INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION ETC. V/S UNION OF INDIA AND ORS.ETC.

The principle “Polluter Pays” has gained almost universal recognition, apart from the fact that it is stated in absolute terms in Oleum Gas Leak Case. The law declared in the said decision is the law governing this case”

Case name: Indian council for enviro-legal action etc V/S Union of india & ors. etc
Citation: 1996 AIR 1446
Court: The supreme court of India
Bench: Justice Jeevan Reddy, Justice Kirpal
Decided on: FEBRUARY 13,1996
Relevant Act/Sections: Section 2{a}, 3, 5 of Environment [Protection] Act, 1986
  • BRIEF FACTS AND PROCEDURAL HISTORY:
  • Bichhri is a small village in Udaipur district of Rajasthan. To its north is a major industrial establishment, Hindustan Zinc Limited, a public sector concern. That did not affect Bichhri.
  • Its woes began somewhere in 1987 when the fourth respondent herein, Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum [said to be the concentrated form of Sulphuric acid] and Single Super Phosphate. The real calamity occurred when a sister concern, Silver Chemical [Respondent No.5], commenced production of ‘H’ acid in a plant located within the same complex. ‘H’ acid was meant for export exclusively.
  • Its manufacture gives rise to enormous quantities of highly toxic effluents – in particular, iron-based and gypsum-based sludge – which if not properly treated, pose grave threat to mother Earth.
  • All the units/factories of Respondents Nos.4 to 8 are situated in the same complex and are controlled by the same group of individuals. All the units are what may be called “chemical industries”.  The complex is located within the limits of Bichhri village.
  • Because of the pernicious wastes emerging from the production of ‘H’ acid, its manufacture is stated to have been banned in the western countries. But the need of ‘H’ acid continues in the West. That need is catered to by the industries like the Silver Chemicals and Jyoti Chemicals in this part of the world.
  • Silver Chemicals is stated to have produced 375 MT of ‘H’ acid. The quantity of ‘H’ acid produced by Jyoti Chemicals is not known. It says that it produced only 20mt., as trial production, and no more. Whatever quantity these two units may have produced, it has  given birth  to about  2400-2500 MT  of highly toxic sludge [iron-based  sludge and  gypsum-based sludge] besides other pollutants.
  • the toxic substances have percolated deep into the bowels of the earth polluting the aquifers and the subterranean supply of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption.  It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, the main stay of the villagers.
  • ISSUE BEFORE THE COURT:
  • Were the respondents responsible for the damage caused to the petitioner by their act of irresponsibly disposing off untreated waste?
  • RATIO OF THE COURT:
  • Silver Chemicals [R-5] and Jyoti Chemicals [R-8] had manufactured about 375 MT of ‘H’ acid during the years 198889. This had given rise to about 8250 m3 of wastewater and 2440 tons of sludge [both iron-based and gypsum-based]. The wastewater had partly percolated into the earth in and around Bichhri and part of it had flowed out. Out of 2440 tons of sludge, about 720 tones has been stored in the pits provided by the respondents.
  • The remaining sludge is still there either within the area of the complex of the respondents or outside their complex. With a view to conceal it from the eyes of the inspection teams and other authorities, the respondents have dispersed it all over the area and covered it with earth. The units manufacturing ‘H’ acid started manufacturing various chemicals without obtaining requisite clearances/consents/licences. They did not install any equipment for treatment of highly toxic effluents discharged by them. They continued to function even after and in spite of the closure orders of the R.P.C.B. They did never carry out the Orders of this Court fully, nor did they fulfil the undertaking given by them to the Court. That even after the closure of ‘H’ acid plant, the fourth respondent had not taken adequate measures for treating the highly toxic wastewater and other wastes emanating from the Sulphuric Acid Plant. The untreated highly toxic wastewater was found – by NEERI as well as the Central team – flowing through the dumps of iron/gypsum sludge creating a highly potent mix.
  • The damage caused by  the untreated  highly toxic wastes resulting  from the  production of ‘H’ acid  has  inflicted untold misery upon the  villagers and  long lasting damage to the soil, to the underground water and to the environment of that area in general. The Report of NEERI contains a sketch, at Page 178, showing the area that has been adversely affected by the production of ‘H’ acid by the respondents. A total area of 350 he has become seriously contaminated. The water in the wells in that area is not fit for consumption either by human beings or cattle.  It has seriously affected the productivity of the land.
  • Sections 3 and 5 of the Environment [Protection] Act, 1986, apart from other  provisions of Water and Air Acts, empower the Government to make all such directions and take all  such  measures as  are necessary  or  expedient  for protecting and promoting the ‘environment’, which expression has been defined in very wide and expansive terms in Section 2(a) of the Environment [Protection] Act. This power includes the power to prohibit an activity, close an industry, direct and/or carry out remedial measures, and wherever necessary impose the cost of remedial measures upon the offending industry. The principle “Polluter Pays” has gained almost universal recognition, apart from the fact that it is stated in absolute terms in Oleum Gas Leak Case. The law declared in the said decision is the law governing this case.
  • Respondents 4 to 8 shall pay a sum of Rupees fifty thousand by way of costs to the petitioner which had to fight this litigation over a period of over six years with its  own means. Voluntary bodies, like the petitioner, deserve encouragement wherever their actions are found to be in furtherance of public interest. The said sum shall be deposited in this Court within two weeks from today. It shall be paid over to the petitioner.

DIRECTIONS MADE BY THIS COURT:

  • The  Central Government shall determine  the  amount required for  carrying out  the remedial  measures including the removal  of sludge  lying in  and around  the complex of Respondents 4  to 8, in the area affected in village Bichhri and other adjacent villages, on account of the production of ‘H’ acid and the discharges from the Sulphuric Acid Plant of Respondents 4  to 8.  Chapters-VI and  VII in  NEERI  Report [submitted in  1994] shall  be deemed  to be  the show-cause notice  issued  by  the  Central  Government  proposing  the determination of the said amount. Within six weeks from this day, Respondents  4 to  8 shall  submit  their  explanation, along with  such  material  as  they  think  appropriate  in support  of  their  case,  to  the  Secretary,  Ministry  of Environment and  Forests, Government of India, [M.E.F.]. The Secretary  shall   thereupon   determine   the   amount   in consultation with  the experts  of his  Ministry within  six weeks of  the submission  of the  explanation  by  the  said Respondents. The  orders passed  by the  Secretary, [M.E.F.] shall be  communicated to  Respondents 4  to  8  –  and  all concerned –  and shall  also be  placed before  this  Court. Subject to  the Orders,  if any,  passed by  this Court, the said amount  shall represent  the amount which Respondents 4 to  8   are  liable  to  pay  to  improve  and  restore  the environment  in   the  area.   For  the   purpose  of  these proceedings, the  Secretary, [M.E.F.] and Respondents 4 to 8 shall proceed  on the  assumption that  the affected area is 350 ha,  as indicated  in the  sketch at  Page 178  of NEERI Report. In  case of  failure of  the said respondents to pay the said  amount, the same shall be recovered by the Central Government in  accordance with  law. The  factories,  plant, machinery and all other lmmovable assets of Respondents 4 to 8 are  attached  herewith.  The  amount  so  determined  and recovered shall  be utilised  by the M.E.F. for carrying out all necessary  remedial measures  to restore the soil, water sources and  the environment in general of the affected area to its former state.
  •  On account of their continuous, persistent and insolent violations of  law, their  attempts to  conceal the  sludge, their discharge  of toxic  effluents from the Sulphuric Acid Plant which  was allowed  to flow  through the  sludge,  and their non-implementation  of the  Orders of this Court – all of which  are fully  borne out  by  the  expert  committees’ Reports and  the findings recorded hereinabove – Respondents 4  to  8  have  earned  the  dubious  distinction  of  being characterised as  “rogue industries”.  They  have  inflicted untold  misery   upon  the   poor,  unsuspecting  villagers, despoiling their  land, their water sources and their entire environment – all in pursuance of their private profit. They have forfeited  all claims  for any  consideration  by  this Court. Accordingly, we herewith order the closure of all the plants and  factories of  Respondents  4  to  8  located  in Bichhri village.  The R.P.C.B.  is directed  to seal all the factories/units/plants of the said respondents forthwith. So far as  the Sulphuric  Acid Plant  is concerned,  it will be closed at  the end  of one  week from  today,  within  which period Respondent  No.4 shall wind down its operations so as to avoid  risk of  any untoward consequences, as asserted by Respondent No.4  in Writ  Petition (C)  No.76 of 1994. It is the responsibility  of Respondent  No.4  to  take  necessary steps in  this behalf. The R.P.C.B. shall seal this unit too at the  end of  one week from today. The re-opening of these plants  shall   depend  upon   their  compliance   with  the directions made  and obtaining  of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can  apply  for  directions  in  this  behalf  after  such compliance.
  • So far  as the  claim for damages for the loss suffered by the  villagers in  the affected  area is concerned, it is open  to  them  or  any  organization  on  their  behalf  to institute suits in the appropriate civil court. If they file the suit or suits in forma pauperize, the State of Rajasthan shall not  oppose their  applications for  leave to  sue  in forma pauperize.
  • The Central Government shall consider whether it would not be  appropriate, in  the light of the experience gained, that chemical  industries are  treated as  a category apart. Since the  chemical industries  are the main culprits in the matter of polluting the environment, there is every need for scrutinizing  their   establishment  and   functioning  more rigorously. No  distinction should be made in this behalf as between a large-scale industry and a small-scale industry or for that matter between a large-scale industry and a mediumscale industry.  All chemical  industries,  whether  big  or small, should be allowed to be established only after taking into considerations  all the environmental aspects and their functioning should  be monitored closely to ensure that they do not  pollute the environment around them. It appears that most of  these industries are water-intensive industries. If so, the  advisability of allowing the establishment of these industries in  arid areas may also require examination. Even the existing  chemical industries may be subjected to such a study and  if it  is found  on  such  scrutiny  that  it  is necessary to take any steps in the interests of environment, appropriate directions  in that  behalf may  be issued under Sections 3  and  5  of  the  Environment  Act.  The  Central Government shall  ensure that the directions given by it are implemented forthwith. 5.   The Central  Government and  the  R.P.C.B.  shall  file quarterly Reports  before this  Court with  respect  to  the progress  in   the  implementation  of  Directions  1  to 4 aforesaid.
  • DECISION HELD BY COURT:
  • In this case the judgment was given by JUSTICE JEEVAN REDDY Writ Petition (C) No.967 of 1989 is allowed with the above directions with costs as specified hereinabove. WRIT PETITION (C) NO.76 OF 1994: In view of the decision in Writ Petition (C) No.967 of 1989, the writ petition is dismissed. No costs.    
  • WRIT PETITION (C) NO.94 OF 1990: In view of the decision in Writ Petition (C) No.967 of 1989, no separate Orders are necessary in this petition. The writ petition is accordingly dismissed. No costs. WRIT PETITION (C) NO.824 OF 1993:   
  • In view of the decision in Writ Petition (C) No.967 of 1989, no separate Orders are necessary in this petition.
  • The writ petition is accordingly dismissed. No costs

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