. informing them that the matter shall be taken up by this court for final hearing on 4th august, 1995. this may be done by the state of a.p. by the end of june, 1995. we direct the pondicherry administration to send a copy of the order of this court to all the aquaculture farms in pondicherry informing them that the matter shall be taken up by this court for final hearing on 4th august, 1995. this may be done by the pondicherry admn. by the end of june 1995. we further direct the superintendent of police and the collector of the areas concerned to see that the order of this court specially the directions given are meticulously complied with by all the farms." before finally hearing this matter, this court passed
the following order on august 24, 1995:- "we are of the view that it would be in the interest of justice to have full representation before us so far individual aqua-farms in various states/union territories are concerned. we, therefore, adjourn the hearing to october 17, 1995. meanwhile, we direct the coastal states/union territory governments, through their learned counsel who are present in the court, to issue individual notices to all the aqua-farms which are located in their respective territories. it may be stated in the notices that the same are being issued under the direction of this court. it should also be specifically mentioned that if they want to be heard in these matters by this court, they be present through their counsel/representatives in the court, on the next date of hearing, which is october 17, 1995. we also direct the marine products exports development authority (mpeda), through its counsel mr. harish n. salve, to do the same exercise at its level also. apart from that, we further direct all the state governments/union territories to issue public notices in this respect in daily newspapers which have circulation in the coastal areas, informing the aqua-farms regarding the hearing of these matters in this court, on october 17, 1995. this may be done on two consecutive days. notices and publication be completed within 3 weeks from today. meanwhile, we direct all the state governments/union territories not to give fresh licences/permission for setting up/establishment of any aqua-farm in their respective territories till further orders." coastal pollution, universally, is an emerging problem.
so far as india is concerned it has already become a seriousenvironmental problem. besides direct dumping of wastematerials in the seas discharge through marine outfalls,large volumes of untreated of semi-treated waste generatedin various land-based sources/activities ultimately find wayto the seas. the coastal waters directly receive the inlandwaters, by way of surface run-off and land-drainage, laddenwith myriad of refuse materials - the rejects or wastes ofthe civilisation. apart from inputs from rivers andeffluent-outfalls, the coastal areas are subject tointensive fishing, navigational activities, recreations,ports, industrial discharge and harbours which are causativefactors of water quality degradation to varying degrees.contrary to the open sea, the changes in the quality ofcoastal waters, are much greater due to river dischargesunder tidal conditions. with noticeable increase in marine pollution and theconsequential decline in marine resources, serious concernwas expressed in the united nations' conference on humanenvironments in stockholm (1972) attracting global attentiontowards the urgent need of identifying the criticallypolluted areas of the marine environments, specially incoastal waters, for urgent remedial actions. the conferenceunanimously resolved that the littoral states should takeearly action at their national level for assessment andcontrol of marine pollution from all sources and carry outsystematic monitoring to ascertain the efficacy of thepollution regulatory actions taken by them. in thebackground of the stockholm conference and in view of 1982convention on the "law of the sea" defining jurisdiction ofterritorial waters, a model comprehensive action plan hasbeen evolved under the united nations' environment programme(unep). keeping with the international commitments and ingreater national interest, the government of india and thegovernments of the coastal states are under a legalobligation to control marine pollution and protect thecoastal-environments. according to the facts placed on record by the centralpollution control board the board the coastline of india'smainland is about 6000 km long. but or the total landmass ofabout 3.28 million sq. kms nearly 0.15 million sq. kms ofcoastal land-belt (considering 25 km landward distance)girdles three sides of the country's sea front which in turnunderlays about 3.13 million sq. km sea-bed upto theterritorial limit. the country being riverine, has 14 major,44 medium and 55 minor rivers which discharge annually about1566 thousand million cubic meters of water through landdrainage into the seas transporting a wide range ofpollutants generated by land-based activities. nine out offourteen majorrivers meet the sea in the east coast(brahmaputra through bangladesh) and the remaining five in
the west coast (indus through pakistan). besides land drainage, there are large number or marinecoastal out falls discharging directly or indirectlyindustrial and municipal effluents into seas. uncontrolleddisposal of land-based waste into the seas, through riversand effluent outfalls, is a major cause of pollution ofcoastal waters. there are nine coastal states and one unionterritory (ut) in india namely, gujarat, maharashtra, goa,karnataka, kerala, tamil nadu, pondicherry (ut), andhrapradesh, orissa and west bengal, more than one-fourth of thetotal population of the country is settled in the coastalareas. the board in its report regarding "pollutionpotential of industries in coastal areas of india" datednovember, 1995 gives the following date regardingaquaculture farms: "the effluent generation from aquaculture farms in the east coast only, in absence of data on west coast farms, is to the tune of 2.37 million cubic meters per day, out of which andhra pradesh has the lion share of about 2.12 million cubic meters per day.... it may be noted that in all the states, in most cases, the effluent discharge is indirect (through estuaries, creeks, canals, harbours). it may also be noteworthy that the effluents from aquaculture farms are discharged directly/indirectly into the coastal waters practically without any treatment. for disposal of solid waste, on the other hand, open dumping and land filling is a common practice." in marine pollution control utmost importance has t bgiven to the beaches. the beaches and other areas of specialinterest are to be maintained aesthetically and atpermissible levels of enteric bacteria. protection ofecologically sensitive areas and land-sea interface resourceareas is equally important. the central board for theprevention and control of water pollution (central board) inits report "coastal pollution control series copocs/1/1982"recommended as under:- "- the mangrove forest at pichavaram, the bird sanctuary and forest areas at point calimere and coral reef at mandapam are ecologically sensitive areas warranting special watch and preservation.
- recreational coastal portions of some sector of the stretch under investigation such as marine and elliot beaches at madras, mahabalipuram, pondicherry beach at pondicherry and poompuhar at the confluence of the river cauvery with the sea are to be maintained at appropriate quality level. - continuous monitoring of the coastal waters especially heavy metals and pesticides in the biota should be carried out to detect possible biomagnification of some toxic chemicals and to provide early warning." the central board in its report "coastal pollutioncontrol series copocs/s/1986-87" sought protection of theecologically fragile areas in the following terms:- "the mangrove forest and the wildlife sanctuary in coringa island, the pulicat lake and the bird sanctuary at nelapattu are the ecologically sensitive areas warranting special attention and protection. no industrial activity which may pose a danger to the ecosystem in these areas should be permitted. at pulicat lake area, machilipatnam, naupada and ichapuram, salt pan irrigation is practised. no water polluting industry should be allowed nearby. the domestic sewage and the industrial effluents entering the kolleru lake through various drains be properly treated so that no pollutants enter the coastal water through upputeru drain". shrimps are basically marine. shrimp are also calledprawns. in commercial jargon, marine prawns are referred toas shrimps and freshwater ones as prawns. prawns and shrimpsare invertebrates and are decided crustaceans. sea is theirhome and they grow to adulthood and breed in the sea. theprogeny start their life by drifting into estuaries and suchother brackishwater areas for feeding. in about 4-6 monthsthe larvae grow into adolescence and go back to their realhome of birth, the sea. aquaculture has been practised for many centuries bysmall farmers and fisher folk in asia to improve their
living conditions. however, there is a vast differencebetween eh traditional methods and the new commercialisedsystem. the traditional aquaculture, including shrimp, isusually small-scale, using low inputs and relies on naturaltidal action for water-exchange. in some countries, such asindia, bangladesh and thailand, there is a tradition ofrice/shrimp rotating, with rice grown part of the year andshrimp and other fish species cultured the rest of the year.chemicals, antibiotics and processed feeds are not used inthe traditional method. in this low-yield, natural method,the harvest is small but sustainable over long periods. ithas no adverse affect on the environment and ecology. themodern method, on the other hand, is larger is scale andintensive or semi-intensive in nature. it is owned andoperated by commercial and often foreign-owned companieswhich mainly export the shrimp. in intensive aquaculture,selected species are bred using a dense stocking rate. tomaintain the very crowded shrimp population and attainhigher production efficiency, artificial feed, chemicaladditives and antibiotics are used. the food and agriculture organisation (fau) - an organof united nations organisation (unu) - published a report inapril, 1995 on a regional study and workshop on theenvironmental assessment and management or aquaculturedevelopment. copy of the report has need placed on record bymr. santosh hedge, learned counsel for the state ofkarnataka. india was one of the 16 countries participated inthe workshop. dr. k. alagarswami, director, centralinstitute of brackishwater aquaculture, madras presented apaper titled "the current status of aquaculture in india,the present phase of development and future growthpotential". (hereinafter called alagarswami report). it hasbeen published as an annexure to the workshop-reportpublished by the fao. para 5.1.2 of alagarswami report givesvarious types of technologies adopted by the aquacultureindustry in india. it would be useful to reproduce the samehereunder:- "5.1.2 types of technology - changes in technology with time traditional: practised in west bengal, kerala, karnataka and goa, also adopted in some areas of orissa. coastal low-living areas with tidal effects along estuaries, creeks and canals; impoundments of vast areas ranging from 2-200 ha in size. characteristics; fully tidally-fed; salinity variations according to monsoon regime; seed resource of mixed species from the adjoining creeks and canals by
auto-stocking; dependent on natural food; water intake and draining managed through sluice gates depending on local tidal effect; no feeding; periodic harvesting during full and new moon periods; collection at sluice gates by traps and by bag nets; seasonal fields alternating paddy (monsoon) crop with shrimp/fish crop (inter monsoon); fields called locally as bheries, pokkali fields and khazan lands. improved traditional: system as above but with stock entry control; supplementary stocking with desired species of shrimp seed (p. monodon or p. indicus); practised in ponos of smaller area 2-5 ha. extensive : new pond systems; 1-2 ha ponds; tidally fed; no water exchange, stocking with seed; local feeds such as claims, snails and pond-side prepared feed with fishmeal, sova, oilcake, cereal flour etc.; wet dough ball form; stocking density around 20,000/ha. modified extensive system as above; pond preparation with tilling, liming and fertilisation; some water exchange with pumpsets; pellet feeds indigenous or imported; stocking density around 50,000/ha. semi-intensive new pond system; ponds 0.25 to 1.0 has in size; elevated ground with supply and drainage canals; pond preparation methods carefully followed; regular and periodic water exchange as required; pond aerators (paddle wheel) at 8 per ha; generally imported feed with fcr better than 1:1.5 or high energy indigenous feeds; application of drugs and chemicals when need arises; regular monitoring and management stocking density 15-25/m2. intensive ponds 0.25-0.50 ha in size; management practices as above; 4 aerators in each pond;
salinity manipulation as possible; central drainage system to remove accumulated sludge; imported feed; drugs and chemicals used as prophylactic measures; <??> control and management; stocking density 20-35/m2 changes in technology: as already indicated. the initial concept and practice was to develop tide-red systems, this slowly gave way to a pump-fed systems. presently, the emphasis is on seawater based farming systems for p. monodon with a water intake system extending far into the sea with submerged pipelines, pier system and gravity flow. from sandy clay soils, the present coastal farms are located in sandy soils also with seepage control provisions." alagarswami report further states as under:- "the ministry of environment and forests, government of india issued a notification s.u. no.114 (e) in 1991, under "the environment (protection) act, 1986" declaring coastal stretches as coastal regulation zones (crz) and regulating activities in the crz. this notification ha simplications for coastal aquaculture, particularly those activities within 500 m from the high tide line.... no regulations to control the use of chemicals and drugs exist. pollution control board general regulations on effluent discharges include hazardous substances, but they are not specific to aquaculture. in some regions, there is indiscriminate use of chemicals and pesticides, particularly in shrimp farms.... under the notification of union ministry of environment and forests, each maritime state is expected to have its own coastal zone management plan, which would consider aquaculture zonation requirements, along with shoreline
development. the zone up to 500 metres from the waterline along the sea is restricted against any construction activity." alagarswami report high lights various environmentaland social problems created by the coastal acquaculture. therelevant part of the report is as under:- "physical factors shrimp farming along the coastal area of the whole country is developing at a rapid rate. huge cylone protection dykes and peripheral dykes are constructed by the shrimp farmers. in many cases as in kandleru creek (andhra pradesh), the farm areas are the natural drainage areas for floods. due to physical obstruction caused by the dykes, the natural drain is blocked and flood water acumulates in the hinterland villages. protests are being made by people in some of the villages against such dykes. the ponds are constructed right on the bank of the creeks without leaving any area for draining of flood water. right of passage of coastal fishermen the shrimp farms do not provide access to the beach for traditional fishermen who have to reach the sea from their villages. as farms are located and entry is restricted, the fishermen have to take a longer route to the sea for their operations. this is being objected to by traditional fishermen. drinking water problems the corporate sector has purchased vast areas adjoining the villages which, in some cases, include drinking water public wells of the villages. the villagers cannot use these wells anymore as they are located in private land owned by the farmers. this is causing social problems. salinisation it is reported that salinisation of land is spreading further landwards
and the wells yield only saline water. in tamil nadu and andhra pradesh protests have been voiced against salinisation. some of the socially conscious shrimp farm operators are providing drinking water to the affected villages by laying a pipeline from their own freshwater source wherever available. apart from wells. the agricultural farms adjoining the shrimp farms are reported to be affected. however, there is increasing conversion of paddv fields as in the bhimavaram area of andhra pradesh and even on the fringes of chilka lake into shrimp farms. mangrove areas the status report on mangroves of india published by the ministry of environment and forests (go1, 198/) is shown in table 5. in the earlier years, vast areas of mangrove were destroyed for agriculture, aquaculture and other uses. in the more recent years, the mangroves have been protected by law. however, the satellite imagery pictures show destruction of mangroves in krishna and guntur districts of andhra pradesh for construction of shrimp farms. gujarat state is planning major shrimp culture programmes in the narmada region adjoininggulf at cambay. protection of mangroves should receive attention. alagaraswami report further indicates that the demandfor shrimp seed is growing with the expansion of shrimpculture and hatchery production is unable to meet it.exploitation of natural seed resources is growing unabated,particularly in west bengal, orissa and andhra pradesh.large quantity of fry by-catch are discarded by the frycollectors because their value is insignificant. the reportstates "elimination of fry in the fry by-catch is not onlydetrimental to the predators thriving on them, but it alsocreates an ecological imbalance". agitations by the environmentally conscious people ofthe coastal-areas against polluting acquaculturetechnologies has been noticed by alagaswamy report as
under:- people's awareness people in general have become aware of the environmental issues related to aquaculture. a current case in point is the agitation against a large commercial farm coming up in chilka lake (orissa). people have demanded an eia of the project. people in nellore district in andhra pradesh have raised environmental issues and called for adoption or environmentally- friendly technologies and rejection of "imported" technologies from regions which have suffered environmental damage. protests have been voiced by the local people in tuticorin area in tamil nadu. both print and visual media take up environmental issues with a great deal of zeal. this appears to augur well for regulating coastal shrimp farming with eco-friendliness". the intensive-farming technique and the pollutantsgenerated by such farming have been noticed by alagaswamy inthe following words:- "in intensive farming, stocking densities are on the increase. in one instance, p. indicus was stocked at 70 post larvae/m2, almost reaching the levels of taiwan before the disease outbreak in 1988. this necessitates heavy inputs of high energy feeds, the use of drugs and chemicals and good water exchange. the organic load and accumulation of metabolites in the water drained into the sea should be very high as could be seen from the dark-brown colour and consistency of the drain water." the alagaswamy report further states that paddy fieldsare being converted to shrimp farms, as in some parts ofandhra pradesh (e.g. bhimavarami, some paddv lands along thefringe of chilka lake have been last to shrimp farming. the report suggests future management strategies -quoted hereunder - for farms and government in resolving anyconflicts or environmental problems:- "as shrimpfarming is developing fast, the following strategies have
been developed for avoiding problems which have arisen in other countries (or reducing their impact): 1. india needs to boost production of shrimp through aquaculture with environment and development as a unified motto. 2. since the area available is vast, this can be achieved by application of environmentally - friendly technologies for optimal production rates against maximum production rates. 3. sustainable development or shrimp aquaculture should be guided by the principles of social equity, nutritional security, environmental protection and economic development with a holistic approach to achieve long-term benefits. 4. new definitions and parameters of extensive, semi-intensive and intensive culture systems as suited to indian conditions and government policies rather than copying models of other countries (particularly those which have rushed and suffered) and the development or guidelines thereof. 5. diversification of species among shrimps and to integrate fish wherever possible to suit the different agro-climatic and aquatic zones of the country. 6. careful development of coastal zone management plans under crz to meet the requirements of coastal aquaculture development plans with some flexibility (as required) for specific areas. 7. indentification of aquaculture zones or careful consideration and provision of buffer zones against possible impact on other land uses: also intermediate buffer zones within aquaculture zones. 8. consideration of the living, social and vocational needs of local people in villages/towns in aquaculture plans in order to avoid
conflicts. 9. development of sets or regulations on use/ban of drugs and chemicals, including antibiotics, in hatcheries and farms; on abstraction of groundwater and salinisation problems. 10. development of standards for effluent discharge as applicable to local conditions. 11. development of viable technologies for secondary aquaculture to gainfully utilise nutrient enriched farm effluents and encourage farmers to adopt such technologies with the necessary support. 12. in view of the fact that coastal farms are located generally in remote areas and cannot be monitored by external agencies on a reasonably effective basis, farmers/group of farmers should equip themselves with facilities to monitor possible important parameters at periodic intervals and maintain such records for their own benefits and for production to inspecting agencies. 13. brackishwater fish farmer development agencies to be strengthened in all respects, including environmental management and disease diagnosis, prevention and control, through appropriate training and setting up district level laboratories for essential analytical and diagnostic work. 14. manpower development at managerial and technical level. 15. research-extension-farmer group meet for appropriate technologies and feedback. 16. effective monitoring and enforcement of regulations, use of nets and fishing in any specified water for a period not exceeding two years. thus, legal provisions were made on fisheries matters in india nearly a century ago" alagarswami's report identifies salinisation or land
salinisation of drinking water wells, obstruction of naturaldrainage of flood water, passage of access to sea byfishermen and public, self-pollution or ponds, pollution ofsource water, destruction or mangroves land subsidence andpressure on wild seen resources and consequences thereof asenvironmental issues in shrimp culture. para 6.2 of thereport lists the following preventive measures:- "6.2 prevention (i) aquaculture units causing harmful changes to the environment; and (ii) non-aquaculturists from modifying the environment to the detriment of aquaculture production units. 1. enforcement of legal provisions under the relevant acts of the government. 2. crz regulations to consider specific needs of aquaculture as an expanding production activity and the coastal zone management plans of the states/union territories to carefully plan taking into consideration present situation and future needs. 3. early development of regulations on permissible levels of most significant parameters of water quality keeping in view the limited intervention of aquaculture for promoting growth of stock in the medium. 4. environment impact assessment (eia) and environmental monitoring plan (emp) to be insisted upon for larger units and self assessment/monitoring for smaller units, subject to verfication at inspection. 5. zonations and appropriate siting of farms; not to proliferate indiscriminately but to develop in a planned manner for sustaining production (alagarswami, 1991). 6. more hatcheries to be encouraged and supported to meet seed demands to reduce pressure on wild seed resources. 7. feed mills to maintain quality of feeds and to ensure water
stability as required; self/external inspection mechanism to be introduced to maintain specific standards. 8. mangrove forests not to be touched for aquaculture purposes." the fao report - based on alagaswami reportstates the impact of aquaculture on the environment, inindia, as under:- "the impact of aquaculture on the environment are as follows; by shrimp culture: loss of agricultural land and mangroves, obstruction of natural drains, salinisation, destruction of natural seed resources, use of drugs and chemicals, and extraction of groundwater. social conflicts have arisen." alagarswami report - quoted by us extensively - is anauthentic document relating to the functioning of shrimpculture industry in india. it has rightly been suggested inthe report that sustainable development should be theguiding principle for the shrimp aquaculture. the industrymust develop under the unified motto of environment anddevelopment. environmentally-friendly technologies are to beadopted with a view to achieve optimal production. thereport calls for a ban on the use of drugs, chemicals andantibiotics in the shrimp culture farms. the report clearlyindicates that except the traditional and improvedtraditional, the other methods or strimp aquaculture arepolluting and as such may have an adverse impact on theenvironment. mr. m.c. mehta, learned counsel for the peititoner, hastaken us through the neeri reports and other voluminousmaterial on the record. he has vehemently contended that themodern - other than traditional - techniques of shrimpfarming are highly polluting and are detrimental to thecoastal environment and marine ecology. according to himonly the traditional and improved traditional systems ofshrimp farming which are environmentally friendly should bepermitted. mr. mehta has take us through the notificationdated february19, 1991 issued by the government of indiaunder section 3 of the environment (protection) act, 1986(the act) (urz notification) and has vehemently contendedthat setting up of shrimp farms on the coastal stretches ofseas. days, estuaries, creeks, rivers and backwaters upto500 meters from the high tide line (htl) and the linebetween the low tide line (ltl) and the htl is totallyprohibited under para2 of the said notification. therelevant part of the notification is as under:
"2. prohibited activities: the following activities are declared as prohibited within the coastal regulations zone, namely: (i) setting up of new industries and expansion of existing industries, except those directly related to water front or directly needing fore-shore facilities. (ii) manufacture or handling or storage or disposal of hazardous substances as specified in the notifications of the government of india in the ministry of environment y forests no.s. 0.59.1 (e) dated 28th july, 1989, s.o. 966(e) dated 27th november, 1989 and gsr 103/(e) dated 5th december, 1989: (iii) setting up and expansion or fish processing units including warehousing (excluding hatchery and natural fish drying in permitted areas): (v) discharge of untreated wastes and effluent from industries, cities settlements. schemes shall be implemented by the concerned authorities phasing out the existing practices, if and within a reasonable time period not exceeding three years from the date of this notification. (viii) land reclamation, punding or disturbing natural course or sea water with similar obstructions, except those required for control of coastal erosion and maintenance clearing of waterways, channels an for prevention of sandbars and all except for tidal regulators. storm water drains and structures for prevention of salinity ingrease and for sweet water recharge. (x) harvesting or drawal of ground water and construction of mechanisms therefore with 200 m of htl; in the 200 m to 500 m zone it shall be permitted only when do manually through ordinary wells for draining, horticulture, agriculture
and fishering." according to mr. mehta the shrimp culture industry isneither "directly related to water iron" nor "directlyneeding fore-shore facility" and as such is a prohibitedactivity under para 2(1) of the crz notification. mr. kapilsibal on the other hand has argued that a shrimp farm is anindustry which is directly related to water front and cannotexist without fore-shore facilities. relying upon oxfordenglish dictionary mr. sibal contended that "water front"means land abetting on the sea, that part of a town whichfronts on a body of water. according to him "foreshore" interms of the said dictionary means the part of the shorethat lies between the high tide and the low tide. accordingto webster comprehensive dictionary. international editionthe expression`foreshore' means "that part of a shoreuncovered at low tide". it is, thus, clear that the part of the shore whichremains covered with water at the high tide and getsuncovered and become visible at the low tide is called"foreshore". it is not possible to set no a shrimp culturefarm in the said area because it would completely sub-mergein water at the high tide. it is, therefore, obvious thatforeshore facilities are neither directly nor indirectlyneeded in the setting up of a shrimp farm. so far as "waterfront" is concerned it is no doubt correct that shrimp farmmay have some relation to the water front in the sense thatthe farm is dependent on brackish water which can be drawnfrom the sea. but on a close scrutiny, we are of the viewthat shrimp culture farming has no relation or connectionwith the `water front' though it has relation with brakishwater which is available from various water-bodies includingsea. what is required is the "brakish water" and not the`water front'. the material on record shows that the shrimpponds constructed by the farms draw water from the sea bypipes, <??> etc. it is not the `water front' which is neededby the industry, what is required is the brakishwater whichcan be drawn from any source including sea and carried toany distance by pipes etc. the purpose of crz notificationis to protect the ecological fragile coastal areas and tosafe guard the aesthetic qualities and uses of the seacoast. the setting up of modern shrimp aquaculture farmsright on the sea coast and construction of ponds an otherinfrastructure thereon is per se hazardous and is bound todegrade the marine ecology, coastal environment and theaesthetic uses of the sea coast. we have, therefore, nohesitation in holding that the shrimp culture industry isneither "directly related to water front" nor "directlyneeding foreshore facilities". the setting up of shrimpculture farms within the prohibited areas under the crznotification cannot be permitted. para 2(viii) of the crz notification quoted above,
prohibits the bunding or disturbing the natural course ofsea water with similar obstructions. a band is an embankmentor dyke. alagarswami report in para 4.3.2 (quoted above) hasspecifically mentionedthat huge cyclone protection dykesand peripheral dykes are constructed by the shrimp farmers.the report further states that due to physical obstructioncaused by the dykes the natural drain is blocked and floodwater accumulated in the hinterland villages. the reportnotices that the shrimp ponds are constructed right on thebank of the creeks without leaving any area to draining offlood waters. a shrimp farm on the coastal area; by itselfoperates as a dyke or a band as it leaves no area fordraining of the flood waters. the construction of the shrimpfarms, therefore, violate clause (viii) of para 2 of the crznotification, in view of the findings by the alagarswamireport it may be useful to hold an inquiry/investigation tofind out the extent of loss occurred, if any to the villagesduring the recent cyclone in the state of andhra pradeshbecause of the dykes constructed by the shrimp farmers. annexure-1 to the crz notification contains regulationsregarding coastal area classification and development. thecoastal stretches within 500 m of htl of the landward sideare classified into four categories, namely, crz-i, crz-ii,crz-iii and crz-iv. para 6(2) of the crz notification laysdown the norms for the development ht or constructionactivities in different categories of crz areas. in crz-iiizone agriculture, horticulture, gardens, pastures, parks,playfields, forestry, and salt manufacture from sea levelmay be permitted upto 200 m from the high vide line. theaquaculture or shrimp farming has not been includedas apermissible use and as such is prohibited even in this zone.a relevant point arises at this stage. salt manufacturingprocess like the shrimp culture industry depends on seawater. salt manufacturers can also raise the argument thatsince they are wholly dependent on sea-water theirs is anindustry "directly related to water front" or "directlyneeding fore-shore facilities". the argument standsnegatived by inclusion of the salt manufacturing industry incrz-iii zone under para b(2) or the crz notificationotherwise it was not necessary in include the industrytherein because it could be set-up any were in the coastalregulation zone in terms of para 2(1) of the crznotification. it is thus obvious that an industry dependenton sea water cannot by itself is an industry "directlyrelated to water front" or "directly needing fore-shorefacilities". the shrimp culture industry, therefore, cannotbe permitted to be set up any where in the coastalregulation zone under the crz notification. we may examine the issue from another angle. sea coastand beaches are a gift of the nature to the mankind. theaesthetic qualities and recreational utility of the said
area has to be maintained. any activity which has the affector degrading the environment cannot be permitted. apart fromthat the right of the fisherman and farmers living in thecoastal areas to eke their living by way of fishing andfarming cannot be denied to them. alagarswami report statesthat "the shrimp farms do not provide excess to the beachfor traditional fishermen who have to reach the sea fromtheir villages. as farms are located and entry is restrictedthe fishermen have to take a longer route to the sea fortheir operation. this is being objected by traditionalfishermen". the alagarswami report further highlights drinkingwater problem, salinisation and destruction of mangrove bythe shrimp culture industry. the relevant paragraphs havealready been quoted above. the increase of stockingdensities, heavy inputs of high energy feeds, use or drugsand chemicals result in the discharge or highly pullutedeffluent into the sea, creeks etc. and on the sea coast bythe shrimp farms. it is, therefore, not possible to agreewith mr. sibal that commercial shrimp farming has no adverseaffect on environment and coastal ecology. we may at this stage refer to the two investigationreports dated april 23, 1995 and july 10, 1995 by neeriregarding the ecological fragile coastal areas of india. the report dated april 23, 1995 states that a 13 memberteam of scientists, lead by dr. a.s. ball and dr. s.k. kaulinspected the shrimp farms situated on the ecologicalfragile coastal areas in the states of andhra pradesh andtamil nadu between april 10 and april 19, 1995. it isfurther stated that the coastal areas in the union territoryof pondicherry were also inspected by the team. regardingthe crz notification, the report states as under:- the mef's notification dated february 19, 1995 stipulates that the aquaculture farms on the coastal areas should not be constructed within 500 m from the high tide line (htl) of the seas. the hatcheries however, may be constructed between 250 and 500 m from htl of the sea. the inspection team observed during field investigations that the mef's norms for location of aquaculture and hatcheries have been violated in the states of andhra pradesh, tamil nadu, and the union territory of pondicherry........ there is an urgent need to ensure scrupulous implementation of the provisions made in the mef's notification
dated february 19, 1991 in the states and union territory inspected by the team. in addition, the damage caused to the land and water ecosystems by coastal aquaculture activity, as detailed in the report, must be restored to its original ecological state. the cost for eco-restoration of the coastal fragile area must be borne by individual entrepreneurs of the coastal aquaculture farms in keeping with the polluter-pays principle........ further, no activity of commercial coastal aquaculture should be undertaken even beyond 500 m htl unless a comprehensive and scientific environmental impact assessment (eia) study has been conducted by the entrepreneur, and the environmental management plan approved by the respective state department of environment, pollution control board, shore development authority, and also by the ministry of environment and forests. appropriate terms of reference for eia have been incorporated in the report." regarding the socio-economic assessment of acquaculturein the area, the report gives the in following finding:- "a socio-economic assessment of aquaculture in the ecologically fragile coastal areas in the states of ap and tn has been conducted by the neeri team. this assessment, detailed in the report, indicates that the cost of ecological and social damage far exceeds the benefits that accrue out of coastal aquaculture activities." the adverse impacts of acquaculture farming on theenvironment and the ecologically fragile in the states ofandhra pradesh, tamil nadu and union territory ofpondicherry have been stated in the report as under:- "3.0 observations on the impacts of aquaculture farming on ecologically fragile areas in states of ap, tn, and union territory of pondicherry coastal aquaculture units are
situated within 500 m of high tide line of the sea. this is not in consonance with the mef's notification dated february 19, 1991. it is a common practice to convert agricultural land, and land under salt production, into coastal aquaculture units which infringes the fundamental rights to life and livelihood. conversion of agricultural farms and salt making lands into commercial aquaculture farms is rampant in the fragile coastal areas of andhra pradesh, tamil nadu and union territory of pondicherry. brackish aquaculture units have been installed in deltaic regions which is a ecologically unsound practice. natural saline canals which travel from sea to the mainland are being used for brackish aquaculture farming. the flow of the natural saline canals is being obstructed due to prawn farming activity which has resulted in the spread of brackish water over agricultural farms resulting in loss or agricultural lands, and potable water. villages situated along the sea coast, deltaic regions, and natural saline canals are under threat due to diversion of land to aquaculture farms. traditional fishermen have lost their landing grounds for fish catch. coastal aquaculture has resulted in loss of mangrove eco-systems which provide protection against cyclones and other natural hazards, and which provide natural habitats for spawning or marine <??> indiscriminate destruction of mangrove areas in and around the creeks, estuaries, and sea has resulted in loss of natural breeding grounds for shrimps.
natural casuarine plantations have also been destroyed. this may result in increasing damage from cyclons, and intrusion of saline water into mainland. coastal aquaculture farms have not been scientifically designed and located, resulting in excessive ecological damages. no proper peripheral drainage has been provided around the aquaculture farms. the saline water intake and effluent discharge points from aquaculture farms are located in close vicinity, resulting in contamination of feed water to the aquaculture units threatening their productivity. three types of saline water supply systems are in vogue for the aquaculture farming, viz. - direct pumping from the sea, creek, and estuary - direct pumping from deep sea with jetties - using high tides of sea for carrying saline water through excavated canals. these activities for feed water supply to the aquaculture ponds have resulted in: - loss of fish catch (except in the case of feed water supply through sea water canal system) - loss due to damage of fishing nets. - degradation of fragile coastal land. large commercial aquaculture farms have installed fencing in and around the farms resulting in blockage of free access for the fisherman to the sea shore. the wastewater discharge from the aquaculture farms released into the creeks is not properly flushed out of the creek during low tides thereby leads in the accumulation of pollutants in the creek, affecting the quality of intake
water to aquaculture farm with concommittant loss in productivity, and damage to creek ecosystem. disappearance of the native fish species due to increase in salinity of the creek water has been observed by the team, and reported by the fishermen. increase in salinity has also reduced the ingress of shrimp seedlings in the creek. indiscriminate catch of natural shrimp seedlings from the coastal waters, creeks, and estuaries has resulted in reduction of their availability, which in turn has forced the commercial aquaculture farmers to import the seeds. unscientific management practices adopted by the commercial aquaculture farmers, and improper design of aquaculture farms including inadequate drainage systems have resulted in skin, eye, and water borne diseases in the contiguous population. commercial aquaculture farm owners have not contributed to any social infrastructure facilities for the villagers. employment avenues of the contiguous population have considerably reduced due to the commercial aquaculture farming. the unemployed villagers are seeking employment in nearby towns and cities. owners of the commercial aquaculture farms are using various means to encroach upon the government lands and also forcing the agricultural land owners/salt making villagers to sell their lands. in addition, the fishermen are also being forced to migrate to other coastal areas." regarding the socio-economic status of the ecologicallyfragile coastal areas in the states of andhra pradesh andtamil nadu, the report states as under:- "during the inspection of the aquaculture units located on the
ecologically fragile coastal areas of ap and tn, the inspection team collected data and information, and discussed the issues related to socio-economic status of the affected people with the farmers, fishermen, gnash, and government officials. the basic socio-economic issues are presented in table 4.1 which also lists the parametric values in the assessment of the damage caused by the aquaculture units located in the ecologically fragile coastal areas. tables 4.2 and 4.3 present the socio-economic assessment or aquaculture in the ecologically fragile coastal area of the states of ap and tn. tables 4.2 and 4.3 bring forth that the damage caused to ecology and economics by the aquaculture farming is higher than the earnings from the sale of coastal aquaculture produce." the neeri has, thus, given a positive finding that thedamage caused to ecology and economics by the acquaculturefarming is higher than the earnings from the sale of coastalacquaculture produce. the finding is based on the assessmentkeeping in view fourteen parameters listed in tables 4.2 &4.3 regarding the states of andhra pradesh and tamil nadurespectively. the parameters taken into consideration are<??> equivalent wages for the farmers to be earned,equivalent amount of agricultural produce <??> loss due tocutting to casuarina in terms of fuel, loss in terms ofgrazing grounds, loss involving <??> loss caused by cyclonesdue to cutting of <??> in a forests, loss due todesertification of land, loss in terms of potable water,total loss <??> destruction, loss in rising income, loss dueto damage of fishing nets and man-days loss due to <??>approachability to sea-coast. these losses are computed inmoney are are then compared with the total earnings from thesale of coastal acquaculture produce. in the basis of theassessment of socio-economic status of acquaculture in asystematic manner the neeri has reached the conclusion thatthe damage caused to ecology and economics by theacquaculture farming is higher than the earnings from thesale of coastal aquaculture produce. paras 6.1, 6.2 and 6.3 of the report clearly show theenvironmental degradation caused by the shrimp culturefarming by its adverse impact on surface water,
contamination of soil and ground water and destruction ofmangrove vegetation. the said paragraphs are reproducedhereunder: "6.1 impact on surface waters
mangrove vegetation is important in protecting marine and terrestrial ecosystem. this vegetation is also important as it removes the pollutants like carbon nitrogen, phosphate and other nutrients, as also certain toxic compounds. the importance of mangrove plants especially vettivera zaizonoids is known is reduction the impact of pollution due to discharge of aquaculture pond effluents, and the cavery delta farmers are now propogating the cultivation or this species in estuaries. mangrove vegetation also acts as a barrier of floods, an provides spawning grounds and nesting places for fishes; it also supports avian fauna (birds) thus maintaining the nature ecosystem.
the observations on the water quality in the aquaculture ponds show that the pond water harbors a dense algal bloom compared to the water in estuaries, creeks or sea indicating eutrophic nature of pond effluent. when water in large volumes, from the ponds is discharged during flusing of ponds, in a creek or estuary, the pollutants remain stagnated in the estuary or near-sea coast due to the typical tidal activity in creeks. as a result, the raw water source to the ponds gets contaminated in course of time. the wastewater discharge from the ponds warrant proper treatment before discharge. uncontrolled discharge of wastewater triggers a series of deleterious impacts, e.g. - with the increase in eutrophication levels, there is a shifiting in dominance of phytoplankton flora in pond effluent from diatoms to blue-green
algae. decomposition of dead blue- green algae may lead to the generation of toxic substances, eg. ammonia, hydrogen sulphide etc. further, some of the blue-greens also excrete biotoxins in large quantities which are toxic to aquatic animals, <??> prawns in ponds or fishes in estuaries or coastal waters. large amount of blue-green algae was recorded by the inspection team in sirkali area (eg. s&s industries & enterprises ltd; high tide sea farms) and killai area (aqua gold shrimp farm; mrvaqua farm; mohi aqua farm). the presence of oscillatoria, microcystis and some other filamentous blue-green algae is undesirable in the pond effluent as they chock the gills of fishes. - the suspended solids released from the ponds are laden with unconsumed food and other organic contaminants. accumulation of these organics in the intake water creates problems in the intake water quality when the intake and discharge points are in close proximity. 6.2 contamination of soil and ground water
the shrimp farms are constructed well above the ground levels. seepage of pond effluent to the surrounding fields was noted by the inspection team in a number on farms. seepage of pond effluent <??> the soil quality in the adjoining aquacultural fields. it has also contaminated potable water in surrounding villages.
deterioration of ground water quality in villages that over one km away from the pond sites was not noticed. this observation is based on analysis of bore well water at three sites by the inspection team. this observation justified the locational constraints on aquaculture farms in coastal areas.
6.3 destruction of mangrove vegetation
the inspection team noticed destruction of mangrove vegetation at most of the prawn farming sites for the development of shrimp farms.
significant destruction of mangrove forest was observed hear the aqua gold shrimp farm at village vellar in killai taluk of south arcot district similarly on pichavarum estuary in village <??> in killai taluk of south arcot district of tn, the shrimp farms are constructed by clearing mangrove vegetation. mangrove vegetation in kuchipalam village is also facing threat due to the expansion of prawn farming activity. the final conclusions and recommendations are in para 5of the neri report which is as under:- "8.0 conclusions and recommendations on the attenuation of the impact of aquaculture farming on ecologically fragile ares in states of ap, tn, and union territory of pondicherry.
socio-economic assessment of aquaculture in the ecologically fragile areas in the states or ap and tn reveals that the cost of ecological and social damage far exceed the benefits that accrue out of the coastal aquaculture activities.
the mef's norms for location of aquaculture and hatcheries have been violated in the states of ap, in, and union territory or pondicherry.
the current practice of installation of coastal aquaculture farms within 500 m htl violates the fundamental rights and livelihood or people in the states ap and tn, and the union territory of pondicherry.
the current practice of installation of coastal aquaculture
farms within 500m htl violate the fundamental rights and livelihood of people in the states ap and tn, and the union territory of pondicherry.
the state of ap has adopted twenty point guidelines as ad hoc measures for management of aquaculture in the district of nellore. these guidelines have not been made mandatory in the state of ap as a whole. also, these guidelines do not address all socio-economic, and ecological aspects of coastal habitats.
the state government of tn has enacted a bill of provide for the regulation of coastal aquaculture on april 10, 1995. this bill is not in consonance with the mef's notification dated 19, 1991 as it allows the construction of aquaculture units within 500m of htl of the sea.
the cost of eco-restoration of the coastal fragile area must be borne by the individual entrepreneur of the commercial aquaculture farms in keeping with the polluter-pays principle.
no commercial coastal aquaculture activity should be undertaken even beyond 500m htl unless a comprehensive and scientific environmental impact asessment (eia) study has been conducted by the entrepreneur, and the environment management plan (emp) approved by the respective state department of environment, pollution control board, shore development authority, and also by the ministry of environment and forests.
agricultural lands are being converted into commercial aquaculture farms, which causes unemployment to the landless labourers and also in loss of cultivable land.
commercial aquaculture farms
are being installed near the cultivated lands and the salt water from the farms damages the productivity of the adjoining lands.
groundwater also gets contaminated due to seepage of impounded water from the aquaculture ponds.
desertification of cultivable land is on the increase due to salinity intrusion.
due to commercial aquaculture farms, there is a loss of - mangrove ecosystems - causarina plantations - grazing grounds for cattle - potable water to contiguous
population - fish catch - fishing nets - agricultural produce - manpower loss due to non-
approachability of fishermen to sea shore
directly. there is a perceptible
increase in the diseases of skin and eye, and water borne diseases in the contaguous population.
the designs of the acquaculture farms are inadequate. no provision has been made for wastewater treatment facility enabling recycling and re-use of wastewater.
prohibition on conversion of agricultural lands and salt farms into commercial aquaculture farms must be enforced with immediate effect.
no groundwater withdrawal must be allowed for aquaculture purposes.
free access through aquaculture unit to the sea coast must be provided to the traditional fishermen.
no aquaculture farm based on
brackish water should be installed on inland brackish water bodies.
wild seed collection from creek and sea must be prohibited. seed must be procured from hatcheries. if seed collection is noticed it must immediately be seized and dumped back into the creek.
a eco-restoration fund must be created by collecting the stipulated fees from the owners of acquaculture farms. in addition, one per cent of total export earnings per annum must also be collected from commercial aquaculture farm owners and used for rejuvenation of coastal eco- system with special reference to plantation of mangroves and common eco-sensitive zones. the wastewater treatment systemwith reuse and recycle must be installed by all units. the smaller units can form a co-operative and treat their water through common effluent treatment plant. the aquaculture units must be closed down if the wastewater treatment system is not functioning to its design efficiency. the second neeri report dated july 10, 1995 states thata 19 member team of scientists lead by dr. a.s. ball and dr.s.n. kaul inspected the shrimp farms situated on theecologically fragile coastal areas in the states of westbengal, orrisa, kerala, karnataka, goa, maharashtra andgujarat during may 20 and june 10, 1995. the summary ofsalient comments in the report regarding acqua-farming inthe state of west bengal is as under:- - organic pollution in creeks and estuaries with respect to bod deterioration - microbiological of water quality - accumulation of organic carbon and heavy metals in the sediments of shrimp farms - shannon weaver index values less than 3 indicate organic contamination - borewell water characteristics near m/s index port ltd., sarberia,
basanti, north 24-paraganas, show intrusion of salinity in drinking water source - conversion of land, and traditional fish farm at m/s index port ltd., north 24-paraganas - conversion of land, traditional fish farm, and mangrove plantation at m/s sundarban aquatics, south 24-paraganas - violation of crz regulations regarding high tide line (hil) has taken place at m/s sundarban aquactics, south 24-paraganas. in addition, violations of crz for setting up the aquafarm on creeks have taken place at the following places: - m/s index port ltd., north 24- paraganas - m/s sundarban aquatics, south 24-paraganas - all shrimp farms developed by bwfd at ramnagar, midnapore." the comments regarding the acqua-farming in the stateof orissa by the neeri team are as under:- "* organic pollution in crecks and estuaries with respect to bod * deterioration of microbiological water quality * accumulation of organic carbon and heavy metals in the sediments of shrimp farms * shannon weaver index values less than 3 indicate organic contamination * characteristics of borewell water samples near m/s sundeep aquatics, district bhadrak and m/s suryo udyog pvt. ltd., district balasore, show intrusion of salinity into drinking water * conversion of cultivable land for the establishment of aquafarms/hatcheries in all districts * violation of crz regulations by all aquafarms on creeks in the districts of balasore and bhadrak. hatcheries have been constructed/under construction
within 200m of high tide line (hil) in contravance of crz regulations." the status of acqua-farming in the state of kerala asindicated in the neeri report is as under:- "the comments on aquafarming in the state of kerala are presented in the footnotes of tables 2.2.1.7. summary of the salient comments is given hereunder: * organic pollution in river, creeks and estuaries * deterioration of microbiological water quality * accumulation of organic carbon and heavy metals in the sediments of shrimp farms * shanon weaver index valued less than 3 indicate organic contamination * well water characteristics in the vicinity of m/s agalapuzha aquafarm, kozhikode show the intrusion of salinity in drinking water source * conversion of land, and traditional fish farm by m/s vasu aquafarms at kozhikode * conversion of land, traditional fish farm, and mangrove plantation by m/s west coast aquafarms irinavu, kannur * violation of crz regulations regarding the location of aquafarms on creeks has taken place at the following sites. - m/s consolidated aquafarm, poyya, trissur - m/s jaladhi aquafarm, cherchi - m/s keetodiyal aquafarm, arookutty alleppey - m/s mejovi fisheries, irinavu, kannur". the report further indicates the status of acqua-culture in the state of karnataka as under:- "organic pollution in river, creeks, and estuaries shanon weaver index values less than 3 indicate organic contamination well water charactristics in vicinity of m/s raja ram bhat
aquafarm, hanmav, kumta show the intrusion of salinity in drinking water source conversion of agricultural land into shrimp farms was observed at - m/s popular aquafarm, tallur, kundapur - m/s raja ram bhat aquafarm, hanmav, kumta - m/s shri arya durga aquafarm, karwar destruction of mangrove vegetation by m/s popular aquafarm, tallur, kundapur was observed by the inspection team violation of crz regulations by aquafarms situated on the creek of razadi river at kundapur, hanmav creek at kumta, and hgnashree creeks were noted by the inspection team." the comments of the neeri report regarding acqua farmsin the state of goa are as under:- "* organic pollution in river, estuary and discharges from ponds * shanon weaver index values less than 3 indicate organic contamination * well water characteristics in vicinity of m/s govt. prawn farm, choraho indicate salinity intrusion * conversion of agricultural land into shrimp farm was observed by the inspection team at m/s sky pak aquafarm ltd., paliyam, goa * violation of crz regulations by all the aquafarms on the creeks, viz. masem creek at kankun, and chahora at pernem were observed by the inspection team.". summary of the salient comments on acqua-culture in thestate of maharashtra is as under :- "* organic pollution in river estuary and discharges from ponds * microbiological deterioration of water quality * accumulation of organic carbon and heavy metals in the sediments of shrimp farms * shanon weaver index values less than 3 indicate organic
contamination * conversion of agricultural land into shrimp farms * violation of crz regulations regarding location of shrimp farm on creeks, viz. dharamtar, satpati, and dahanu." the comments regarding to state of gujarat are asunder:- "organic pollution in river, estuary and discharges from ponds destruction of mangrove and shrubs in the marine zone by m/s gfcca, onjal and m/s sea crest pvt. ltd., mendhar violation of crz regulations for setting up the shrimp farms on the creeks, viz. kanai, ambika, and purna." para 3 of the neeri report dated july 10, 1995 gives indetail the impact of acquaculture farming on ecologicallyfragile coastal areas of india:-<sls> "3.0 observations on the impacts of aquaculture farming on ecologically fragile coastal areas of india 3.1 east coast * the shrimp farms at ramnagar, midnapur district are located right on the creek, and therefore, are not in consonance with the crz regulations * no wastewater/sediment treatment facilities exist at any of the aquaculture farms * no direct withdrawal of water from creek/estuary * no conversion of land has taken place except in cases of m/s index port ltd., north 24-paraganas and m/s sundarban aquatic farms ltd., south 24-paraganas * wild shrimp seedling collection by villagers including children is a common practice * m/s index port ltd., north 24 paraganas has created the following problems; - design of aquaculture farm is not proper, and no wastwater/sediment treatment
facility exists in this shrimp farm - intensive mode of operation creates wastewater problems. presently, there is no treatment facility existing for reuse and recycle of treated wastwater - deposition of clay in the intake water reservoir, and no proper mechanism exists for its disposal - seepage from the bunds create additional problems around the farm - inspection team observed that groundwater in the vicinity of this aquaculture farm has become saline - conversion of agricultural land, and traditional fishing farm - barbed wire fencing along the periphery of the farm has resulted in restriction to free access for the farmers, fishermen and cattle to the creek - m/s sundarban aquatic farms ltd., south 24-paraganas has created the following problems ; - conversion of agricultural land, traditional fish farming, and mangrove plantation - the aquafarmis located below ground level. therefore, it is difficult to assess the seepages from this farm unless peizometers are installed around the aquafarm - a well designed sedimentation tank is being used as a wastewater treatment system. however, it is not adequate. necessary arrangement have to be made for recycle and reuse of wastewater - no provision exists for treatment of sediments - the location of the aqua-farm is not as per mef notification dated february 19, 1991, keeping in view high tike line, and minimum distance from the creek
the important areas of environmental concern regarding shrimp farming in the state of orissa are world bank aided projects -
narendrapur, bhadrak district world bank aided project comes
within the national park area. therefore, it is desirable that this project proposal must be dropped. it was also informed to the inspection team that two private shrimp farms are in operation at present near the proposed world bank aided project which must be closed immediately, in view of proximaty of the national park - beidipur, bhadrak district there are plans to construct large shrimp farms. it is necessary to mention that this area is prorusely covered with wild sea weeds, which has direct relationship with the ecology of the marine biota. keeping this aspect in view, a detailed eia is required before finalizing the development of shrimp farms in the area which must include private farms in the region in addition, there is a salt dyke which prevents the flow of sea water into the agricultural lands. it is worth mentioning that more than 50 shrimp farms, 1 ha, each have come up in this area. this leads to conversion of fertile agricultural lands into brackishwater based shrimp farming resulting salinity, intrusion and desertification of land - jagatjore - banapada, kendrapara district construction work of shrimp farm is in progress. mechanised systems for excavation, and construction are being used. in addition, inhabitants are prosecuted. there is a signpost "trespassers will be prosecuted". it was informed to the inspection team by the nearby villagers that this place was used for agriculture. farmers, fishermen, and cattle had free access to the nearby creeks. now it has been limited to a large extent.
in addition, the inspection team was informed about indiscriminate cutting of mangrove bushes around the area. this project must be reviewed critically keeping bhitar kanika wild life sanctuary in view local entrepreneurs have started small shrimp farms of about 1 ha each. this will cause waterlogging problems in the area. finally, the high tide line (htl) just touches the saline dyke. therefore, world bank project proposal and other shrimp farms fall within 500 m of htl, and do not conform to the mef's notification dated february 19, 1991 * chilka lagoon the silt carried by two main rivers, viz. daya and bhargabi gets deposited in the lagoon. there is little exchange of water from the sea because the mouth of the lagoon (35 km long) has been blocked by three factors, viz. - silt - improper mixing, and - large clusters of shrimp farms hinder the pasage of water into/out of the lagoon the bird sanctuary at nalaban has also been affected by siltation and shrimp farming activities. 35 km of the canal mouth of the lagoon needs immediate attention, because the exchange of sea water into and from the lagoon is vital from ecological considerations. in additions deposited silt has to be removed, shrimp farms must be closed down immediately to restore the chilka lagoon, to its original ecological condition by application of scientific management practices * subarnarekha mouth a large number of shrimp farms have come up on both sides of the lower reaches of the subarnarekha river to utilise the tidal brackish water as observed by the inspection team. it was reported to the inspection
team by local people that this has resulted in water logging in upper reaches of subarnarekha river * the inspection team observed that the shrimp farming is at least three times more than what has been presented by the state govt. of orissa * all the shrimp farms do not observe the mef notification dated february 19, 1991. the creek/estuarine water based shrimp farms are also not observing the crz guidelines of mef agricultural land is being converted to shrimp farming because of land reform act of govt. of orrisa * artificial creeks are being constructed to allow high tides of creek/estuarine water into the large reservoir. in addition, this factor must result in flooding of low lying areas * reservoirs act as a setting cum concentration basin. therefore, it is necessary sometimes for the shrimp farmers to dilute this water by withdrawing groundwater, resulting in depletion of groundwater resources in the nearby villages. in addition, groundwater has become saline. this is confirmed by the situation in adhuan village in bhadrak district * the shrimp farming has resulted in several social problems viz. - denial of free access to fishermen - denial of job opportunities - conversion of agricultural land to shrimp farming - social displacement - salination of groundwater - reduction in grazing ground of cattle, and free access to creek/estuarine water * wild shrimp seedling collection is still in practice. this will have detrimental effect
on the ecology of the sea, creek, and estuarine waterbodies * direct pumping from the creel/estuarine water system is being practiced. this results in reduction of fish catch and most of stopped immediately * no shrimp farm had any type of wastewater and sediment treatment systems including hatcheries * all hatcheries are located within 200 m of the htl in contravance of the mef's notification dated february 19, 1991. it is necessary to stop the commissioning of all new hatcheries which are not being constructed as per crz regulations * intake points and wastewater discharge channels of the prawn farms are nearby. this is not a scientific water management of shrimp farms * it has been observed by the inspection team tat some shrimp farms have barbed wires along the periphery of project site, e.g. - m/s deep sun culture pvt. ltd. - m/s surya udyog pvt. ltd. - m/s manas prawn farm
therefore, there is no tree access to creek and estuarine water for the fishermen and cattle. 3.2 west coast * the shrimp farming activity in the west coast is mostly confined to the traditional extensive type of farming. limited number of commercial shrimp farms having areas more than 5 ha, working on the semi-intensive type have been installed in the coastal areas since last 3 years. * though in limited numbers, prawn farms working on the semi- intensive type specifically in the states of karnataka, maharashtra, and gujarat are situated within 500 m of high tide line of the sea, which is not in consonance with mef's notification dated february
19,1991 * incidence of conversion of agricultural land into coastal aquaculture units, which infringes the fundamental right to lite and livelihood, could be noticed in states of karnataka (kumta taluk), maharashtra (ratnagiri district, and palghar taluk) and in gujarat (valsad district) * in states situated on the west coast of india brackish water aquaculture units have been mainly installed along the estuaries and river banks, where impounded backwater is being used for shrimp farming. such practices of extensive type of farming may not have significant adverse impact on environment due to the fact that limited quantities of brackish water are required for recharging these ponds, and the wasterwater generation is negligible. however, this practice of utilisation of backwaters will prove to be unsound if carried out for large scale farms using semi-intensive type of farming * villages situated along the sea coast, and backwater zones, specifically at gunda, kumta and karwar (karnataka), palghar and dahanu (maharashtra), and valsad (gujarat) are under threat due to conversion of land into aquaculture farms * in the state of karnataka, the inspecting team observed that m/s murudeshwar food and export ltd. prawn aquafarm units are located within 100 m of htl the intake and discharge points of m/s samudra aquafarms and m/s skyline biotechnologies pvt. ltd., kagil, kumta are very close to each other which may create problems or contamination in the ponds. the prawns grown in these farms were reported to be affected by vital infection. disposal of sediments
from the ponds was also observed to be carried out on the side of the river * it was also observed by the inspecting team in the state of karnataka that aquafarm of m/s rajaram bhat pvt. ltd. at monnavar in kumta taluk has been installed on the periphery of the village. the bunds constructed for making the ponds have obstructed the free flow of storm water, and domestic wastewater from the village to sea and this has created health hazards for the villagers. intrusion of saline water in the soil was also observed, and reports on damage o coconut plantations in nearby areas were also received. contamination of drinking water sources due to saline water intrusion was observed * in the state of karnataka, m/s agnasana aquafarm pvt. ltd. has come up adjacent to a school in village gunda, and the constructed bund of the pond touches the compound of the school. seepage of saline water from the bund and subsequent damage to the foundation of the school building, and damage to coconut plants in nearby areas was observed. such practices of allowing the ponds to come up near residential and public utility places must be stopped immediately * coastal aquaculture has resulted in loss of mangroves ecosystems to a limited extent of the west coast. however, significant destruction or mangroves could be noticed in the coastal areas of the districts on karwar a kumta (karnataka), palghar & shrivardhan (maharashtra), and valsad (gujarat). since the mangrove ecosystems provide natural habitat for spawning of marine biota, the practice of indiscriminate destruction of mangrove ecosystem due to installation or shrimp farms must
be stopped * no proper peripheral drainage has been provided around the aquaculture ponds following semi- intensive mode of farming in the states of kerala, karnataka & maharashtra, and the wastewater from the ponds was observed to be discharged into the receiving bodies without treatment * the brackish water intake and effluent discharge ponds for the ponds are located in close vicinity resulting in contamination of feed water of the aquaculture units. the situation is predominant at kumta (karnataka), palghar (maharashtra), and valsad (gujarat) where a large number of medium and large aquafarms have been installed * since large number of medium and big farms have been installed on the coastal areas at places mentioned above, the wastewater discharged into creeks and back water zones is not properly flushed out during low tide, thereby, affecting the intakes water quality of aquaculture farms. * the situation in the state of goa has not reached such an alarming situation as yet due to limited number of farms, and abundant quantities of backwater available in the riverine zones of zuari and mandavi rivers. however, future expansion of the shrimp farming practices warrant careful control, in view of tourism potential of the state * shrimp farming activity in the state of gujarat is presently confined to the coastal areas of valsad, bharuch, and surat. two large commercial shrimp farms are proposed to be installed in the jamnagar district where salt farms are being operated currently. sanctions for such installations warrant careful consideration to avoid damages to the highly
ecosensitive coral reef zones near this coast. the conclusions and recommendations as given in para ofthe neeri report are as under:- "7.0 conclusions and recommendations on the attenuation of adverse impacts of aquaculture farming on ecologically fragile coastal areas 7.1 east coast * the shrimp farming activity in east coast is mostly confined to the traditional and extensive mode. however, a large number or commercial shrimp farms have started functioning on modified extensive, semi-intensive; and intensive modes since last three years * the large scale shrimp farms and hatcheries have violated crz notification of mef dated february 19, 1991 in the states of west bengal and orissa * incidence of conversion of agricultural land into coastal aquaculture units which infringe upon the fundamental rights to life and livelihood were <??> particularly in the state or orissa * it is desirable to establish aquaculture farms on modified extensive mode. semi-intensive and intensive mode of aquaculture must not be adopted in the states or west bengal and orissa * maintenance of quality of the feed, and stocking of healthy seed from the government approved hatcheries associated with appropriate water management practices warrants proper attention in the prawn farming activities of the coastal areas * the proposed guidelines for shrimp farming in the state of west bengal do not address all socio- economic, and ecological status or coastal habitats. * the state of orissa has not formulated any guidelines related
to aquaculture practices * the cost of eco-restoration of the coastal fragile area must be borne by the individual entrepreneurs of the commercial farms in keeping with the polluter pays principle with specific reference to. - sunderban mangrove/littoral forest, west bengal - chilka lagoon, orissa - bhitar kanika wild life sanctuary, orissa - national park, orissa - subarnarekha mouth, orissa
no commercial coastal aquaculture activity should be undertaken even beyond 500 m htl unless a comprehensive and scientific environmental impact assessment (eia) study has been made by the entrepreneur, and the environment management plan (emp) approved by the respective state department of environment, pollution control board, and also by the mef * agricultural lands are being converted into commercial aquaculture, which causes unemployment to the landless labourers and also in loss of cultivable land * groundwater also gets contaminated due to seepage of impounded water from aquaculture farms due to commercial aquaculture farms, there is a loss of - mangrove ecosystem - grazing grounds for cattle - potable water to contiguous population - fish catch - agricultural produce - economic loss due to non- approachability of fishermen to creek, estuary and sea directly * the designs of the aquaculture farms are inadequate. no provision has been made for wastewater
treatment facility enabling recycling and re-use of wastewater in shrimp farms and hatcheries to minimise water exchange. in addition, there is a necessity to treat deposited sediments from the shrimp farms. sediments can be converted into manure for land application after proper treatment * prohibition on conversion of agricultural land must be enforced with immediate effect * wild seed collection from creek, estuary, and sea must be prohibited. seed must be procurred from hatcheries * an eco-restoration fund must be created by collecting the stipulated fees from the owners of aquaculture farms. in addition, one percent of total export earnings per annum must also be collected from commercial aquaculture farm owners, and used for rejuvenation of coastal eco-system. the wastewater treatment system including sediment control with reuse and recycle must be installed by all unites. the smaller units can form a co-operative, and treat water through common effluent treatment plant. the aquaculture units must be closed down if the wastewater treatment system including sediment control is not functioning to its design efficiency * a strict vigilance by the state departments of fisheries and pollution control board is required to keep a check on pollution abatement measures, it may be mentioned that even a small, one <??> shrimp farm can be<??> to i.e. modified-extensive; semi- intensive, and intensive. therefore, strong control measures for production and pollution (wastewater and sediments) are essential * water (from sources such as
creek, estuary or sea) cess must be charged from the shrimp farm owners * cultivable lands must not be converted for aquaculture. there is a perceptible difference between cultivable and not cultivated land. thus, even if aquaculturist buys agricultural land and keep them fallow for say 2 or 3 years that does not mean that the land has become non-cultivable. currently almost all the farms that exist are cultivable lands except those in midnapur district (7 aquafarms in wastelands). even these farmers who do not sell their land to prawn farm owners, are affected due to lack of drainage from paddy fields which in turn cause flooding of the crop during rainy season * the location of shrimp farms in midnapur district on wasteland developed by the department of fisheries, govt. of west bengal fulfills all scientific conditions except ; - crz guidelines for creeks - wastewater & sediment management practices, and - mode of operation which is mostly semi-intensive and intensive * there are two commercial aquaculture units in the state of west bengal, viz, m/s sunderban aquatic farm ltd., and m/s index port ltd., which are violating crz regulations of mef dated february 19, 1991 as discussed hereunder. - m/s sundarban aquatic farms ltd.: conversion of agricultural land & traditional fish farm, and destruction of mangrove plantation have taken place. in addition, this farm falls within 500 m from htl., further, crz regulations for location of aquaculture farm near the creek have also been violated - m/s index port ltd.; conversion of agricultural land & traditional fish farm have taken place. groundwater has become
saline around the farm. shrimp farms are not well designed resulting in seepage. barbed wire fencing has restricted free access to farmers, fishermen and cattle to the creek. in addition. crz regulations for location of aquaculture farm near the creek have also been violated
no treatment facilities have been provided by both the farms
it is necessary to review the world bank aided projects and commercial shrimp farms in and around chilka lagoon, keeping in view the mef norms dated february 19, 1991 in the state of orissa, viz. - narendrapur project must be abandoned as it is within the national park. also the existing commercial farms in operation must be closed down - bideipur project requires eia studies. several farms have come up on the other side of the saline dyke which must also be included for evaluation in the eia studies - jagatjaore-sanaspada project is within 500 m htl. farmers, fishermen and cattle earlier had free access to the nearby creek, which has been limited to a great extent due to the commercial shrimp farming activity. also indiscriminate cutting of mangrove bushes has been reported. this project must, therefore, be reviewed critically keeping bhitar kanika wild life sanctuary in view * the commercial shrimp farms in chilka lagoon must be abandoned keeping in view the ecological condition of the lagoon and also the location of national bird sanctuary. 7.2 west coast * mef's norms for location of aquaculture farms and hatcheries have been violated at many places in the states situated on west
coast of india the current practice of
installation of coastal aquaculture farms within 500 m htl violates the fundamental right and livelihood of people in the coastal states * the states of kerala, karnataka, maharashtra and gujarat have neither formulated nor adopted any guidelines in consonance with crz-notification, ministry of environment & forests (mef), govt. of india for scientific control and management of the shrimp farms in the respective states. these states must formulate and adopt legislative acts for proper management and regulation of existing shrimp farms in the respective states * the state government of goa has enacted a bill dated november 17, 1994 in order to regulate, promote and manage the shrimp farms in this state, in a scientific manner. however, this bill is <??> in consonance with the mef notification dated february 19, 1991 as it allows the construction of aquaculture units within 500 m of htl of the sea. the <??> is limited to the guidelines pertaining to the allotment of lands for the entrepreneurs * the cost of eco-restoration of the coastal fragile area must be borne by the individual entrepreneur of the commercial aquaculture farms in keeping with the polluter pays principle * no commercial coastal aquaculture activity should be undertaken even beyond 500 m htl unless a comprehensive and scientific environmental impact assessment (eia) study has <??> conducted by the entrepreneur, and the environment management plan (emp) approved by the respective state department of environments pollution control board, shore
development authority, and also by the ministry of environment and forests * commercial aquaculture farms are planned to be installed near the cultivated lands in all the states of west coast. salt water from the farms results in damage to the productivity of the adjoining lands * groundwater also gets contaminated due to seepage of impunded water from the aquaculture ponds * desertification of cultivable land can result in increased saline intrusion on west coast due to commercial aquaculture farms, there is a loss of - mangrove ecosystems - casurina plantations - grazing grounds for cattle - potable water to contiguous population - fish catch - fishing nets - agricultural produce - economic loss due to non- approachability of fishermen to sea shore directly * the designs of the aquaculture farms are inadequate. no provision has been made for wastewater treatment facility enabling recycling and re-use of wastewater * prohibition on conversion of agricultural lands and salt farms into commercial aquaculture farms must be enforced with immediate effect * wild seed collection from creek and sea must be prohibited. seed must be procured from hatcheries * an eco-restoration fund must be created by collecting the stipulated fees from the owners of aquaculture farms. in addition, one percent of total export earnings per annum must also be collected from commercial aquaculture farm
owners and used for rejuvenation of coastal eco-system with special reference to plantation of mangroves and common eco-sensitive zones. the wastewater treatment system with reuse and recycle must be installed by all units. the smaller units can form a co- operative and treat their water through common effluent treatment plant. the aquaculture units must be closed down in the wastewater treatment system is not functioning to its design efficiency * drainage canals must be constructed around the existing ponds to collect seepage from the pond which will prevent the intrusion of saline water into the adjoining agricultural fields & residential areas. the design and construction of the drainage canal/bund must be undertaken scientifically based on the topographical features of the area. this will avoid the flooding of the area with saline water, and will help in restoration or hygienic & sanitary conditions in the nearby residential areas." the two neeri reports clearly indicate that due tocommercial acqua-culture farming there is considerabledegradation of the mangrove eco-systems, depretion ofcasurina plantations, pollution of potable waters, reductionin fish catch, and blockage of direct approach to the sea-shore. agriculture lands and salt farms are being convertedinto commercial acqua-culture farms. the ground water has gocontaminated due to seepage of impounded water from theacqua-culture farms. highly polluted effluents aredischarged by the shrimp-farms into the sea and on the sea-coast. a report titled "expert committee report on impact ofshrimp farms along the coast of tamil nadu and pondicherry"has been placed on the record, justice m. suresh, a retiredjudge of the bombay high court, mr. a. sreenivasan, jointdirector of fisheries (retd.), dr. a.g.k. menon, anichthyologist, mr. v. karuppan i.a.s. (retd.), dr. m.arunachalam, lecturer, centre for environmental sciences,manommaniam sundaradar university, tamil nadu and dr. k.dakshinamoorthy, a medical surgeon constituted the "expertcommittee" (suresh committee). although the investigation by
the suresh committee was done at the instance of "complaintagainst shrimp industries" but keeping in view the status ofthe committee members and the factual data collected andrelied upon by the committee it would be useful to examinethe same. the suresh committee visited various villages intamil nadu and pondicherry and gave its findings based onthe evidence collected by the committee. some of thefindings of suresh committee are as under:- "the farmers of perunthottam told us that they have sold nearly 140 acres of their own lands to the bask company and 40 acres to the bismi company. evidence was also given to us showing in the lands purchased by bask farms, where three or two crops were being cultivated. it also revealed that the percentage of yield was as much as <??> details regarding this are found in annexure 15. the bismi company has erected a pipe line till the boundary of the farm for draining sea water. it is yet to be connected to the sea.
the bask company is situated at a distance of 150 m from the scheduled caste households. bask aqua farm is situated within 500 m from the sea and the distance of bismi aqua farms is just 25 m from the sea. during our visit, we found bask farms engaged in construction of prawn farms on agricultural lands that had been purchased (photo no. 23 & 24) ......... representative of perunthottam village also shared before the expert team that the yield obtained from the fields adjacent to prawn farms were affected. moreover the villagers have lost their access to potable water as the water tables have become alkaline due to the seepage of sea water from the prawn farms. bask farms have been using ground water for nearly two years crop. the managing director confirmed this before the expert team." the committee visted pichavaram vedaranyam on july13th/15th, 1995 and observed as under:-
"it was observed that the palmyrah trees in this area which is the most drought resistant tree has dried after the onset of prawn farms in this area. majority of the coconut trees have dried up and few remaining have stopped yielding fruits.
the unanimous opinion of the people is that most of the mangrove species are on the decline. these mangroves serve as a source of <??> wood for domestic purposes, grazing ground for animals, water way for locals and tourists and an important habitat for fisheries increasingly polluted because of the effluent discharged by the shrimp farms. they also brought to our notice the greater value of the mangrove as a stabliser of the coast and how, because of this being disturbed by the destruction of the palmyrah, coconut and casuarins grooves, coastal erosion has become common." regarding visit to pudhupetti, the committee stated asunder:- "we visited pudhupettai on 14th july in order to get a first hand knowledge about the impact of farisa aqua farm details of which was narrated by the pudhupettai representative to the expert team on 13th july at nagai. we saw the pucca construction of the <??> farm's jetti into the sea to enable the pumping of the sea water. this clearly is acting as a hindrance for the free mobility of the finishing community and their access to sea and land................all these three farms are situated within 25 m from the sea. further these farms are closely situated to the dwelling houses also. coastal enterprises is situated at a distance of 20 m, the farisha aqua farm at a distance of 250 m and blue base aqua farm at 20 m from the dwellings of
perumalpettai the next fishing village from pudupettain. there is a fourth enterprise namely abhirami aqua farms which owns about 150 acres of wet land has not commenced work as yet...........pipes have been laid to discharge effluent either to the sea, or adjoining dry lands belonging to the village or to the water channel used by villages for bathing. effluent is also being discharged close to the dwelling houses. in particular, "effluent is being collected right in front of my house" said kalvikarasi a resident of pudupettai village who made a representation to the expert team on july 13th. she said that "drinking water in the village is now turning salty". ................the advantages of shore seine net fishing is the abundant catch of "anchovy" fish which has commercially viable market. the construction of permanent jetties has eliminated the `shore seine net fishing. shore seine net fishing needs uninterrupted coastline and it has become an impossibility in pudupettai. about 10 shore seine nets are idle in the village. the construction of pipe to discharge effluent is a permanent one. by construction of the permanent jetties, the natural sand dues in the village were destroyed. these sand dunes are a natural cyclone barriers. hence a threat of cyclone barriers. hence a threat of cyclone is imminent since these natural cyclone barriers are destroyed.
the construction of pipelines ending in the sea for pumping in sea water has damaged nearly 10 nets worth rs.60,000/-. details of nets damaged is given in annexure 19. the coastal enterprises ltd. has encroached the burial ground of pudupettai and blue base aqua farms
has encroached the burial ground of perumalpettai. the committee visited the pullicat take area on july18, 1995. the findings of the committee are as under:- "ecologically the tamilnadu part of the pulicat lake is important since it has the only opening of the lake into the sea thus functioning as the migratory route of these spawning animals like prawns, fish and mud crabs. the mud rlats of pulicat lake harbours a number of winter migratory birds. e were told that the water fowl sanctuary at pulicat is slowly being destroyed, .........we observed that prawn farms are located all around the wetland. in the northern region of the lake prawn farms are situated even in the lake-bed. maheshwari export india ltd is constructing a prawn farm across the pulicant lake bed clearly violative of the tamilnadu aqua culture regulation act. we also noticed water being pumped out from the lake into the prawn farms.
according to dr. sanjeeva raj, pulicat lake has two bird sanctuaries namely yedurapattu and nelapattu. it is estimated that nearly 10-15 thousand of flamingoes and other rare birds visit the pulicat lake for four months only for feeding all the way from rann of kutch. other water birds like pelicans, cormorants, egrets and herons breed at nelapattu and feed at this pulicat take. at yedurapattu, painted storks, pelicans, and open bills also feed here. in 1993 it was estimated that there was 10000 to 15000 flemingoes. by 1994 this has been reduced to less than 1000. the reason for this can be attributed to the effluent from prawn farms which kills the organisms on which the flamingoes feed. the depletion of natural feed could have caused this reduction. ..........the
tamilnadu forest department is establishing a third sanctuary in the southern tip of pulicat lake. we were told that due to the noise of oil engines, bulldozers and other disturbances by the prawn farms many birds especially painted storks have deserted this lake
dr. sanjeeva raj also states that pulicat is ecologically very sensitive and fragile. the east coast is vulnerable to cyclones, with the hundreds of prawn farms along the coast excavating sand along the coast line every possibility existed for inviting the sea to enter and destroy the water table. further, prawn farms destroys sand dunes and vegetations and in times of tidal waves sea water could enter in a big way.
further, dr. sanjeeva raj said that pulicat lake is fairly shallow with an average depth of about 1.5 m. it can be described as a saucer. the pumping of water by aquafarms up of the lake. added to this the road, from sulurpet that has been constructed for reaching the shriharikotta rocket launching site through the lake has obstructed free flow of water. it is generally claimed by the prawn farm owners that the land on the eastern <??> of the road is not the part of pulicat lake and hence prawn farms can be constructed. this is false as all this land area is part of the pulicat lake. the tragedy is that if prawn farms are erected on the higher side of the lake, the effluent from the prawn farms will flow back into the lake causing serious damage to marine and estuarine biota..........pasiapuram rajiv gandhi nagar has a dalit hamlet edamani. this hamlet had a water tank which provided water to the nearby 35 villages. the source of water was the villages. the source of water was the village
ground water. but due to the impact of the adjoining farm the water became saline making it unsuitable for consumption.
an eminent danger by the prawn companies is to the village called jamila badh. this village has 150 muslim families (fisher). they were originally living in the land on which the shriharikotta space research station is built. these families were relocated by the government promising jobs and providing free housing site near the pulicat lake. the built their own huts at the cost of rs.5000 each. these huts today face serious flood threat since on both sides of the village two prawn enterprises have obstructed the ponneri lake water to flow in to the sea. this obstruction due to the construction of prawn farms floods the village. from 1991 till date every year water reaches the boundary of the village and before it could enter inside nearly 2000 village people manudily divert the water to the sea. though the village people have made representation and protested to the owners, they use their economic and political power to scare the fishing people and make them live in a permanent state of fear, people also told us that they areaffected by itching, scabies, and lever which could be due to the dischargeof effluent." the committes' observations regurding karaikal districtpondicherry are as under: "as quoted by the pondichery science forum, :karaikal region has only 20 kms of coastal stretch. this coastal stretch is of environmental significance as the area and its environs have creeks and lagoons beaches with dunes, coasted platns, natural reeves, flood plain and is also the tail end of the cauvery river basin, karaikal is considered as the
granary of pondicherry and has main irrigation canals like nini kattalai pidari kattalal and arasapuram:.
the ground water reserves of karaikal is frightfully meagre but for the only sweet water aquifer at about 10 to 20 ft deep there is no other potable aquifer. this water source cannot be expionted continuously since it takes time to recharge and poses danger of sed water intrusion. only manual hand pumps are being used to tap this water at present.
it is in this context karaikal is posed with the serious danger of loosing this sweet water aquiter as most of the small prawn farms are in the process of deriving water during the high tides from the rivers like. mullaiyar, thirumalairayananar. arasalar nandalar and pravidayanar and also use ground water for shrimp culture. this continuous withdrawal of fresh water will alter surface water resources. so, there is no possibility for the recharging mechanisms as the wet lands near these river basnis are converted to aquafarms and these wet lands have lost their function of absorbing rain water and recharging the aquifer zones." the conclusions reached by the suresh committee undervarious headings indicating the impact of shrimp culturefarming on environment are reproduced hereunder; "(a) effluent pollution
as shrimp culture using high protein feeds is a highly polluting activity. presently 78,000 tonnes feed is used in india in shrimp culture. this is bio-degradable, if properly treated. it leaves behind responded solids (organic) and the decomposition liberates inorganic n and p.77.5% of n and 86% of p from the feed are worked and enter the pond environment. 1 ton or p.monodon production results in a
pollution load of 56.3-48.1 kg n and 13.0-24.4 kg p. (phillips et at 1993. iclarm. conf. proc 31 1/1 198).
excess amounts of p and n are detrimental to environment (<??> 1994 sacmonid xvii (4); 10-14). these lead to "hyper eutrophication" resulting in massive algal blooms and oxygen depletion which are harmful to aquatic like. these blooms such as "red tide" cause fish mortality. the effluent quality during harvesting the shrimp <??> is: total nitrogen 1900-2600 ppm, total 0 48-110 ppm and organic carbon 7.3-13.7 ppm. the impact of this is the reduced oxygen, hyper nitrification, alteration of community structure, sedinextation, changes in besithic communities etc. (phillips et al 1993).
further "self pollution" results from feed wasted, which becomes unmanageable (lmre csavas 1994. shrimp news international, march-april 1994). organic wastes, solid matter, dissolved metabolites like ammonia, carbon-dioxide are produced. decomposing organic matter depletes oxygen from water. admittedly being biodegradable the effluents consume oxygen and so denude the water of its oxygen. when there is oxygen deficit, fish avoid such low oxygen zones and move further away to oxygen saturated zones and when there is oxygen depletion fish die en-masse. fishing village near whose coast shrimp ponds have come up - fish have become scarce and the artisanal fishermen have to go further away from shore to catch fish. population of fish and their diversity decrease. ............with regard to farm effluents being treated and discharged into the sea and other water bodies. we did not see or
hear about any such scientific process of effluent treatment having been set up by prawn farms. in m/s bask farms we were shown two partially dry sedimentation tanks. we saw untreated effluents from m/s amaigam shrimp farm being discharged <??> the beach (not even into the sea causing degradation of the <??> shore with dark brown, four smelling organic matter, which is a <??> hazard. the joint director, mplda itself has stated that "most of the farms have not set up effluent treatment systems. (b) slinisation
the dominant species of shrimp cultured is penaeus monodon the tiger prawn and next comes the white prawn, p. indicus. both are marine prawns. p.monodon grows best at salinities of 10-20 p.pt (20%) but tolerate slightly higher or lower salinities. p. indicus requires higher salinity 20-30 ppt. thus seawater is the primary medium of growth. seawater or salinity 55- 36 ppt is taken into the ponds. the growing period ranges from 120-150 days. sea water is periodically replaced. sea water is periodically replaced. sea water remaining in the pond for a long period seeps into neighbouring areas where agriculture is practiced and salinizes the soils which therefore lose their productivity for crops and become unfit for agriculture. even assuring that the 500 m zonation is enforced it will not solve the problem of salination. agriculture lands, inwards (towards inland) of shrimp ponds will become saline and the chain reaction will continue. ............ many shrimp industries assert that they are taking only sea water for shrimp culture and do not use ground water. sea water has a salinity around 35 ppt. it is mostly penaeus monodon the tiger shrimp. this
needs a salinity in the range of 15-20 ppt for optimum growth. 30 the shrimp producer have necessarily to dilute it to bring down the salinity by adding fresh water. let along ground water, we have even seen river water being pumped near poompuhar into to shrimp ponds. .............. salinization is not only possible but has actually happened all over the world. the bhagwathi institute of environment and development, analysed numerous samples of water adjacent to shrimp farms in sirkali taluk, tn, and found that in most of them chlorides exceeded the permitted limits even by over 100 times for eg.15265 mg/1 in drinking water source near suryakumar shrimp co. mahendrapalle. in kurru village, nellore district, drinking water became saline after four shrimp farms were established and 500 people of this village had no drinking water (vandana shiva 1994, "social and environmental impact or aquaculture). dr. alagarswami, director ciba identifies salinization of drinking water, wells, dwelling units adjoining agriculture lands and aquifers as critical issues in shrimp culture. (national workshop on transfer of technology for sustainable shrimp farming, ms. swaminathan foundation madras, january 9-10, 1995) dr. v. gopalakrishnan, former fao export says "salt water seepage problem appears to be genuine and such area should be avoided for establishing new shrimp farms" (fish & fisheries, newsletter no 4 january 1995). dr. sanjeevaraj noted that in political lake, saltwater from prawn ponds was known to be seeping into drinking water tables (copdanet newsletter winter 1994). ........... we have noted the salinization of drinking water in pudukuppam, naicker kuppam,
poompuhar, perunthottam,pudupet, etc in sirkali taluk caused by large shrimp units and also in a very acute manner in pattinamarudur, iluticorin, voc district which is sandwitched between two large farms viz. dtc and mac aqua farms ltd. (c) feed and wastes
in a moderate 3 t/ha yield of shrimp, 4-6 t/ha feed is applied while for a yield of 5t/ha it is 15t/ha. the magnitude of putreseible organic matter from these wastes is enormous. hence, the practice of discharging such effluents into common water bodies needs to be strongly discouraged because of the strongly polluting effect (mackintosh. d.j. infofish. international 6/92. 38/41). feed wastes are more toxic than sewage and this is a sufficient ground for banning industrial shrimp culture. ..............the team found that amalgam marine harvests, was blatantly discharging the effluents into the foreshore narrow sandy breach at pudukuppam. this has spoiled the aesthetic appearance of the beach. the area is dark brown in colour and foul smelling. this will pose a serious hazard to public health. the wastes also enter "uppanar" stream hardly 5 m away from discharge point. this is illegal and affects the health of villages. settleable solids silt up the ponds and canals. over accumulation of detritus leads to profusion of protozoa, and ciliates, which cover the body of pisa, respiratory diseases, loss of appetite, black gill disease, shell disease, foul smell of internal parts, tail rot etc are caused on such unhealthy pond conditions. the quality of effluents discharged into the environment are so poor that biological methods will not be sufficient to treat them. most of
the environmental troubles are caused by the industrial shrimp. the coastal zone used for culturing aquatic organisms is only a narrow strip on the continental shell and on the low lying flatlands. hence the very fragile nature of the coatal ecosystem is getting destroyed. (d) fertilizers and therapeutants
large quantities of feeds are being used and fertilizer applications are generally minimal. lime is regularly used but continued use of lime impoverished the soil. it also hardens the soil.
however, it is the use of therapeutants that is highly destructive of the environment. a very incisive account of the use of drugs in aquaculture is available from p. de. kinklein and c. michael (infofisl international 4/92; 45-46 1992) and an exhaustive report is provided by fred p. meyer, an authority on the subject. (review in aquaculture sciences ve 1 (4): 693-710 1989). however the use of drugs has only aggravated the damage to environment. sulpha drugs, tetracyclines, quinolones, nitrofurans, macrolids (for <??> erythromycin). chloramphenicol, and dozens of similar drugs are in use. organophosphoruscompounds like dichlorvas are also used. formalin, malachite green copper sulphate, quaternary ammonium compounds, iodophores, chloramine -i etc., are used as sanitizers.
viruses cannot be treated by any of the drugs. renibacterium sp is also resistant to drugs. chemotherapy leads to transit of drugs and their long persistence. rebase of drugs or their metabolites into the environment affects the non-target organisms. uses of steroids (di-dehyl in ponds has carcinogenic effect on humans. use of chloramphenicol has
unpredictable risks for human beings. effluent treatment and self-recovery are hampered by the drugs by suppressing saprophytic bacteria involved in purification processes. softs accumulate drug residues. (e) loss of mangroves and biodiversity
we observed that removal or destruction of these important mangrove habitats for establishing shrimp farms is becoming increasingly common along the coast of tamilnadu. from the photographs (no. 40-45 showing the destruction of mangroves-bunds are already built), it is evident that there are several shrimp farms on the banks of pitchavaram mangrove forests a valuable habitat. for the farms, water intake from the habitat will lead to virtual dryness of the habitat and the loss of biodiversity in this valuable reaim. it is evident that the consequences are felt by the existing farms (palmyarh and coconut trees in nearby farms are withering - photograph no.46 & 47). the destruction of the mangroves (photo no. 40-42) for shrimp farm will be a major cause for the loss of habitat diversity along the coastline of tamilnadu. we are going to lose a valuable gene pool and thus conservation of mangroves genetic resources from the activities of shrimp industry is a matter of primary urgency. (f) loss of biodiversity in cauvery flood plain and delta
the stagnation of water in this lower reaches is due to the illegal damming at several places along the course and the obstruction of feeder canals and distributors to the main river. once considered a best estuary and the delta of cauvery are now vanished (photo no.48 showing the
ill fated cauvery). also in the lower reaches in nagai district, tamilnadu, low land drains regulator has been used for their effluent release (photo no.49) showing the block and the p.w.d. feeder canals are either blocked by the farm owners or using as drainage for effluent release by amalgam marine harvests ltd at pudhukkuppam (photo no.50) from the farms. these canals and drains once used as a freshwater resource for bathing and rechargers for the wells for the fisher folk in several villages now become saline because of the cessation of flow (example : pudukuppam village of sirkali faluk district; pudupettal village tharangampadi faluk. ............seed collection of peneaus monodon (tiger prawn) by children is a regular practice in these canals now. during their collection of seeds the children picked only the tiger prawn seeds and threw away all other shrimp and fish seeds, thus depleting the estuarine and coastal fishery resources. one child get paise 0.10 for the tiger prawn seed and one earns about rupees one hundred (rs.100 per day and 40-50 children are engaged in seed collection). this involves child labour and depletion of fishery resources and the loss of biodiversity in coastal and beltaic regions of cauvery. nursery grounds for shell and fin fishes are lost in this ancient river delta. (g) threatened wetlands of national and international importance
the marshy swamps of vedaranyam are now as threatened habitats with the formation of shrimp culture all along the brackish water zones and in the marshy swamps ............another wet land of national importance,
which is being threatened is pulicat lake. report a (1992) by the ministry of environment and forests, government of india clearly stressed the need of conserving these wetlands of national importance. ..........in the government of india report pulicat lake has been identified as an important lagoon (p.8 of the report). this fragile ecosystem has been under great threat by the industrial shrimp farming. in the main brackish water area, construction of bunds is going on (photo no.55 to 66). from the photographs it is evident that the marshy lands with its typical marshy vegetation is the only area left and almost all the marshy areas are being lost because of the upcoming shrimp culture ponds. these areas of marshy vegetation act as spawning/nursery grounds for a variety of estuarine/marine invertebrates, and fishes. these areas also provide wildlife habitats to several migrant birds. (h) impact on agriculture
dr. alagarswami, director ciba identifies "indiscriminate conversion of agricultural lands into shrimp culture" as a critical issue. most shrimp farmers in coastal areas have converted agricultural lands is the fact ponds. more relevant is the fact that shrimp industry causes salinisation of crop lands, seawater (salinity around 35 ppt i.e.35%) is pumped into the shrimp ponds. the growing period is from 120-150 days. this long detention of saline water in the shrimp ponds seeps into the adjacent crop lands and salinizes them resulting in reduction or productivity of even barrenness. then this "unproductive" land (so declared by the shrimp industries) is converted into shrimp ponds
we are concerned that conversion of paddy fields to shrimp ponds is already adversely affecting local rice production. in all the places we visited in num district pattinamarudur of luticorin, pulicat of chengai mgr districts etc; most of the shrimp ponds are constructed on fertile agricultural land or on marginal lands where on crop is raised. owing to the recent shortage of cauvery water (dispute between t.n. and karnataka) the yield of crops has been affected. taking advantage of this, shrimp industries have been buying up agricultural land through inducement,, persuasion and high pressure on revenue authorities. salinization of soil and water adjoining the shrimp farms is very well documented for perunthottam village. as per the cultivation record for land purchased by <??> bask farms we see clearly that the ands purchased were fertile agricultural lands with an average of two crops having a 60% harvest yield. (i) denial of potable water
"nagai, q.m. districts of tamilnadu, the erstwhile granary of south" is today threatened with pollution, ecological imbalance and land alienation because of the arrival of large number of private companies and translational corporations that have been investing heavily in shrimp farms etc" (mukul sharma: interpress service november 11 1994). drinking water in the vicinity of shrimp farms has become saline, wherever such farms were operated. shrimp culture may increase salinity through facilitating the flow of saline water inland and discharge of saline effluent (phillips, kwel lin and beveridge 1993.) water samples from 7 villages in sirkazhi near the shrimp farms were analysed
by bhagwathi environment development institute at dindigul. it was found that the water from bore wells and hand pumps were unpotable (see annexure) the villages affected were mahendrapatti, neithavasal, pudukuppam, eranyimedu, keelaiyun, thirunagari, nirajimedu etc. this was also confirmed by the bharatiya mazdoor sangh in kurru village. nellore dt where all the freshwater wells became saline and unpotable after 4 shrimp farms were established. the proof of this was the fast that the district collector, nellore ordered the supply of drinking water through tankers, to these villagers. dr. p. sanjeev raj (copdanet news letter winter 1994) also found that salt water from shrimp pond seeped into drinking water sources. dr. vandana shiva, after visiting some villages recorded that "shortage of drinking water and deterioration of its quality have resulted in the neighbourhood of shrimp farms".
protection of ground water sources may be viewed as nontradeable capital, as once contaminated, they may prove impossible to rehabilitate (mark eyvarard 1994).
as per the study done by bedi, water sample from a drinking water well in naikarkuppam had a ids of 2164 mg/1 and a chloride content of 99 mg/1 in addition to excessive quantities of mg and ca. samples collected from a drinking water hand pump near shriram shrimp farm now amalgam farms had an exceedingly high tds of 357/8 mg/1, hardness of 7506 mg/i which is as bad as seawater. unacceptably high ca, mg and sulphate were recorded. another hand pump near the same farm had a tds of 1466 mg/ and a chloride content of 656 ppm which are unpotable.
drinking water from a handpump near the shrimp farm of coastal enterprises ltd had a tds of 7694, chloride of 3879, hardness or 24/0 mq/i and so was unpotable." the three reports discussed above give a ratherdepressing scenario of the shrim industry. while theproduction increases and export earnings of the industry arewell publicised, the socio-economic losses and environmentaldegradation affecting the well-being of coastal populationare hardly noticed. the traditional production systems arebeing replaced by more intensive ones. this havebeenecouraged by increasing demand from high income countries.shrimp yield per hectare in many areas increased within afew years from an average 100 kg/ha per harvest to anaverage of 1000 kg/ha/crop for semi-intensive shrimp farmsand to between 2000 and 10000 kg/ha/crop for intensive typeof production. the social and environmental costs of theexpanding shrimp industry are closely inter-related.pollution and other types of natural resource degradationinduced by shrimp farming have been considerably,highlighted in the neeri reports and other material quotedand discussed by us. social and environmental changesresulting from expanding shrimp industry in coastal areasare largely due to the conversion into shrimp farms of thelands, waters and forests which were earlier dedicated toother uses. in fact, shrimp farms are developing at theexpense of other agriculture, acquaculture, forest uses andfisheries that are better suited in many places for meetinglocal food and employment requirements. intensive and semi-intensive types of shrimp production hardly seem to meetthese requirements. mangrove forests constitute an important component ofcoastal eco-systems. they thrive in tidle estuaries, saltmarshes and muddy coast lines. conversion of mangrove toshrimp farms significantly reduces the natural production ofwild capture shrimp as well as other fisheries. more over,their production role for low-lying coastal regions israpidly dimnishing by their replacement by shrimp ponds. thesunder bans, which constitute one of the biggest mangroveareas in the world, covered in the early 1990s about 12000sq. kms. in india and bangladesh. in the west bengal part ofsunder bans large mangrove areas have been replaced by theshrimp ponds. the increasing need for land by shrimp enterpreneurshas meant a dramatic rise in land prices in many areas.after the installation of shrimp farms near village lands,prices rise estronomically. local farmers can no longerafford to purchase land, while indebted farmers are temptedto sell their holdings. much of the coastal land recentlyconverted into shrimp farms was previously used for food
crops and traditional fishing. the united nations research institute for socialdevelopment in colloboration with the world wide fund fornature international has conducted a study and published areport dated june 19, 1995 called "some ecological andsocial implications of commercial shrimp farming in asia".the report is prepared by solon barraclong and andrea finger- stich (the un report). the un report gives the following picture regardingpolluted waters and depleted fisheries:- "polluted waters and depleted fisheries: shrimp farms use both sea and fresh water to replenish their ponds. this brings them into competition with other users of these water resources. in areas where commercial shrimp ponds have been constructed there is frequently insufficient fresh water left to met customary needs for irrigation, drinking, washing, or other household and livestock related uses, and water supplies may be contaminated, or both. groundwater salinization has been reported in several places. this often means that people - most of the time women - have to bring water from more distant wells. in a village in tamil nadu (nagar-quaid- e-millet district, pompuhar region), for example, women have to walk two to three kilometres to fetch drinking water that previously was available nearby before the expansion of shrimp farms on about 10,000 hectares (bhagat, 1994). in andhra pradesh, a case study conducted by vandana shiva reports that, in the nellore district, there was no drinking water available for the 600 fisherfolk of the village of kurru due to aquaculture farms salinizing groundwater. she adds that "after protest from the local women, drinking water was supplied in tankers" (mukul, 1994).........local stocks of native fish and crustaceans are being depleted in many places
because of the removal of mangroves which served as nurserybeds, and also as a result of indiscriminate overfishing of wild shrimp fry (over 90 per cent of randomly caught fry are often wasted [gujja, 1994]). natural fisheries are also frequently damaged by pollution caused by overloads of nutrients, sediments and chemicals from shrimp farms. in another indian coastal village, ramachandrapuram, fishermen reported that the value of their average catch of shrimp used to be rs.50,000 per catamaran per month, but after one year of operation of nearby aquafarms their catch was ten times smaller (mukul, 1994). in the chokoria part of the sundarbans' of bangladesh, fishermen report an 80 per cent drop in fish capture since the destruction of the mangroves and building of dikes for shrimp farming (sultna, 1994). frequently, fisherfolk protest because their traditional access to the coast has been restricted or because stocks of wild crustaceans and fish have disappeared. all the reports referred to by us clearly indicate thatthe expansion of modern shrimp ponds in the coastal areashas meant that local fishermen could only reach the beach bytrespassing at great risk on shrimp farms or by taking along detour. local people have not only lost access to theirfishing grounds and to their sources of riverine seafoodsand seaweeds, but they also have to relinquish social andrecreational activities traditionally taking place on theirbeaches. the un report gives the following picture regardingnatural resource degradation as a result of shrimp farming:- "in areas densely covered with intensive shrimp farms, however, the industry is responsible for considerable self-pollution and particularly for bacteriological and viral contamination. each hectare of pond produces tons of undigested feed and fasecal wastes for every crop cycle. this induces the growth of phytoplankton, protoza, fungus, bacteria and
viruses (like the vibrio group growing in shrimp faeces and in large part responsible for the 1988 collapse of tasiwan's production) (lin, 1989). the overuse of fertilizers and of veterinary and sanitary products such as antibiotics adds to the water pollution problem. it also contributes to the decreasing resistance of the shrimp stock. where intensive shrimp farms are densely spaced, waste laden water tends to slosh from one pond to another before it is finally discharged into the sea. shrimp producers are extremely concerned about assured supplies of clean water as it is vital for their immediate economic returns.
large amounts of sedimentation in intensive shrimp ponds is posing serious disposal problems for shrimp farmers. from 100 to 500 tons of sediment per hectare per year are apparently accumulating. since only some 10 tons of feed is used to produce about 5 tons of shrimp per hectare per year, this raises questions about where such incredible quantities of sediment come from (rosenberry, 1994a;42). ponds are cleaned after each crop cycle and the sediments are often discarded in water ways leading into the sea, or they are sometimes used to build dikes. their putrefaction inside and outside the ponds causes foul odours, hypernutrification and eutrophisation, siltation and turbidity of water courses and estuaries, with detrimental implications on local fauna and flora. .............biodiversity losses: the impacts of semi- intensive and intensive shrimp aquaculture on biodiversity ("the totality of genes, species and ecosystems in a region") are multiple. this is because of the
land area they cover; the water they pollute; the water circulation systems they alter; the wild fish and crustacean habitats they replace; the risks they pose of disease transfer; the impacts of released raised shrimp on the genetic diversity and resilence of indigenous shrimp and possibly also their negative impacts on other native fauna and flora. ..........health hazards: health hazards to local populations living near or working in shrimp farms have been observed in several places. for instance, in tamil nadu (quaid-e-milleth district near pondicherry) an approximately 1,500 acre large shrimp farm has been reported to have caused eight deaths from previously unknown diseases within a period of two months following the installation of the aquaculture farm (naganathan et al., 1995:60/). there are numerous hazards to public health along the shrimp production chain from the farmers through the various processors to the often distant consumers. the workers employed on shrimp farms handle several potentially dangerous chemicals, and may be exposed to unsanitary working conditions." according to the un report - intensive ponds have amaximum life of only 5 to 10 years. abandoned ponds can nolonger be used for shrimp and there are few knownalternative uses for them except some other types ofacquaculture. apparently they can seldom be economicallyrehabilitated for other uses such as crop land. the extentof abandoned areas by the shrimp industry has been indicatedby the un report in the following works:- "after a production cycle of about four of five months, shrimp ponds under intensive use are cleaned and disinfected and the polluted sludge is removed and often disposed for unsafely. this treatment, however, does not usually surfice to maintain the ponds' productivity for more than five to ten yn years
(ibid., annex iii/12). entrepreneurs then move to other areas because of pollution and disease. this mode of production has been called "rape and run" (csavas, 1994b). the altered milieu of these abandoned ponds inhibits the spontaneous regeneration of vegetation and their use for agriculture, forestry, other aquaculture or related fishing activities. these abandoned areas do not appear in worldwide estimastes of areas used for shrimp farming, which for 1993 were estimated to include 962,600 hectares, of which 847,000 hectares were in asia. in december 1994 these areas were estimated to have increased worldwide to 1,147,500 with 1,017,000 hectares in asia (rosenberry, 1993 and 1994a). globally, areas affected by the industry's practices over the last decade are probably at least one third larger, or even more if the total infrastructures surrounding the ponds are accounted for." the un report pithily sums up the "conflicts andexternalities" as under:- "a major portion of the conflicts arising from the expansion of shrimp farming are the result of environmental and social degradation that is not included in the costs of shrimp production. where the industry assumes no responsibility for damages to other groups arising from its activities, economists call them "externalities". for example, abandoned ponds are usually virtually unusable for other purposes for indefinite periods without costly rehabilitation, which is seldom undertaken. mangrove destruction, flooding of crops, salinization or pollution of land and water associated with the expansion of shrimp farming all affect the local people depending
on these resources" alagarswami has divided the shrimp-farm technology intosix types. we have already quoted the relevant paragraph5.1.2 of the report. although different experts have givendifferent nomenclature to different types of shrimp farmtechnologies, we are of the view that the types indicated byalagarswami in his report are based on the functioning ofthe shrimp culture industry in india and as such areacceptable. keeping in view the neeri report and othermaterial quoted and discussed by us, we are of the view thatthe traditional and improved traditional types of shrimp-farm technologies - defined by alagarswami - areenvironmentally benign and pollution free. other types oftechnologies - extensive, modified extensive, semi intensiveand intensive - create pollution and have degrading affecton the environment and coastal ecology. such type of shrimpfarms cannot be permitted to operate. we may refer to constitutional and statutory provisionswhich mandate the state to protect and improve theenvironment. article 48-a of the constitution of indiastates that "the state shall endeavour to protect andimprove the environment and to safeguard the forests andwild life of the country". article 51-a of the constitutionimposes as one of the fundamental duties on every citizen,the duty to protect and improve thenatural environmentincluding forests, lakes, rivers and wild life and to havecompassion for living creatures. the environment(protection) act, 1986 (the act) was enacted as a result ofthe decisions taken at the united nations conference on thehuman environment held at stockhorm in june, 1972 in whichindia participated. the indian delegation was led by thethen prime minister of india. the statement of objects andreason to the act is as under:- "the decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. the world community's resolve to protect and enhance the environmental quality. found expression in the decisions taken at the united nations conference on the human environment held in stockholm in june, 1972, government of india participate din the conference and strongly voiced
the environmental concerns. while several measures have been taken for environmental protection both before and after the conference, the need for a general legislation further to implement the decision of the conference has become increasingly evident." section 2(a), 2(b), 2(c) and 2(e) of the environmentact are as under:- 2. definitions.-in this act, unless the context otherwise requires,- (a) "environment" includes 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-organism and property; (b) "environmental pollutant" means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment; (c) "environmental pollution" means the presence in the environment of any environmental pollutant; (e) "hazardous substance" means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment;" section 7 and 8 of the environment act are as under:- "7. persons carrying on industry, operation, etc., not to allow emission or discharge of environmental pollutants in excess of the standards.- 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. 8. persons handling hazardous substances to comply with procedural safeguards.- no person
shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed. section 15 of the act makes contravention of theprovisions of the said act punishable with imprisonment fora term which may extend to five years or with fine which mayextend to one lakh rupees or with both. if the failure orcontravention continues beyond a period of one year afterthe date of conviction, the offender shall be punishablewith imprisonment for a term which may extend to sevenyears. the effluents discharged by the commercial shrimpculture farms are covered by the definition of environmentalpollutant, environmental pollution and hazardous substance.the neeri reports indicate that the effluents discharged bythe farms at various places were excess of the prescribedstandards. unfortunately, no action is beingtaken by theauthorities under the act. hazardous waste (management and handling) rules, 1989(the rules) have been framed under the act. rule 2(i) of therules defines "hazardous wastes" to mean categories ofwastes specified in the schedule appended to the rules.waste category no.12 under the schedule to the rules is asunder:-
"schedule categories of hazardous waste
------------------------------------------------------------waste categories types of wastes regulatoryquantities------------------------------------------------------------ 1 2 3 = = =waste category no.12 sludges arising irrespective of
from treatment of any quality. waste waters containing heavy metals, toxic organics, oils, emulsions and spend chemicals and incrineration ash."
rule 5 of the rules makes it obligatory for everyoccupier generating hazardous wastes to obtain authorisationas provided under the said rule. rule 5(4) requires thestate pollution control board not to issue and authorisationunless it is satisfied that the operator of a facility or anoccupier, as the case may be, possesses appropriatefacilities, technical capabilities and equipment to handlehazardous waste safely. mr. mehta has vehemently contended that the shrimp
culture farms are discharging highly polluting effluentwhich is "hazardous waste", under the rules, mr. mehtarelying upon the neeri reports and other reports placed onrecord has contended that none of the farms have obtainedauthorisation from the state pollution control boards. the water (prevention & control of pollution) act. 1974(the water act) has been enacted to provide for theprevention and control of water pollution and themaintaining or restoring of wholesomeness of water. thestatement of objects and reasons of the water act, interalia, state as under:- "the problem of pollution of rivers and streams has assumed considerable importance and urgency in recent years as a result of the growth or industries and the increasing tendency to urbanization. it is, therefore, essential to ensure that the domestic and industrial effluents are not allowed to be discharged into the water courses without adequate treatment as such discharges would render the water unsuitable as source of drinking water as well as for supporting fish life and for use in irrigation. pollution of rivers and streams also causes increasing damage to the country's economy." section 2 (j) & (k) of the water act are as under:- "2. definitions.- in this act, unless the context otherwise requires,- (j) "stream" includes- (i) river; (ii) water course (whether flowing
or for the time being dry); (iii) inland water (whether natural
or artificial); (iv) sub-terranean waters; (v) sea or tidal waters to such
extent or, as the case may be, to such point as the state government may, by notification in the official gazette, specify in this behalf;
(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any
premises used for carrying on any [industry operation or process, or treatment and disposal system], other than domestic sewage. section 25 of the water act provides that no personshall, without the previous consent of the state boardestablish any industry, operation or process, of anytreatment and disposal system which is likely in dischargesewage or trade effluent into a stream on well or sewer oron land. there is nothing on the record to show that theshrimp culture farm owners are even conscious of thestatutory provisions which require them to obtain thenecessary consent/authorisation from the concerned pollutioncontrol boards. there are other legislations like fisheries act 1987,wild life protection act, 1972 and forest conservation act,1980 which contain useful provisions for environmentprotection and pollution control. unfortunately, theauthorities responsible for the implementation of variousstatutory provisions are wholly re-miss in the performanceof their duties under the said provisions. at this stage we may deal with a question which hasincidentally come up for our consideration. under para 2 ofthe crz notification, the activities listed thereunder aredeclared as prohibited activities. various state governmentshave enacted coastal acquaculture legislations regulatingthe industries set up in the coastal areas. it was arguedbefore us that certain provisions of the state legislationsincluding that of the state of tamil nadu are not inconsonance with the crz notification issued by thegovernment of india under section 3(3) of the act, assumingthat <??> so, we are of the view that the act being acentral legislation has the overriding effect. the act theenvironment protection act, 1986) has been enacted underentry 13 of list 1 schedule vii of the constitution ofindia. the said entry is as under:- "participation in international conferences, assessment and other bodies and implementing of decisions made there at." the preamble to the act clearly states that it wasenacted to implement the decisions taken at the unitednations conference on the human environment held atstockholm in june, 1972. the parliament has enacted the actunder entry 13 of list 1 schedule vii read with article 253of the constitution of india the crz notification havingbeen issued under the act shall have overriding effect andshall prevail over the law made by the legislatures of thestates. this court in vellore citizens welfare forum vs. unionof india & ors. jt 1966 (7) sc 375 has dealt with the
concept of "sustainable development" and has specificallyaccepted "the precautionary principle" and "the polluterpays" principle as part of the environmental laws of theland. the relevant part of the judgment is as under; "the traditional concept that development and ecology are opposed to each other, is no longer acceptable. sustainable development is the answer. in the international sphere "sustainable development" as a concept came to be known for the first time in the stockholm declaration of 1972. thereafter, in 1987 the concept was given a definite shape by the world commission on environment and development in its report called "our common future". the commission was chaired by the then prime minister of norway ms. g.h. brundtland and as such the report is popularly known as "brundtland report". in 1991 the world conservation union, united nations environment programme and world wide fund for nature, jointly came out with a document called "caring for the earth" which is a strategy for sustainable living. finally, came the earth summit held in june, 1992 at rio which saw the largest gathering of world leaders ever in the history - deliberating and chalking out a blue print for the survival of the planet. among the tangible achievements of the rio conference was the signing of two conventions, one on biological diversity and another on climate change. these conventions were signed by 159 nations. the delegates also approved by consensus three non binding documents namely, a statement on forestry principles, a declaration of principles on environmental policy and development initiatives and agenda 21, a programme of action into the next century it areas like poverty population and pollution. during the two decades
from stockholm to rio "sustainable development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. "sustainable development" as defined by the brundtland report means "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". we have no hesitation in holding that "sustainable development" as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists. some of the salient principles or "sustainable development", as culled out from brundtland report and other international documents, are inter-generational equity, use and conservation of natural resources, environmental protection, the precautionary principle, polluter pays principle, obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries. we are, however, of the view that "the precautionary principle" and "the polluter pays" principle are essential features of "sustainable development". the "precautionary principle" - in the context of the municipal law - means: (i) environment measures - by the state government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation, (ii) where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation, (iii) the "onus of proof" is on the actor of the developer/industrialist to show that his action is environmentally benign.
"the polluter pays" principle has been held to be a sound principle by this court in indian council for enviro-legal action vs. union of india jt 1996 (2) 190. the court observed, "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". the court ruled that "once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to nay other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. the rule is premised upon the very nature of the activity carried on". consequently the polluting industries 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 rand hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". the "polluter pays" principle as interpreted by this court means that the obsolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. remediation of the damaged environment is part of the process of "sustainable development" and as such polluter is liable to pay the cost to the individual sefferers as well as the
cost of reversing the damaged ecology.
the precautionary principle and the polluter pays principle have been accepted as part of the law of the land. article 21 of the constitution of india guarantees protection of life and personal liberty. articles 47, 48a and 51a(g) of the constitution are as under:
"47. duty of the state to raise the level of nutrition and the standard of living and to improve public health. - the state shall regard the raising of the revel of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the state that endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48a. protection and improvement of environment and safeguarding of forests and wild life. - the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51a(g). to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures."
apart from the constructional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are : the water (prevention and control of pollution) act, 1974 (the water act), the air (prevention and control of pollution) act, 1981 (the air act) and the environment protection act, 1986 (the
environment act). the water act provides for the constitution f the central pollution control board by the central government and the constitution of the state pollution control boards by various state governments in the country. the boards function under the control of the governments concerned. the water act prohibits the use of streams and wells for disposal of polluting matters. also provides for restrictions on outlets and discharge of effluents without obtaining consent from the board, prosecution and penalties have been provided which include sentence of imprisonment. the air act provides that the central pollution control board and the state pollution control boards constituted under the water act shall also perform the powers and functions under the air act. the main function of the boards, under the air act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. we shall deal with the environment act in the later part of this judgment.
in view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environment law of the country. we are of the view that before any shrimp industry orshrimp pond is permitted to be installed in the ecologyfragile coastal area it must pass through a strictenvironmental test. there has to be a high powered"authority" under the act to scrutinise each and every casefrom the environmental point of view. there must be anenvironmental impact assessment before permission is grantedto instal commercial shrimp farms. the conceptual frameworkof the assessment must be broad-based primarily concerningenvironmental <??> linked with shrimp farming. theassessment must also include the social impact on differentpopulation strata in the area. the quality of the assessmentmust be analytically based on superior technology. it musttake into consideration the inter-generational equity and
the compensation for those who are affected and prejudiced. before parting with this judgment, we may notice the"dollar" based argument advanced before us. it was contendedbefore us by the learned counsel appearing for the shrimpacquaculture industry that the industry has achievedsingular distinction by earning maximum foreign exchange inthe country. almost 100 per cent of the produce is exportedto america, europe and japan and as such the industry has alarge potential to earn "dollars". that may be so, but thefarm-raised production of shrimp is much lesser than thewild-caught production. the un report shows the worldproduction of shrimp from 1982 to 1983 as under:-
table 1: world production of shrimp------------------------------------------------------------
thousands of matric tons------------------------------------------------------------year farm-raised wild-caught total------------------------------------------------------------1982 84 1,652 1,7561983 143 1,683 1,6261984 174 1,733 1,9071985 213 1,906 2,1211986 309 1,909 1,2181987 551 1,909 2,2641988 604 1,914 2,5181989 611 1,832 2,5181990 633 1,968 2,4431991 690 1,968 2,6011992 721 2,118 2,9121993 610 2,100 2,710"------------------------------------------------------------ it is obvious from the figures quoted above that term-raised production of shrimp is of very small quantity ascompared to wild-caught even if some of the shrimp culturefarms which are polluting the environment, are closed, theproduction of shrimp by environmentally friendly techniqueswould not be affectedand there may not be any loss to theeconomy specially in view of the finding given by neeri thatthe damage caused to ecology and economics by theacquaculture farming is higher than the earnings from thesale of coastal acquaculture produce. that may be the reasonfor the european and american countries for not permittingtheir sea-coasts to be exploited for shrimp-culture farming.the un report shows that 80% of the farm - cultured - shrimpcomes from the developing countries of asia. we, therefore, order and directed as under:1. the central government shall constitute an authorityunder section 3(3) of the environment (protection) act, 1986and shall confer on the said authority all the powersnecessary to protect the ecologically fragile coastal areas,sea shore, water front and other coastal areas and specially
to deal with the situation created by the shrimp cultureindustry in the coastal states/union territories. theauthority shall be headed by <??> judge of a high court.other members preferably with expertise in the field ofacquaculture, pollution control and environment protectionshall be appointed bythe central government. the centralgovernment shall confer on the said authority the powers toissue directions under section 5 of the act and for takingmeasures with respect to the matters referred to in clauses(v), (vi), (vii), (viii), (ix), (x) and (xii) of sub-section(2) of section 3. the central government shall constitutethe authority before january 15, 1997.2. the authority so constituted by the central governmentshall implement "the precautionary principle" and "thepolluter pays" principles.3. the shrimp culture industry/the shrimp ponds arecovered by the prohibition contained in para 2(1) of the crznotification. no shrimp culture pond can be constructed orset up within the coastal regulation zone as defined in thecrz notification. this shall be applicable to all seas,bays, estuaries, creeks, rivers and backwaters. thisdirection shall not apply to traditional and improvedtraditional types of technologies far defined in alagarswamireport which are practised in the coastal low lying areas.4. all acquaculture industries/shrimp cultureindustries/shrimp culture ponds operating/set up in thecoastal regulation zone as defined under the crznotification shall be demolished and removed from the saidarea before march 31, 1997. we direct the superintendent ofpolice/deputy commissioner of police and the districtmagistrate/collector of the area to enforce this directionand close/demolish all acquaculture industries/shrimpculture industries, shrimp culture ponds on or before march31, <??> a compliance report in this respect shall be <??>in this court by these authorities before april 15, 1997.5. the farmers who are operating traditional and improvedtraditional systems of acquaculturemay adopt improvedtechnology for increased production productivity and returnwith prior approval of the "authority" constituted by thisorder.6. the agricultural lands, salt pan lands, mangroves, wetlands, forest lands, land for village common purpose and theland meant for public purposes shall not be used/convertedfor construction of shrimp culture ponds.7. no acquaculture industry/shrimp culture industry/shrimpculture ponds shall be constructed/set up within 1000 meterof chilka lake and pulicat lake (including bird sanctuariesnamely yadurapattu and nelapattu)8. acquaculture industry/shrimp culture industry/shrimpculture ponds already operating and functioning in the saidarea of 1000 meter shall be closed and demolished before
march 31, 1997. we direct the superintendent ofpolice/deputy commissioner of police and the districtmagistrate/collector of the area to enforce this directionand close/demolish and acquaculture industries/shrimpculture industries, shrimp culture ponds on or before march31, 1997. a compliance report in this respect shall befilled in this court by these authorities before april 15,1997.9. acquaculture industry/shrimp culture industry/shrimpculture ponds other than traditional and improvedtraditional may be set up/constructed outside the coastalregulation zone as defined by the crz notification andoutside 1000 meter of chilka and pulicat lakes with theprior approval of the "authority" as constituted by thiscourt. such industries which are already operating in thesaid areas shall <??>authorisation from the "authority"before april 30, 1997 failing which the industry concernedshall stop functioning with effect from eh said date. wefurther direct that any acquaculture activity includingintensive and semi-intensive which has the effect of causingsalinity of soil, of the drinking water or wells and/or bythe use of chemical feeds increases shrimp or prawnproduction with consequent increase in sedimentation which,on putrefaction is a potential health hazard, apart fromcausing silication turbidity of water courses and estuarieswith detrimental implication on local fauna and flora shallnot be allowed by the aforesaid authority.10. acquaculture industry/shrimp culture industry/shrimpculture ponds which have been functioning/operating withinthe coastal regulation zone as defined by the crznotification and within 1000 meter from chilka and puliketlakes shall be liable to compensate the affected persons onthe basis of the "polluter pays" principle.11. the authority shall, with the help of expert opinionand after giving opportunity to the concerned pollutersassess the loss to the ecology/<??> the affected areas andshall a individuals/families who have suffered because ofthe pollution and shall assess the compensation to be painto the said individuals/families. the authority shallfurther determine the compensation to be recovered from thepolluters as cost of reversing the damaged environment. theauthority shall lay down just and fair procedure forcompleting the exercise.12. the authority shall compute the compensation under twoheads hardly, for reversing the ecology and for payment toindividuals. a statement showing amount to be recovered, thenames of the <??> whom the amount is to be recovered, the<??> recovered from each polluter, the persons to whom thecompensation is to be paid and the amount payable to each ofthem shall be forwarded to the collector/district magistrateof the area concerned. the collector/district magistrate
shall recover the amount from the polluters, if necessary,as arrears of land revenue. he shall disburse thecompensation awarded by the authority to the affectedpersons/families.13. we further direct that any violation or non-complianceof the directions of this court shall attract the provisionsof the contempt of courts act in addition.14. the compensation amount recovered from the pollutersshall be deposited under a separate head called "environmentprotection fund" and shall be utilised for compensating theaffected persons as identified by the authority and also forrestoring the damaged environment.15. the authority, in consultation with expert bodies likeneeri, central pollution control board, respective statepollution control boards shall frame scheme/schemes forreversing the damage cause to the ecology and environment bypollutions of the coastal states/union territories. thescheme/schemes so framed shall be executed by the respectivestate governments/union territory governments under thesupervision of the central government. the expenditure shallbe met from the environment protection <??> from othersources provided by the respective state governments/unionterritory governments and the central government.16. the workmen employed in the shrimp culture industrieswhich are to be closed in terms of this order, shall bedeemed to have been retrenched with effect from april 30,1997 provided they have been in continuous service (asdefined in section 258 of the industrial disputes act, 1947)for not less than one year in the industry concerned beforethe said date. they shall be paid compensation in terms ofsection <??> of the industrial disputes act, 1947. theseworkmen shall also be paid, in addition, six year's wages asadditional compensation. the compensation shall be paid tothe workmen before may 31, 1997. the gratuity amount payableto the women shall be paid in addition. the writ petition is allowed with costs. we quantifythe costs as rs. 1,40,000/-(rupees one lac forty thousand)to be paid by the states of gujarat. maharashtra, orissa,kerala, tamil nadu, andhra pradesh and west bengal in equalshares of rs. 20,000/- each. the amount of rs. 1,40,000/-realised from the seven coastal states shall be paid to mr.mc mehta, advocate who has assisted <??> in this casethroughout. we place on record our appreciation for theassistance rendered by mr. mehta.
petitioner:union carbide corporation
vs.
respondent:union of india etc.
date of judgment04/05/1989
bench:pathak, r.s. (cj)bench:pathak, r.s. (cj)venkataramiah, e.s. (j)misra rangnathvenkatachalliah, m.n. (j)ojha, n.d. (j)
citation: 1990 air 273 1989 scc (2) 540 1989 scale (1)932
act: bhopal gas leak disaster (registration and processing ofclaims) act, 1985: court giving reasons for the overallsettlement order dated february 14, 1989--compelling duty
both judicial and humane to secure immediate relief to thevictims.
headnote: the bhopal gas leak tragedy that occurred at midnight of2nd december, 1984, by the escape of deadly chemical fumesfrom the appellant's factory was a great industrial disasterand it took an immediate toil of 2600 human lives and lefttens of thousands of innocent citizens of bhopal physicallyaffected in various ways. as per the figures furnished bythe union of india in its amended plaint a total number of2,660 persons suffered agonising and excruciating deathsbetween 30,000 to 40,000 persons sustained serious injuriesas a result of the said disaster. legal proceedings for the recovery of compensation forthe victims were initiated against the multi-national compa-ny first in the u.s. courts and later in distt. court atbhopal in suit no. 113 of 1986. the present appeals concernwith the order dated 4th april, 1988 passed by the madhyapradesh high court whereby it modified the interlocutoryorder dated 17.12.1987 made by the distt. judge and grantedinterim compensation of rs.250 crores. both the union ofindia and the union carbide corporation have appealed tothis court against that order. the court by its order dated the 14th february, 1989made in these appeals directed that there shall be an over-all settlement of the claims in the suit for 470 millionu.s. dollars and termination of all civil and criminalproceedings. on may 4, 1989 the court pronounced its reasonsfor its aforesaid order dated 14.2.89thus: the statement of the reasons is not made with any senseof finality as to the infallibility of the decision; butwith an open mind to be able to appreciate any tenable andcompelling legal or factual infirmities that may be broughtout, calling for remedy in review under article 137 ofthe constitution. [132c-d]129 the basic consideration motivating the conclusion of thesettlement was the compelling need for urgent relief. con-siderations of excellence and niceties of legal principleswere greatly over-shadowed by the pressing problems of verysurvival for a large number of victims. [133a, c] the instant case is one where damages are sought onbehalf of the victims of a mass disaster, and having regardto the complexities and the legal question involved, anyperson with an unbiased vision would not miss the timeconsuming prospect for the course of the litigation in itssojourn through the various courts, both in india and laterin united states. this court considered it a compelling
duty. both judicial and humane, to secure immediate reliefto the victims. in doing so, the court did not enter uponany forbidden ground. what this court did was in continua-tion of what had already been initiated. [133e-f, h; 134a] the range of choice for the court in regard to thefigures was, therefore, between the maximum of 426 millionu.s. dollars offered by shri nariman and the minimum of 500million u.s. dollars suggested by the attorney general.[134f-g] having regard to all the circumstances including theprospect of delays inherent in the judicial process in indiaand thereafter in the matter of domestication of the decreein the united states for the purpose of execution, the courtdirected that 470 million u.s. dollars which upon immediatepayment and with interest over a reasonable period, pendingactual distribution amongst the claimants, would aggregatevery nearly to 500 million u.s. dollars or its rupee equiva-lent of approximately rs.750 crores which the attorneygeneral had suggested. be made the basis of the settlement.[134g-h; 135a-b] the settlement proposals were considered on the premisesthat the government had the exclusive statutory authority torepresent andact on behalf of the victims and neithercounsel had any reservation as to this. the order was alsomade on the premises that the bhopal gas leak disaster(registration and processing of claims) act 1985 was a validlaw. [135b-c] there might be different opinions on the interpretationof laws or on questions of policy or even on what may beconsidered wise or unwise; but when one speaks of justiceand truth, these words mean the same thing to all men whosejudgment is uncommitted. [140b-c]the compulsions of the need for immediate relief to tens of130thousands of suffering victims could not wait till thesequestions, vital though they be, are resolved in due courseof judicial proceedings. [142d-e] a settlement has been recorded upon material and incircumstances which persuaded the court that it was a justsettlement. this is not to say that this court will shut outany important material and any compelling circumstanceswhich might impose a duty on it to exercise the powers ofreview. like all other human institutions, this court ishuman and fallible. what appears to the court to be just andreasonable in that particular context and setting, need notnecessarily appear to others in the same day. which view isright, in the ultimate analysis, is to be judged by what itdoes to relieve the undeserved suffering of thousands ofinnocent citizens of this country. [142f-g] decisions of courts cannot be reacted or altered ordetermined by agitational pressures. if a decision is wrong,
the process of correction must be in a manner recognised bylaw. all of those who invoke the corrective processes inaccordance with law shall be heard and the court will dowhat the law and the course of justice requires. the matterconcerns the interests of a large number of victims of amass disaster. the court directed the settlement with theearnest hope that it would do hem good and bring them imme-diate relief, for, tomorrow might be too ate for many ofthem. but the case equally concerns the credibility of, andthe public confidence in, the judicial process. [143b, d-e]those who trust this court will not have cause for despair.[143f] m.c. mehta v. union of india, air 1987 sc 1(186; theo-ries of compensation, r.e. goodin: oxford journal of legalstudies, 1989 p.57 and wallace mendelson.. supreme courtstatecraft--the rule of law and men, referred to.
judgment: civil appellate jurisdiction: civil appeal nos. 3187 and3188 of 1988. from the judgment and order dated 4.4.1988 of the madhyapradesh high court in cr no. 26 of 1988. anil b. dewan, j.b. dadachanji, mrs. a.k. verma for theappellant. k. parasaran, a. mariarputham, miss a. subhashini andc.l. sahu for the respondents.131the following order of the court was delivered:order the bhopal gas leak tragedy that occurred at midnight on2nd december, 1984, by the escape of deadly chemical fumesfrom the appellant's pesticide-factory was a horrendousindustrial mass disaster, unparalleled in its magnitude anddevastation and remains a ghastly monument to the de-huma-nising influence of inherently dangerous technologies. thetragedy took an immediate toll of 2,660 innocent human livesand left tens of thousands of innocent citizens of bhopalphysically impaired or affected in various degrees. whatadded grim poignance to the tragedy was that theindustrial-enterprise was using methyl iso-cyanate, a lethaltoxic poison, whose potentiality for destruction of life andbiotic-communities was, apparently, matched only by the lackof a pre-package of relief procedures for management of anyaccident based on adequate scientific knowledge as to theameliorative medical procedures for immediate neutralisationof its effects. it is unnecessary for the present purpose to refer, inany detail, to the somewhat meandering course of the legalproceedings for the recovery of compensation initiated
against the multi-national company initially in the courtsin the united states of america and later in the districtcourt at bhopal in suit no. 113 of 1986. it would suffice torefer to the order dated 4 april, 1988 of the high court ofmadhya pradesh which, in modification of the interlocutory-order dated 17 december, 1987 made by the learned districtjudge, granted an interim compensation of rs.250 crores.both the union of india and the union carbide corporationappealed against that order. this court by its order dated 14 february, 1989 made inthose appeals directed that there be an overall settlementof the claims in the suit, for 470 million us dollars andtermination of all civil and criminal proceedings. theopening words of the order said:
"having given our careful considera- tion for these several days to the facts and circumstances of the case placed before us by the parties in these proceedings, including the pleadings of the parties, the mass of data placed before us, the material relating to the proceedings in the courts in the united states of america, the offers and counter-offers made between the parties at different stages 132 during the various proceedings, as well as the complex issues of law and fact raised before us and the submission made thereon, and in particular the enormity of human suffering occasioned by the bhopal gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster, we are of opinion that the case is pre-emi- nently fit for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster ..... " (emphasis supplied)
it appears to us that the reasons that persuaded this court to make the order for settlement should be set-out, so that those who have sought a review might be able effec- tively to assist the court in satisfactorily dealing with the prayer for a review. the statement of the reasons is not made with any sense of finality as to the infallibility of the decision; but with an open mind to be able to appreciate any tenable and compelling legal or factual infirmities that may be brought out, calling for remedy in review under arti- cle 137 of the constitution.
the points on which we propose to set-out
brief reasons are the following: (a) how did this court arrive at the sum of 470 million us dollars for an over-all settle- ment? (b) why did the court consider this sum of 470 million us dollars as 'just, equitable and reasonable'? (c) why did the court not pronounce on certain important legal questions of far reaching importance said to arise in the appeals as to the principles of liability of monolithic, economically entrenched multi-national compa- nies operating with inherently dangerous technologies in the developing countries of the third world--questions said to be of great contemporary relevance to the democracies of the third-world?
there is yet another aspect of the review pertaining tothe part of the settlement which terminated the criminalproceedings. the questions raised on the point in the re-view-petitions, prima facie, merit consideration and weshould, therefore, abstain from saying anything which mighttend to pre-judge this issue one way or the other.133 the basic consideration motivating the conclusion of thesettlement was the compelling need for urgent relief. thesuffering of the victims has been intense and unrelieved.thousands of persons who pursued their own occupations foran humble and honest living have been rendered destitute bythis ghastly disaster. even after four years of litigation,basic questions of the fundamentals of the law as to liabil-ity of the union carbide corporation and the quantum ofdamages are yet being debated. these, of course, are impor-tant issues which need to be decided. but, when thousands ofinnocent citizens were in near destitute conditions, withoutadequate subsistential needs of food and medicine and withevery coming morrow haunted by the spectre of death andcontinued agony, it would be heartless abstention, if thepossibilities of immediate sources of relief were not ex-plored. considerations of excellence and niceties of legalprinciples were greatly over-shadowed by the pressing prob-lems of very survival for a large number of victims. the law's delays are, indeed, proverbial. it has beenthe unfortunate baneof the judicial process that evenordinary cases, where evidence consists of a few documentsand the oral testimony of a few witnesses, require someyears to realise the fruits of litigation. this is so evenin cases of great and unquestionable urgency such as fatalaccident actions brought by the dependents. these are hardrealities. the present case is one where damages are soughton behalf of the victims of a mass disaster and, having
regard to the complexities and the legal questions involved,any person with an unbiased vision would not miss the timeconsuming prospect for the course of the litigation in itssojourn through the various courts, both in india and laterin united states. it is indeed a matter for national introspection thatpublic response to this great tragedy which affected a largenumber of poor and helpless persons limited itself to theexpression of understandable anger against the industrialenterprise but did not channel itself in any effort to puttogether a public supported relief fund so that the victimswere not left in distress, till the final decision in thelitigation. it is well known that during the recent droughtin gujarat, the devoted efforts of public spirited personsmitigated, in great measure, the loss of cattle-wealth inthe near famine conditions that prevailed. this court, considered it a compelling duty, both judi-cial and humane, to secure immediate relief to the victims.in doing so, the court did not enter upon any forbiddenground. indeed, efforts had134earlier been made in this direction by judge keenan in theunited states and by the learned district judge at bhopal.what this court did was in continuation of what had alreadybeen initiated. even at the opening of the arguments in theappeals, the court had suggested to learned counsel on bothsides to reach a just and fair settlement. again, whencounsel met for re-scheduling of the hearings the suggestionwas reiterated. the response of learned counsel on bothsides was positive in attempting a settlement, buttheyexpressed a certain degree of uneasiness and scepticism atthe prospects of success in view of their past experience ofsuch negotiations when, as they stated, there had beenuninformed and even irresponsible criticism of the attemptsat settlement. the learned attorney general submitted thateven the most bona fide, sincere and devoted efforts atsettlement were likely to come in for motivated criticism. the court asked learned counsel to make available theparticulars of offers and counter offers made on previousoccasions for a mutual settlement. learned counsel for bothparties furnished particulars of the earlier offers made foran overall settlement and what had been considered as areasonable basis in that behalf. the progress made by previ-ous negotiations was graphically indicated and these docu-ments form part of the record. shri nariman stated that hisclient would stand by its earlier offer of three hundred andfifty million us dollars and also submitted that his clienthad also offered to add appropriate interest, at the ratesprevailing in the u.s.a., to the sum of 350 million usdollars which raised the figure to 426 million us dollars.shri nariman stated that his client was of the view that
amount was the highest it could go upto. in regard tothisoffer of 426 million us dollars the learned attorney-generalsubmitted that he could not accept this offer. he submittedthat any sum less than 500 million us dollars would not bereasonable. learned counsel for both parties stated thatthey would leave it to the court to decide what should bethe figure of compensation. the range of choice for thecourt in regard to the figure was, therefore, between themaximum of 426 million us dollars offered by shri narimanand the minimum of 500 million us dollars suggested by thelearned attorney general. in these circumstances, the court examined the primafacie material as to the basis of quantification of a sumwhich, having regard to all the circumstances including theprospect of delays inherent in the judicial-process in indiaand thereafter in the matter of domestication of the decreein the united states for the purpose of execution and di-rected that 470 million us dollars, which upon immediatepayment135and with interest over a reasonable period, pending actualdistribution amongst the claimants, would aggregate verynearly to 500 million us dollars or its rupee equivalent ofapproximately rs.750 crores which the learned attorneygeneral had suggested, be made the basis of the settlement.both the parties accepted this direction. the settlement proposals were considered on the premisethat government had the exclusive statutory authority torepresent andact on behalf of the victims and neithercounsel had any reservation as to this. the order was alsomade on the premise that the bhopal gas leak disaster(registration and processing of claims) act, 1985 was avalid law. in the event the act is declared void in thepending proceedings challenging its validity, the orderdated 14, february, 1989 would require to be examined in thelight of that decision. we should make it clear that if any material is placedbefore this court from which a reasonable inference ispossible that the union carbide corporation had, at any timeearlier, offered to pay any sum higher than an out-rightdown payment of us 470 million dollars, this court wouldstraightaway initiate suo motu action requiring the con-cerned parties to show cause why the order dated 14 febru-ary, 1989 should not be set aside and the parties relegatedto their respective original positions. the next question is as to the basis on which this courtconsidered this sum to be a reasonable one. this is notindependent of its quantification, the idea of reasonable-ness for the present purpose is necessarily a broad andgeneral estimate in the context of a settlement of thedispute and not on the basis of an accurate assessment by
adjudication. the question is how good or reasonable it isas a settlement, which would avoid delays, uncertainties andassure immediate payment. the estimate, in the very natureof things, cannot share the accuracy of an adjudication.here again one of the important considerations was the rangedisclosed by the offers and counter offers which was between426 million us dollars and 500 million us dollars. the courtalso examined certain materials available on record includ-ing the figures mentioned in the pleadings, the estimatemade by the high court and also certain figures referred toin the course of the arguments. there are a large number of claims under the act. in thevery nature of the situation, doubts that a sizeable numberof them are either without any just basis or were otherwiseexaggerated could not136be ruled out. it was, therefore, thought not unreasonable toproceed on some prima facie undisputed figures of cases ofdeath and of substantially compensatable personal injuries.the particulars of the number of persons treated at thehospitals was an important indicator in that behalf. thiscourt had no reason to doubt the bona fides of the figuresfurnished by the plaintiff itself in the pleadings as to thenumber of persons suffering serious injuries. from the order of the high court and the admitted posi-tion on the plaintiff's own side, a reasonable, prima facie,estimate of the number of fatal cases and serious personalinjury cases, was possible to be made. the high court said:
" ..... in the circumstances, leaving a small margin for the possibility of some of the claims relating to death and personal injuries made by the multitude of claims before the director of claims of the state government being spurious, there is no reason to doubt that the figure furnished by the plaintiff union of india in its amended plaint can be safely accepted for the purpose of granting the relief' of interim payment of damages. it has been stated by the plaintiff union of india that a total number of 2660 persons suffered agonising and excruciating deaths and between 30,000 to 40,000 sustained serious injuries as a result of the disas- ter ..... " (emphasis supplied)
there is no scope for any doubt that the cases referredto as those of 'serious injuries' include both types ofcases of permanent total and partial disabilities of variousdegrees as also cases of temporary total or partial disabil-ities of different degrees. the high court relied upon theaverments and claims in the amended pleadings of the plain-
tiff, the union of india, to reach this prima facie finding. then, in assessing the quantum of interimcompensationthe high court did not adopt the standards of compensationusually awarded in fatal-accidents-actions or personal-injury-actions arising under the motor vehicles act. it iswell-known that in fatal-accidentactions where children areconcerned, the compensation awardable is in conventionalsums ranging from rs.15,000 to rs.30,000 in each case. inthe present case a large number of deaths was of children ofvery young age. even in the case of adults, according to thegeneral run of damages in comparable cases, the damagesassessed on the137usual multiplier-method in the case of income groups com-parable to those of the deceased-persons, would be anywherebetween rs.80,000 and rs. 1,00,000. but the high court discarded, and rightly, these ordi-nary standards which, if applied, would havelimited theaggregate of compensation payable in fatal cases to a sumless than rs.20 crores in all. the high court thought itshould adopt the broader principle in m.c. mehta v. union ofindia, air 1987 sc 1086. stressing the need to apply such ahigher standard, the high court said:
"as mentioned earlier, the measure of damages payable by the alleged tort-teaser as per the nature of tort involved in the suit has to be correlated to the magnitude and the capacity of the enterprises because such compensation must have a deterrent effect ......... (emphasis supplied) applying these higher standards of compensa- tion, the high court proceeded to assess damage in the following manner: "bearing in mind, the above factors, in the opinion of this court, it would not be unrea- sonable to assume that if the suit proceeded to trial the plaintiff-union of india would obtain judgment in respect of the claims relating to deaths and personal injuries at least in the following amounts: (a) rs.2 lakhs in each case of death: (b) rs.2 lakhs in each case of total permanent disability; (c) rs.1 lakh in each case of permanent partial disa- blement and (d) rs.50,000 in each case of temporary partial disablement." (emphasis supplied)
half of these amounts were awarded as interim compensation.an amount of rs.250 crores was awarded. the figures adopted by the high court in regard to thenumber of fatal cases and cases of serious personal injuriesdo not appear to have been disputed by anybody before the
high court. these data and estimates of the high court had aparticular significance in the settlement. then again, itwas not disputed before us that the total number of fatalcases was about 3000 and of grievous and serious personalinjuries, as verifiable from the records of the hospitals ofcases treated138at bhopal, was in the neighbourhood of 30,000. it would notbe unreasonable to expect that persons suffering serious andsubstantially compensable injuries would have gone to hospi-tals for treatment. it would also appear that within about 8months of the occurrence, a survey had been conducted forpurposes of identification of cases of death and grievousand serious injuries for purposes of distribution of certainex gratia payments sanctioned by government. these figureswere, it would appear, less than ten thousand. in these circumstances, as a rough and ready estimate,this court took into consideration the prima facie findingsof the high court and estimated the number of fatal cases at3000 where compensation could range from rs.l lakh to rs.3lakhs. this would account for rs.70 crores, nearly 3 timeshigher than what would, otherwise, be awarded in comparablecasses in motor vehicles accident claims. death has an inexorable finality about it. human livesthat have been lost were precious and in that sense price-less and invaluable. but the law can compensate the estateof a person whose life is lost by the wrongful act of anoth-er only in the way of the law is equipped to compensate i.e.by monetary compensations calculated on certain well-recog-nised principles. "loss to the estate" which is the entitle-ment of the estate and the 'loss of dependancy' estimated onthe basis of capitalised present-value awardable to theheirs and dependants, are the main components in the compu-tation of compensation in fatal accident actions. but, thehigh court in estimating the value of compensation hadadopted a higher basis. so far as personal injury cases are concerned, about30,000 was estimated as cases of permanent total or partialdisability. compensation ranging from rs.2 lakhs tors.50,000 per individual according as the disability istotal or partial and degrees of the latter was envisaged.this alone would account for rs.250crores. in another20,000 cases of temporary total or partial disability com-pensation ranging from rs. 1 lakh down to rs.25,000 depend-ing on the nature and extent of the injuries and extent anddegree of the temporary incapacitation accounting for afurther allocation of rs. 100 crores, was envisaged. again,there might be possibility of injuries of utmost severity inwhich case even rs.4 lakhs per individual might have to beconsidered. rs.80 crores, additionally for about 2000 ofsuch cases were envisaged. a sum of rs.500 crores approxi-
mately was thought of as allocable to the fatal cases and42,000 cases of such serious personal injuries leavingbehind in their trail total or partial incapacitation eitherof permanent or temporary character.139 it was considered that some outlays would have to bemade for specialised institutional medical treatment forcases requiring such expert medical attention and for reha-bilitation and after care. rs.25 crores for the creation ofsuch facilities was envisaged. that would leave another rs.225 crores. it is true thatin assessing the interim compensation the high court hadtaken into account only the cases of injuries resulting inpermanent or temporary disabilities--total--or partial--andhad not adverted to the large number of other claims, saidto run into lakhs, filed by other claimants. such cases of claims do not, apparently, pertain toserious cases of permanent or temporary disabilities but arecases of a less serious nature, comprising claims for minorinjuries, loss of personal belongings, loss of live-stocketc. for which there was a general allocation of rs.225crores. if in respect of these claims allocations are madeat rs.20,000, rs. 15,000 and rs. 10,000 for about 50,000person or claims in each category--accounting for about oneand half lakhs more claims--the sums required would be metby rs.225 crores. looked at from another angle, if the corpus of rs.750crores along with the current market rates of interest oncorporate borrowings, of say 14% or 14 1/2 % is spent over aperiod of eight years it would make available rs. 150 croreseach year; or even if interest alone is taken, about rs. 105to 110 crores per year could be spent, year-afteryear,perpetually towards compensation and relief to the victims. the court also took into consideration the general runof damages in comparable accident claim cases and in casesunder workmens compensation laws. the broad allocations madeare higher than those awarded or awardable in such claims.these apportionments are merely broad considerations gener-ally guiding the idea of reasonableness of the overall basisof settlement. this exercise is not a predetermination ofthe quantum of compensation amongst the claimants eitherindividually or category-wise. no individual claimant shallbe entitled to claim a particular quantum of compensationeven if his case is found to fall within any of the broadcategories indicated above. the determination of the actualquantum of compensation payable to the claimants has to bedone by the authorities under the act, on the basis of thefacts of each case and without reference to the hypotheticalquantifications made only for purposes of an overall view ofthe adequacy of the amount.140
these are the broad and general assumptions underlyingthe concept of 'justness' of the determination of the quan-tum. if the total number of cases of death or of permanent,total or partial, disabilities or of what may be called'catastrophic' injuries is shown to be so large that thebasic assumptions underlying the settlement become whollyunrelated to the realities, the element of 'justness' of thedetermination and of the 'truth' of its factual foundationwould seriously be impaired. the 'justness' of the settle-ment is based on these assumptions of truth. indeed, theremight be different opinions on the interpretation of laws oron questions of policy or even on what may be consideredwise or unwise; but when one speaks of justice and truth,these words mean the same thing to all men whose judgment isuncommitted. of truth and justice, anatole france said:
"truth passes within herself a penetrating force unknown alike to error and falsehood. i say truth and you must understand my meaning. for the beautiful words truth and justice need not be defined in order to be understood in their true sense. they bear within them a shining beauty and a heavenly light. i firmly believe in the triumph of truth and justice. that is what upholds me in times of trial
......" as to the remaining question, it has been said that manyvital juristic principles of great contemporary relevance tothe third world generally, and to india in particular,touching problems emerging from the pursuit of such danger-ous technologies for economic gains by multi-nationals arosein this case. it is said that this is an instance of lostopportunity to this apex court to give the law the newdirection on vital issues emerging from the increasingdimensions of the economic exploitation of developing coun-tries by economic forces of the rich ones. this case also,it is said, concerns the legal limits to be envisaged, inthe vital interests of the protection of the constitutionalrights of the citizenry, and of the environment, on thepermissibility of such ultra-hazardous technologies and toprescribe absolute and deterrent standards of liability ifharm is caused by such enterprises. the prospect of exploi-tation of cheap labour and of captive-markets, it is said,induces multi-nationals to enter into the developing coun-tries for such economic-exploitation and that this waseminently an appropriate case for a careful assessment ofthe legal and constitutional safeguards stemming from thesevital issues of great contemporary relevance.these issues and certain cognate areas of even wider signif-icance141and the limits of the adjudicative disposition of some of
their aspects are indeed questions of seminal importance.the culture of modern industrial technologies, which issustained on processes of such pernicious potentialities, inthe ultimate analysis, has thrown open vital and fundamentalissues of technology-options. associated problems of theadequacy of legal protection against such exploitative andhazardous industrial adventurism, and whether the citizensof the country are assured the protection of a legal systemwhich could be said to be adequate in a comprehensive sensein such contexts arise. these, indeed, are issues of vitalimportance and this tragedy, and the conditions that enabledit happen, are of particular concern. the chemical pesticide industry is a concomitant, andindeed, an integral part, of the technology of chemicalfarming. some experts think that it is time to return fromthe high-risk, resource-intensive, high-input, anti-ecologi-cal, monopolistic 'hard' technology which feeds, and is fedon, its self-assertive attribute, to a more human and hu-mane, flexible, eco-conformable, "soft" technology with itssystemic-wisdom and opportunities for human creativity andinitiative. "wisdom demands" says schumacher" a new orienta-tion of science and technology towards the organic, thegentle, the non-violent, the elegant and beautiful". theother view stressing the spectacular success of agriculturalproduction in the new era of chemical farming, with high-yielding strains, points to the break-through achieved bythe green revolution with its effective response to, andsuccessful management of, the great challenges of feedingthe millions. this technology in agriculture has given a bigimpetus to enterprises of chemical fertilizers and pesti-cides. this, say its critics, has brought in its trail itsown serious problems. the technology-options before scien-tists and planners have been difficult. indeed, there is also need to evolve a national policyto protect national interests from such ultra-hazardouspursuits of economic gains. jurists, technologists and otherexperts in economics, environmentology, futurology, sociolo-gy and public health etc. should identify areas of commonconcern and help in evolving proper criteria which mayreceive judicial recognition and legal sanction. one aspect of this matter was dealt with by this courtin m.c. mehta v. union of india, (supra) which marked asignificant stage in the development of the law. but, at thehearing there was more than a mere hint in the submissionsof the union carbide that in this case the law was alteredwith only the union carbide corporation in mind, and142was altered to its disadvantage even before the case hadreached this court. the criticism of the mehta principle,perhaps, ignores the emerging postulates of tortious liabil-ity whose principal focus is the social-limits on economic
adventurism. there are certain things that a civilisedsociety simply cannot permit to be done to its members, evenif they are compensated for their resulting losses. we maynote a passage in "theories of compensation," r.e. goodin:oxford journal of legal studies, 1989, p. 57.
"it would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. such a proposition would mistake part of the policy universe for the whole. the set of policies to which it points--policies that are 'permissible' but only with compensa- tion'--is bounded on the one side by a set of policies that are 'permissible, even without compensation' and on the other side by a set of policies that are 'impermissible, even with compensation'."
but, in the present case, the compulsions of the needfor immediate relief to tens of thousands of sufferingvictims could not, in our opinion, wait till these ques-tions, vital though they be, are resolved in the due courseof judicial proceedings. the tremendous suffering of thou-sands of persons compelled us to move into the direction ofimmediate relief which, we thought, should not be subordi-nated to the uncertain promises of the law, and when theassessment of fairness of the amount was based on certainfactors and assumptions not disputed even by the plaintiff. a few words in conclusion. a settlement has been record-ed upon material and in circumstances which persuaded thecourt that it was a just settlement. this is not to say thatthis court will shut out any important material and compel-ling circumstances which might impose the duty on it toexercise the powers of review. like all other human institu-tions, this court is human and fallible. what appears to thecourt to be just and reasonable in that particular contextand setting, need not necessarily appear to others in thesame way. which view is right,in the ultimate analysis, isto be judged by what it does to relieve the undeservedsuffering of thousands of innocent citizens of this country.as a learned author said: wallace mendelson: supreme courtstatecraft--the rule of law and men.
"in this imperfect legal setting we expect judges to clear 143 their endless dockets, uphold the rule of law, 'and yet not utterly disregard our need for the discretionary justice of plato's philoso- pher king. judges must be sometimes cautious and sometimes bold. judges must respect both the traditions of the past and the convenience of the present........"
but the course of the decisions of courts cannot be reachedor altered or determined by agitational pressures. if adecision is wrong, the process of correction must be in amanner recognised by law. here, many persons and socialaction groups claim to speak for the victims, quite a few indifferent voices. the factual allegations on which they resttheir approach are conflicting in some areas and it becomesdifficult to distinguish truth from false-hood and half-truth, and to distinguish as to who speaks for whom. however, all of those who invoke the corrective-process-es in accordance with law shall be heard and the court willdo what the law and the course of justice requires. thematter concerns the interests of a large number of victimsof a mass disaster. the court directed the settlement withthe earnest hope that it would do them good and bring themimmediate relief, for, tomorrow might be too late formanyof them. but the case equally concerns the credibility of,and the public confidence in, the judicial process. if,owing to the pre-settlement procedures being limited to themain contestants in the appeal, the benefit of some contraryor supplemental information or material, having a crucialbearing on the fundamental assumptions basic to the settle-ment, have been denied to the court and that, as a result,serious miscarriage of justice, violating the constitutionaland legal rights of the persons affected, has been occa-sioned, it will be the endeavour of this court to undo anysuch injustice. but that, we reiterate, must be by proce-dures recognised by law. those who trust this court will nothave cause for despair.144
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